Master Equipment Lease 05/19/2023 BUTLER LL.P
MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT AND
EQUIPMENT SCHEDULE NO. 1
(HELICOPTERS)
BANC OF AMERICA PUBLIC CAPITAL CORP ("LESSOR")
MONROE COUNTY, FLORIDA ("LESSEE")
AGUSTAWESTLAND PHILADELPHIA CORPORATION ("SELLER")
MAY 1% 2023
80154285.v1
CLOSING INDEX
MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT AND
EQUIPMENT SCHEDULE NO.1
BANC OF AMERICA PUBLIC CAPITAL CORP,AS "BAPCC"
MONROE COUNTY,FLORIDA,AS "COUNTY"
AGUSTAWESTLAND PHILADELPHIA CORPORATION,AS "SELLER"
CLOSING DATE: MAY 19,2023
RESPONSIBLE
ITEM PARTY
1. Master Equipment Lease/Purchase Agreement BS
2. Equipment Schedule No. 1 with Payment Schedule BS
3. Aircraft Addendum BS
4. First Amendment to Aircraft Addendum BS
5. Escrow Agreement BS
6. Evidence of Board Approval County
7. Incumbency Certificate of Lessee (MELPA form) BS
8. General Incumbency Certificate NGN
9. Signature Certificate NGN
10. General Certificate NGN
11. Certificate as to Arbitrage and Other Matters NGN
12. Form 8038-G NGN
13. Validity Opinion of Counsel to Lessee County Counsel
14. Tax Opinion of Bond Counsel NGN
15. Sales/Use Tax Exemption Certificate County
16. W-9 County
17. Payment and Performance Bond (post-closing) Seller
County: County of Monroe, Florida
Seller: Agustawestland Philadelphia Corporation
BAPCC: Banc of America Public Capital Corp
BS: Butler Snow
DFPHJ: Daugherty Fowler Peregrin Haught& Jenson
NGN: Nabors Giblin & Nickerson
69334937.0
MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT
This Master Equipment Lease/Purchase Agreement (the "Agreement") dated as of May
19, 2023, and entered into by and between BANC OF AMERICA PUBLIC CAPITAL CORP, a Kansas
corporation(together with its successors, assigns and transferees, and as more particularly defined
herein, `Lessor"), and MONROE COUNTY,FLORIDA, a political subdivision of the State of Florida
("Lessee
WITNESSETH:
WHEREAS, Lessee desires to lease and acquire from Lessor certain Equipment described in
each Equipment Schedule(as each such term is defined herein),subject to the terms and conditions
of and for the purposes set forth in each Lease (as such term is defined herein); and
WHEREAS, the relationship between the parties shall be a continuing one and items of
equipment and other personal property may be financed pursuant to one or more Leases entered
into from time to time in accordance with this Agreement by execution and delivery of additional
Equipment Schedules by the parties hereto, subject to the terms and conditions provided herein;
and
WHEREAS, Lessee is authorized under the constitution and laws of the State (as such term
is defined herein) to enter into this Agreement and each Equipment Schedule for the purposes set
forth herein and therein;
Now, THEREFORE, for good and valuable consideration, receipt and sufficiency of which
are hereby acknowledged, and in consideration of the premises hereinafter contained, the parties
hereby agree as follows:
ARTICLE I
Section 1.01. Definitions. The following terms will have the meanings indicated below
unless the context clearly requires otherwise:
"Acquisition Amount" means, with respect to each Lease, the amount specified in the
related Equipment Schedule and represented by Lessee to be sufficient for the purpose of acquiring
and installing the Equipment listed in such Lease.
"Acquisition Period"means, with respect to each Lease for which an Escrow Account is
established,that period identified in the related Equipment Schedule during which the Acquisition
Amount attributable to such Lease may be expended on Equipment Costs pursuant to the related
Escrow Agreement.
"Agreement" means this Master Equipment Lease/Purchase Agreement, including the
exhibits hereto,together with any amendments and modifications made to this Agreement pursuant
to Section 13.04.
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"Casualty Value" means, with respect to each Lease, the amount that is shown on the
Payment Schedule for each Rental Payment Date under the column titled either(i)the Prepayment
Price or(ii)the "Casualty Value", if any.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
Section of the Code in this Agreement and a Lease shall be deemed to include the relevant United
States Treasury Regulations proposed or in effect thereunder.
"Commencement Date"means, for each Lease, the date when Lessee's obligation to pay
rent commences under such Lease, which date shall be the earlier of (a) the date on which the
Equipment listed in such Lease is accepted by Lessee in the manner described in Section 5.01, or
(b)the date on which the Acquisition Amount is deposited in an Escrow Account for the purpose
of acquiring and installing the Equipment listed in such Lease.
"Contract Rate"means,with respect to each Lease,the rate identified as such in the related
Payment Schedule.
"Disbursement Request"means,with respect to each Lease for which an Escrow Account
is established,the disbursement request attached to the applicable Escrow Agreement as Schedule
1 and made a part thereof.
"Equipment" means, with respect to each Lease, the property listed in the related
Equipment Schedule and all replacements, repairs, restorations, modifications and improvements
thereof or thereto made pursuant to Article V or Section 8.01. Whenever reference is made in this
Agreement to Equipment listed in a Lease, such reference shall be deemed to include all such
replacements, repairs, restorations, modifications and improvements of or to such Equipment.
"Equipment Costs" means, with respect to each Lease, the total cost of the Equipment
listed in the related Equipment Schedule, including related soft costs such as freight, installation
and taxes and other capitalizable costs, legal fees, financing costs and other costs necessary to vest
full, clear legal title to the Equipment in Lessee, and other costs incurred in connection with the
acquisition, installation and/or financing of the Equipment as provided in the related Lease;
provided that(a) any such soft costs on a cumulative basis shall not exceed a percentage approved
by Lessor of the total cost of the Equipment subject to such Lease and (b) in no event shall
capitalizable delivery costs, installation charges, taxes and similar capitalizable soft costs relating
to such Equipment be included without Lessor's prior consent.
"Equipment Schedule" means each separately numbered Equipment Schedule,
substantially in the form of either Exhibit A-] (general Equipment) or ExhibitA-2(energy services
Equipment) hereto, together with the related Payment Schedule.
"Escrow Account"means, with respect to any Lease, the account established and held by
the Escrow Agent pursuant to the related Escrow Agreement.
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"Escrow Agent" means, with respect to each Lease for which an Escrow Account is
established, the Escrow Agent identified in the related Escrow Agreement, and its successors and
assigns.
"Escrow Agreement" means, with respect to each Lease for which an Escrow Account is
established, an Escrow Agreement in form and substance acceptable to and executed by Lessee,
Lessor and the Escrow Agent, pursuant to which an Escrow Account is established and
administered.
"Event ofDefault"means an Event of Default described in Section 12.01.
"Event of Non-appropriation" means, with respect to a Lease, the failure of Lessee's
governing body to appropriate or otherwise make available funds to pay Rental Payments under
such Lease following the Original Term or then current Renewal Term sufficient for the continued
performance of such Lease by Lessee. An Event of Non-appropriation shall not be considered an
Event of Default hereunder.
"Lease" means an Equipment Schedule and the terms and provisions of this Agreement
which are incorporated by reference into such Equipment Schedule.
"Lease Term" means, with respect to each Lease, the Original Term and all Renewal
Terms provided in the related Equipment Schedule.
"Lessee"means the entity referred to as Lessee in the first paragraph of this Agreement.
"Lessor"means (a)the entity referred to as Lessor in the first paragraph of this Agreement
and its successors or (b) any assignee or transferee pursuant to Section 11.01 of any right, title or
interest of Lessor in and to the Equipment under the applicable Lease (including the Rental
Payments and other amounts due thereunder), any related Escrow Agreement and Escrow
Account, but does not include any entity solely by reason of that entity retaining or assuming any
obligation of Lessor to perform hereunder or under such Lease.
"Material Adverse Change"means (a) any change in Lessee's creditworthiness that could
have a material adverse effect on(i)the financial condition or operations of Lessee,or(ii) Lessee's
ability to perform its obligations under this Agreement or any Lease or(b) a downgrade in Lessee's
external debt rating from the date of this Agreement of two or more subgrades by either Moody's
Investors Service, Inc. or S&P Global Ratings or any equivalent successor credit rating agency, or
any downgrade by either such agency that would cause Lessee's credit rating to be below
investment grade, or, if any such rating agency no longer publishes such ratings at the date of
determination, any other nationally recognized statistical rating organization that is selected by
Lessee for purposes of such long-term general obligation bond ratings and long-term general fund
related bond ratings.
"Original Term"means, with respect to each Lease, the period from the Commencement
Date identified in the related Equipment Schedule until the end of the fiscal year of Lessee in effect
at such Commencement Date.
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"Outstanding Balance" means, with respect to each Lease, the amount that is shown for
each Rental Payment Date under the column titled "Outstanding Balance" on the Payment
Schedule.
"Payment Schedule"means,with respect to each Lease,the Payment Schedule attached to
and made a part of the related Equipment Schedule and substantially in the form of Exhibit B
attached to this Agreement.
"Prepayment Price"means, with respect to each Lease, the amount that is shown for each
Rental Payment Date under the column titled"Prepayment Price" on the Payment Schedule.
"Principal Portion"means, with respect to each Lease,the amount that is shown for each
Rental Payment Date under the column titled"Principal Portion" on the Payment Schedule.
"Related Documents" means, with respect to each Lease, the Lease, this Agreement and,
if applicable, the related Escrow Agreement, each as may be amended and supplemented.
"Renewal Terms" means, with respect to each Lease, the consecutive renewal terms of
such Lease as specified in the related Equipment Schedule, the first of which commences
immediately after the end of the Original Term and each having a duration and a term coextensive
with each successive fiscal year of Lessee; provided that the final such Renewal Term shall
commence on the first day of the last such fiscal year and end on the first business day after the
last scheduled Rental Payment Date.
"Rental Payment Date"means, with respect to each Lease, each date on which Lessee is
required to make a Rental Payment under such Lease as specified in the related Payment Schedule.
"Rental Payments"means, with respect to each Lease, the basic rental payments payable
by Lessee on the Rental Payment Dates and in the amounts as specified in the related Payment
Schedule, consisting of a principal component and an interest component, and in all cases
sufficient to repay the principal component under such Lease and interest thereon at the applicable
Contract Rate (or Taxable Rate if then in effect).
"SEC' means the U.S. Securities and Exchange Commission.
"State"means the State of Florida.
"Taxable Rate"means,with respect to each Lease,for each day that the interest component
of Rental Payments is taxable for Federal income tax purposes, an interest rate equal to the
Contract Rate plus a rate sufficient such that the total interest to be paid on any Rental Payment
Date would, after such interest was reduced by the amount of any Federal, state or local income
tax (including any interest, penalties or additions to tax) actually imposed thereon, equal the
amount of interest otherwise due to Lessor.
"Vendor" means the manufacturer, installer or supplier of the Equipment listed in an
Equipment Schedule or any other person as well as the agents or dealers of the manufacturer,
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installer or supplier with whom Lessee arranged Lessee's acquisition, installation, maintenance
and/or servicing of the Equipment pursuant to the applicable Lease.
"Vendor Agreement" means any contract entered into by Lessee and any Vendor for the
acquisition, installation, maintenance and/or servicing of the Equipment under a Lease.
ARTICLE II
Section 2.01. Representations and Covenants ofLessee. Lessee represents, covenants and
warrants for the benefit of Lessor on the date hereof and as of the Commencement Date of each
Lease as follows:
(a) Lessee is a 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, with full power and authority to enter into the Related Documents and the
transactions contemplated thereby and to perform all of its obligations thereunder.
(b) Lessee has duly authorized the execution and delivery of the Related
Documents by proper action of its governing body at a meeting duly called, regularly
convened and attended throughout by the requisite quorum of the members thereof, or by
other appropriate official approval, and all requirements have been met and procedures
have occurred in order to ensure the validity and enforceability of the Related Documents.
(c) No event or condition that constitutes, or with the giving of notice or the
lapse of time or both would constitute, an Event of Default exists at the date hereof. No
Event of Non-appropriation has occurred or is threatened with respect to any Lease.
(d) Lessee will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence as a political subdivision of the State.
(e) Lessee has complied with such procurement and public bidding
requirements as may be applicable to the Related Documents and the acquisition and
installation by Lessee of the Equipment as provided in each Lease.
(f) During the Lease Term under each Lease, the Equipment will be used by
Lessee only for the purpose of performing essential governmental or proprietary functions
of Lessee consistent with the permissible scope of Lessee's authority. Lessee does not
intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last
Rental Payment (including all Renewal Terms) scheduled to be paid under the related
Lease.
(g) Lessee has kept, and throughout the Lease Term of each Lease shall keep,
its books and records in accordance with generally accepted accounting principles and
practices consistently applied, and shall deliver to Lessor (i) annual audited financial
statements (including (1) a balance sheet, (2) statement of revenues, expenses and changes
in fund balances for budget and actual, (3) statement of cash flows, and (4) footnotes,
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schedules and attachments to the financial statements) within two hundred seventy (270)
days after the end of its fiscal year, (ii) such other financial statements and information as
Lessor may reasonably request, and (iii)upon Lessor's request, its annual budget for any
prior or current fiscal year or for the following fiscal year when approved but not later than
thirty (30) days prior to the end of its current fiscal year. The financial statements described
in this subsection (g)(i) shall be accompanied by an unqualified opinion of Lessee's
independent auditor. Credit information relating to Lessee may be disseminated among
Lessor and any of its affiliates and any of their respective successors and assigns.
(h) Lessee will have an immediate need for the Equipment listed on each
Equipment Schedule at the time it executes each Equipment Schedule and expects to make
immediate use of the Equipment listed on each Equipment Schedule. Lessee's need for the
Equipment listed on each Equipment Schedule will not be temporary at the time it executes
such Equipment Schedule and Lessee does not expect the need for any item of the
Equipment to diminish during the related Lease Term.
(i) The payment of the Rental Payments or any portion thereof is not (under
the terms of any Lease or any underlying arrangement) directly or indirectly (x) secured by
any interest in property used or to be used in any activity carried on by any person other
than a state or local governmental unit or payments in respect of such property; or(y) on a
present value basis, derived from payments (whether or not to Lessee) in respect of
property, or borrowed money, used or to be used in any activity carried on by any person
other than a state or local governmental unit. The Equipment will not be used, directly or
indirectly, in any activity carried on by any person other than a state or local governmental
unit. No portion of the Acquisition Amount relating to any Lease will be used, directly or
indirectly,to make or finance loans to any person other than Lessee. Lessee has not entered
into any management or other service contract with respect to the use and operation of the
Equipment, except as may be specifically set forth and permitted under an Equipment
Schedule relating to such Equipment.
0) There is no pending litigation, tax claim, proceeding or dispute that may
adversely affect Lessee's financial condition or impairs its ability to perform its obligations
under the Related Documents. Lessee will, at its expense, maintain its legal existence and
do any further act and, to the extent permitted by law, execute, acknowledge, deliver, file,
register and record any further documents Lessor may reasonably request in order to protect
Lessor's rights and benefits under each Lease and related Escrow Agreement.
(k) Lessee is, or will be, the fee owner of the real estate where the Equipment
under each Lease is and will be located(the"Real Property") and has good and marketable
title thereto, and there exists no mortgage, pledge, lien, security interest, charge or other
encumbrance of any nature whatsoever on or with respect to such Real Property, except as
may otherwise be described on any Schedule hereto. To the extent the Equipment is located
on real property of which Lessee is not the fee owner, Lessee shall take all necessary steps,
to the satisfaction of Lessor in its discretion, to provide for the entry of Lessor onto said
property for the purposes of exercising Lessor's rights hereunder, including but not limited
to, inspecting the Equipment and/or exercising its remedies hereunder upon a non-
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appropriation or an Event of Default hereunder.
(1) No lease, rental agreement, lease-purchase agreement, payment agreement
or contract for purchase to which Lessee has been a parry at any time 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 which Lessee has issued during the past ten (10)years.
(m) Lessee has complied and will comply with Section 218.38, Florida Statutes,
with respect to each Lease.
(n) The interest rate for the interest portion of the Rental Payments on the first
date that interest begins to accrue with respect to each Lease, will not exceed a rate of
interest permitted by Section 215.84, Florida Statutes.
(o) In connection with the Lessee's compliance with any continuing disclosure
undertakings (each, a "Continuing Disclosure Agreement") entered into by the Lessee
pursuant to SEC Rule 15c2-12 promulgated pursuant to the Securities and Exchange Act
of 1934, as amended (the "Rule"), the Lessee may be required to file with the Municipal
Securities Rulemaking Board's Electronic Municipal Market Access system, or its
successor ("EMMA"), notice of its incurrence of its obligations under the Related
Documents and notice of any accommodation, waiver, amendment, modification of terms
or other similar events reflecting financial difficulties in connection with the Related
Documents, in each case including posting a full copy thereof or a description of the
material terms thereof (each such posting, an "EMMA Posting"). Except to the extent
required by applicable law, including the Rule,the Lessee shall not file or submit or permit
the filing or submission of any EMMA Posting that includes the following unredacted
confidential information about the Lessor or its affiliates and any Escrow Agent in any
portion of such EMMA Posting: address and account information of the Lessor or its
affiliates and any Escrow Agent; e-mail addresses telephone numbers,fax numbers,names
and signatures of officers, employees and signatories of the Lessor or its affiliates and any
Escrow Agent; and the form of Disbursement Request that is attached to the Escrow
Agreement.
The Lessee acknowledges and agrees that the Lessor and its affiliates are not
responsible for the Lessee's or any other entity's (including,but not limited to, any broker-
dealer's) compliance or noncompliance (or any claims, losses or liabilities arising
therefrom) with the Rule, any Continuing Disclosure Agreement or any applicable
securities or other laws, including but not limited to those relating to the Rule.
Section 2.02. Representations and Covenants of Lessor. Lessor represents, covenants
and warrants for the benefit of Lessee on the date hereof and as of the Commencement Date of
each Lease as follows:
(a) Lessor is a corporation duly organized and existing under the constitution and laws
of the State of Kansas, with full power and authority to enter into the Related
68780249.v2
Documents and the transactions contemplated thereby and to perform all of its
obligations thereunder.
(b) Lessor has and will comply with Section 218.385(2) and Section 218.385(3),
Florida Statutes,with respect to each Lease, as applicable.
ARTICLE III
Section 3.01. Lease of Equipment. Subject to the terms and conditions of this Agreement,
Lessor agrees to provide the funds specified in each Lease to be provided by it for Lessee to acquire
the Equipment described in the related Equipment Schedule. Upon the execution and delivery of
each Lease, Lessor thereby demises, leases and transfers to Lessee, and Lessee thereby acquires,
rents and leases from Lessor, the Equipment as set forth in such Lease and in accordance with the
terms thereof. The Lease Term for each Lease may be continued, solely at the option of Lessee, at
the end of the Original Term or any Renewal Term for the next succeeding Renewal Term up to
the maximum Lease Term set forth in such Lease. At the end of the Original Term and at the end
of each Renewal Term until the maximum Lease Term has been completed, Lessee shall be
deemed to have exercised its option to continue each Lease for the next Renewal Term unless
Lessee shall have terminated such Lease pursuant to Section 3.03 or Section 10.01 of this
Agreement. The terms and conditions during any Renewal Term shall be the same as the terms
and conditions during the Original Term, except that the Rental Payments shall be as provided in
the applicable Lease Payment Schedule. Each Equipment Schedule signed and delivered by Lessor
and Lessee pursuant to this Agreement shall constitute a separate and independent lease and
installment purchase of the Equipment therein described.
Section 3.02. Continuation of Lease Term. Lessee intends, subject in all respects to
Section 3.03 hereof, to continue the Lease Term of each Lease through the Original Term and all
Renewal Terms and to pay the Rental Payments due thereunder. Lessee affirms that sufficient
funds are legally available for the current fiscal year, and Lessee reasonably believes that an
amount sufficient to make all Rental Payments during the entire Lease Term of each Lease can be
obtained from legally available funds of Lessee. Lessee further intends to do all things lawfully
within its power to obtain and maintain funds sufficient and available to discharge its obligation
to make Rental Payments due under each Lease, including making provision for such payments to
the extent necessary in each budget or appropriation request submitted and adopted in accordance
with applicable provisions of law. Notwithstanding the foregoing, the decision whether or not to
budget and appropriate funds or to extend the Lease Term for any Renewal Term for each Lease
is within the sole discretion of the governing body of Lessee.
Section 3.03. Non-appropriation. Lessee is obligated only to pay such Rental Payments
under each Lease as may lawfully be made during Lessee's then current fiscal year from legally
available funds budgeted and appropriated for that purpose. Should Lessee fail to budget,
appropriate or otherwise make available funds to pay Rental Payments under any Lease following
the then current Original Term or Renewal Term, such Lease or Leases shall be deemed terminated
at the end of the then current Original Term or Renewal Term thereunder. Lessee agrees to deliver
notice to Lessor of such termination promptly after any decision to non-appropriate is made, but
failure to give such notice shall not extend the term beyond such Original Term or Renewal Term.
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If any Lease is terminated in accordance with this Section 3.03, Lessee agrees to cease use of the
Equipment thereunder and peaceably remove and deliver to Lessor, at Lessee's sole expense(from
legally available funds), such Equipment to Lessor at the location(s) to be specified by Lessor on
or before the end of the applicable Original Term or Renewal Term for which Rental Payments
have been appropriated for the applicable Lease (each, a "Non-Appropriation Return Date").
Without limiting or reducing in any way Lessee's obligations in the preceding sentence, if the
Lessee fails to return the Equipment to Lessor on or before the applicable Non-Appropriation
Return Date pursuant to this Section 3.03, Lessee shall either (i) pay month-to-month rent at the
Contract Rate (or the Taxable Rate if then in effect) set forth in the affected Lease for each month
or part thereof that Lessee fails to return the Equipment thereunder pursuant to this Section 3.03
or(ii)prepay all of the obligations under such Lease pursuant to Section 10.01 hereof.
Upon an Event of Non-appropriation, if the Lessor sells, leases or otherwise disposes of
any or all of the Equipment and receives funds in excess of the aggregate remaining Rental
Payments relating to such Equipment, the Lessee shall be entitled to such excess as its equity in
such Equipment.
Section 3.04. Conditions to Lessor's Performance. (a) As a prerequisite to the performance
by Lessor of any of its obligations pursuant to any Lease, Lessee shall deliver to Lessor, in form
and substance satisfactory to Lessor,the following:
(i) A fully completed Equipment Schedule, executed by Lessee;
(ii) If an Escrow Account is to be established with respect to such Lease, an
Escrow Agreement substantially in the form attached hereto as Exhibit L satisfactory to
Lessor and executed by Lessee and the Escrow Agent;
(iii) A certified copy of a resolution, ordinance or other official action of
Lessee's governing body, substantially in the form attached hereto as Exhibit C-IA or
Exhibit GIB, as applicable, or such other form approved by Lessor, authorizing the
execution and delivery of this Agreement and the applicable Lease and related Escrow
Agreement, if any, entered into pursuant hereto and performance by Lessee of its
obligations under this Agreement and the applicable Lease and related Escrow Agreement,
if any, entered into pursuant hereto;
(iv) A Certificate completed and executed by the Clerk or Secretary or other
comparable officer of Lessee, substantially in the form attached hereto as Exhibit C-2A or
Exhibit C-2B, as applicable, or such other form approved by Lessor, completed to the
satisfaction of Lessor;
(v) An opinion of counsel to Lessee, substantially in the form attached hereto
as Exhibit and otherwise satisfactory to Lessor;provided however, different portions of
such opinion may be delivered by the County Attorney for the Lessee and Bond Counsel
to the Lessee;
(vi) Evidence of insurance as required by Section 7.02 hereof,
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(vii) All documents, including financing statements, affidavits, notices and
similar instruments, which Lessor deems necessary or appropriate at that time pursuant to
Section 6.02 hereof,
(viii) A waiver or waivers of interest in the Equipment from any mortgagee or
any other party having an interest in the real estate on which the Equipment will be located
and/or landlord of the real estate on which the Equipment will be located;
(ix) Reserved;
(x) A copy of the Form 8038-G with respect to the Lease then being entered
into, fully completed and executed by Lessee;
(xi) In the event that Lessee is to be reimbursed for expenditures that it has paid
more than [ninety (90)] days prior to the Commencement Date for the Lease then being
entered into, evidence of the adoption of a reimbursement resolution or other official action
covering the reimbursement from tax exempt proceeds of expenditures incurred not more
than sixty (60) days prior to the date of such resolution, unless such reimbursements meet
the de minimis exception set forth in Treas. Reg. section 1.150-2;
(xii) If any items of Equipment are motor vehicles, properly completed
certificates of title or certificates of origin (or applications therefor) for such vehicles with
Lessor's interest noted thereon in accordance with the instructions of Lessor;
(xiii) Copies of invoices (and proofs of payment of such invoices, if Lessee seeks
reimbursement) and bills of sale (if title to Equipment has passed to Lessee), to the extent
required by Section 5.01(b) hereof,
(xiv) Wire instructions for payments to be made to Vendors and Form W-9 from
each such Vendor; and
(xv) Such other items as are set forth in the related Equipment Schedule,
including but not limited to any additional items required pursuant to a helicopter
addendum, or are reasonably required by Lessor.
(b) In addition to satisfaction of the conditions set forth in subsection (a) of this
Section 3.04, the performance by Lessor of any of its obligations under the Related Documents
shall be subject to: (i)no Material Adverse Change having occurred since the date of this
Agreement, (ii)no Event of Default having occurred and then be continuing under any Lease then
in effect, (iii)no Event of Non-appropriation under any Lease then in effect having occurred or
being threatened, and (iv)no Lease having been terminated as the result of the occurrence of an
Event of Default or an Event of Non-appropriation.
(c) Subject to satisfaction of the foregoing, (i) Lessor will pay the Acquisition Amount
for Equipment described in an Equipment Schedule to the Vendor or reimburse Lessee for its prior
expenditures with respect to such Equipment(subject to satisfaction of Section 3.04(a)(xi)hereof),
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upon receipt of the documents described in Sections 5.01(a) and (b) hereof, or (ii) if an Escrow
Account is being established with respect to the related Lease, Lessor will deposit the Acquisition
Amount for Equipment described in the applicable Equipment Schedule with the Escrow Agent to
be held and disbursed pursuant to the related Escrow Agreement.
(d) This Agreement is not a commitment by Lessor or Lessee to enter into any Lease not
currently in existence, and nothing in this Agreement shall be construed to impose any obligation
upon Lessor or Lessee to enter into any proposed Lease, it being understood that whether Lessor
or Lessee enters into any proposed Lease shall be a decision solely within their respective
discretion.
(e) Lessee will cooperate with Lessor in Lessor's review of any proposed Lease. Without
limiting the foregoing, Lessee will provide Lessor with any documentation or information Lessor
may request in connection with Lessor's review of any proposed Lease. Such documentation may
include, without limitation, documentation concerning the Equipment and its contemplated use
and location and documentation or information concerning the financial status of Lessee and other
matters related to Lessee.
(f) In the event of any conflict in terms between an Equipment Schedule and this
Agreement, the terms of the Equipment Schedule shall control in the interpretation of the Lease
created thereby.
Section 3.05. Substitution. Lessee reserves the right to substitute Equipment of the same
quantity and general type with the approximate equal value,utility and remaining useful life as the
Equipment so replaced. So long as the Lease related to such Equipment is in effect, Lessee shall
immediately notify Lessor of the details of the substitution and such substitution shall be reflected
in an amendment to the Schedule.
ARTICLE IV
Section 4.01. Rental Payments. Subject to Section 3.03 of this Agreement, Lessee shall
promptly pay Rental Payments, in lawful money of the United States of America,to Lessor on the
Rental Payment Dates and in such amounts as provided in each Lease. If any Rental Payment or
other amount payable hereunder is not paid within ten (10) days of its due date, Lessee shall pay
an administrative late charge of five percent(5%) of the amount not timely paid or the maximum
amount permitted by law, whichever is less. In accordance with Section 149(b) of the Internal
Revenue Code, Lessee shall not permit any Rental Payments under any Lease to be directly or
indirectly guaranteed by the federal government or any agency or instrumentality of the federal
government. Rental Payments consist of principal and interest components as more fully detailed
on the Payment Schedule for each Lease, the interest on which begins to accrue as of the
Commencement Date for each such Lease.
Section 4.02. Interest and Principal Components. A portion of each Rental Payment is paid
as, and represents payment of, interest, and the balance of each Rental Payment is paid as, and
represents payment of,principal. Each Lease shall set forth the principal and interest components
of each Rental Payment payable thereunder during the applicable Lease Term.
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Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. Lessor and
Lessee understand and intend that the obligation of Lessee to pay Rental Payments under each
Lease shall constitute a current expense of Lessee payable solely from its general fund or other
funds that are legally available for that purpose and shall not in any way be construed to be a debt
of Lessee in contravention of any applicable constitutional or statutory limitation or requirement
concerning the creation of indebtedness by Lessee,nor shall anything contained in this Agreement
or in any Lease constitute a pledge of the general tax revenues, funds or moneys of Lessee. THE
RENTAL PAYMENTS ARE TO BE MADE ONLY FROM LESSEE'S LEGALLY
AVAILABLE REVENUES APPROPRIATED ON AN ANNUAL BASIS, AND NEITHER
LESSEE, THE STATE NOR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF
SHALL BE OBLIGATED TO PAY ANY SUMS DUE UNDER A LEASE FROM THE
COMPELLED LEVY OF AD VALOREM OR OTHER TAXES EXCEPT FROM THOSE
LEGALLY AVAILABLE REVENUES APPROPRIATED BY LESSEE ON AN ANNUAL
BASIS, AND NEITHER THE FULL FAITH AND CREDIT NOR THE TAXING POWER OF
LESSEE, THE STATE OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF ARE
PLEDGED FOR PAYMENT OF SUCH SUMS DUE UNDER A LEASE. THE LESSOR SHALL
NEVER HAVE THE RIGHT TO COMPEL THE AD VALOREM TAXING POWER OF THE
LESSEE TO MAKE ANY PAYMENTS UNDER A LEASE.
Section 4.04. Rental Payments to be Unconditional. Except as provided in Section 3.03 of
this Agreement, the obligations of Lessee to make Rental Payments and to perform and observe
the other covenants and agreements contained in each Lease shall be absolute and unconditional
in all events without abatement, diminution, deduction, set-off or defense, for any reason,
including without limitation any failure of the Equipment, disputes with the Lessor or the Vendor
of any Equipment, any defects, malfunctions, breakdowns or infirmities in the Equipment or any
accident, condemnation or unforeseen circumstances or failure of any Vendor to deliver any
Equipment or otherwise perform any of its obligations for whatever reason, including bankruptcy,
insolvency,reorganization or any similar event with respect to any Vendor.
Section 4.05. Tax Covenants. Lessee agrees that it will not take any action that would cause
the interest component of Rental Payments to be or to become ineligible for the exclusion from
gross income of the owner or owners thereof for Federal income tax purposes, nor will it omit to
take or cause to be taken, in a timely manner, any action,which omission would cause the interest
component of Rental Payments to be or to become ineligible for the exclusion from gross income
of the owner or owners thereof for Federal income tax purposes. In connection with the foregoing,
Lessee hereby agrees that (a) so long as any Rental Payments under a Lease remain unpaid,
moneys on deposit in the Escrow Account under any Escrow Agreement related to such Lease
shall not be used in a manner that will cause such Lease to be classified as an "arbitrage bond"
within the meaning of Section 148(a) of the Code; and(b) Lessee shall rebate, from funds legally
available for the purpose, an amount equal to excess earnings on the Escrow Account under any
Escrow Agreement to the Federal Government if required by, and in accordance with,
Section 148(f) of the Code, and make the determinations and maintain the records required by the
Code.
Section 4.06. Event of Taxability. Upon the occurrence of an Event of Taxability (as
defined below) with respect to a Lease, the interest component of Rental Payments under such
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Lease and any charge on Rental Payments or other amounts payable based on the Contract Rate
shall have accrued and be payable at the Taxable Rate applicable to such Lease retroactive to the
date as of which the interest component is determined by the Internal Revenue Service to be
includible in the gross income of the owner or owners thereof for Federal income tax purposes
(which retroactive date for such Lease shall be the earliest date as of which the interest component
of any Rental Payment for such Lease is deemed includible in the gross income of the owner or
owners thereof for Federal income tax purposes, which may be earlier than the date of delivery of
such determination by the Internal Revenue Service), and Lessee will pay such additional amount
as will result in the owner receiving the interest component at the Taxable Rate identified in the
related Lease.
For purposes of this Section, "Event of Taxability"means the circumstance of the interest
component of any Rental Payment paid or payable pursuant to a Lease becoming includible for
Federal income tax purposes in an owner's gross income as a consequence of any act or omission
of Lessee. An Event of Taxability shall be presumed to have occurred upon (a)the receipt by
Lessor or Lessee of an original or a copy of an Internal Revenue Service Technical Advice
Memorandum or Statutory Notice of Deficiency or other written correspondence which legally
holds that the interest component of any Rental Payment under such Lease is includable in the
gross income of the owner thereof, (b)the issuance of any public or private ruling of the Internal
Revenue Service that the interest component of any Rental Payment under such Lease is includable
in the gross income of the owner thereof, or(c)receipt by Lessor or Lessee of a written opinion of
a nationally recognized firm of attorneys experienced in matters pertaining to the tax-exempt status
of interest on obligations issued by states and their political subdivisions, selected by Lessor and
acceptable to Lessee,to the effect that the interest component of any Rental Payment under a Lease
has become includable in the gross income of the owner thereof for Federal income tax purposes.
For all purposes of this definition, an Event of Taxability shall be deemed to occur on the date as
of which the interest component of any Rental Payment is deemed includable in the gross income
of the owner thereof for Federal income tax purposes.
Section 4.07. Mandatory Prepayment. If the Acquisition Amount for a Lease is deposited
into an Escrow Account, any funds not applied to Equipment Costs and remaining in such Escrow
Account on the earlier of(a)the expiration of the applicable Acquisition Period, (b)the date on
which Lessee delivers to the Lessor the executed Disbursement Request to effect the final
disbursement to pay (or reimburse) Equipment Costs from such Escrow Account or (c) a
termination of the Escrow Account as provided in the Escrow Agreement shall be applied by
Lessor on each successive Rental Payment Date thereafter to pay all or a portion of the Rental
Payment due and owing in the succeeding twelve (12) months and any remaining amounts shall
be applied by Lessor as prepayment to the applicable unpaid Principal Portion of Rental Payments
owing under the related Lease in the inverse order of the Rental Payment Dates.
ARTICLE V
Section 5.01. Acquisition, Delivery Installation and Acceptance of Equipment. (a) With
respect to each Lease, Lessee shall order the Equipment to be acquired and financed thereunder,
cause the Equipment to be delivered and installed at the location specified in such Lease and pay
any and all delivery and installation costs and other Equipment Costs in connection therewith.
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When the Equipment listed in a Lease has been delivered and installed, Lessee shall promptly
accept such Equipment and evidence said acceptance by executing and delivering to Lessor a Final
Acceptance Certificate in the form attached hereto as Exhibit E; provided, however, that if an
Escrow Account has been established with respect to such Lease as provided in Section 3.04
hereof, Lessee shall execute and deliver Disbursement Requests to the Lessor pursuant to the
related Escrow Agreement for the purpose of effecting disbursements from the Escrow Account
to pay (or reimburse) Equipment Costs for the Equipment so acquired and installed pursuant to
such Lease. In connection with the execution and delivery by Lessee to Lessor of the final
Disbursement Request under the applicable Escrow Agreement for a Lease, Lessee shall deliver
to Lessor a"Final Acceptance Certificate" in the form attached hereto as Exhibit E.
(b) (i) With respect to a Lease entered into without an Escrow Agreement, Lessee shall
deliver to Lessor copies of invoices (and proof of payment of such invoices if Lessee seeks
reimbursement for prior expenditures) and bills of sale (if title to such Equipment has passed to
Lessee) relating to each item of Equipment accepted by Lessee. Lessee shall execute and deliver
to Lessor an Equipment Schedule pursuant to Section 3.04(a)(i) within 5 business days of receipt
from Lessor, subject to satisfaction of the conditions set forth in Section 3.04.
(ii) With respect to a Lease entered into with an Escrow Agreement, Lessor shall
prepare an Equipment Schedule. In connection with the execution and delivery of the related
Escrow Agreement, Lessee shall execute and deliver to Lessor such Equipment Schedule pursuant
to Section 3.04(a)(i) within 5 business days of receipt, subject to satisfaction of the conditions set
forth in Section 3.04. Lessee shall deliver to Lessor together with each Disbursement Request
invoices (and proof of payment of such invoices if Lessee seeks reimbursement for prior
expenditures) and bills of sale or other evidence of title transfer to Lessee relating to each item of
Equipment accepted by Lessee as evidenced by such Disbursement Request. Once approved,
Lessor shall deliver such Disbursement Request to the Escrow Agent for disbursement from the
Escrow Account in accordance with the Escrow Agreement.
Section 5.02. Quiet Enjoyment of Equipment. So long as no Event of Default exists under
the related Lease,neither Lessor nor any entity claiming by,through or under Lessor,shall interfere
with Lessee's quiet use and enjoyment of the Equipment during the Lease Term under such Lease.
Section 5.03. Location;Inspection. Once installed,no item of the Equipment will be moved
or relocated from the location (or the base location with respect to motor vehicles or aircraft)
specified for it in the related Lease without Lessor's prior written consent,which consent shall not
be unreasonably withheld. Lessor shall have the right at all reasonable times during regular
business hours to enter into and upon the property where the Equipment is located for the purpose
of inspecting the Equipment.
Section 5.04. Use and Maintenance of the Equipment. Lessee shall not install, use, operate
or maintain the Equipment(or cause the Equipment to be installed, used, operated or maintained)
improperly, carelessly, in violation of any applicable law or in a manner contrary to that
contemplated by the related Lease. Lessee shall provide all permits and licenses, if any, necessary
for the installation and operation of the Equipment. In addition, Lessee agrees to comply in all
respects with all applicable laws, regulations and rulings of any legislative, executive,
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administrative or judicial body, including, without limitation, all anti-money laundering laws and
regulations;provided that Lessee may contest in good faith the validity or application of any such
law,regulation or ruling in any reasonable manner that does not,in the opinion of Lessor,adversely
affect the interest of Lessor in and to the Equipment or its interest or rights under the related Lease.
Lessee agrees that it shall maintain, preserve and keep the Equipment in good repair and
working order, in a condition comparable to that recommended by the manufacturer. Lessor shall
have no responsibility to maintain, repair or make improvements or additions to the Equipment.
In all cases, Lessee agrees to pay any costs necessary for the manufacturer to re-certify the
Equipment as eligible for manufacturer's maintenance upon the return of the Equipment to Lessor
as provided for in Sections 3.03 and 12.02(b) of this Agreement.
Lessee shall not alter any item of Equipment or install any accessory, equipment or device
on an item of Equipment if that would impair any applicable warranty, the originally intended
function or the value of that Equipment. All repairs, parts, accessories, equipment and devices
furnished, affixed to or installed on any Equipment, excluding temporary replacements, shall
thereupon become subject to the Lease.
ARTICLE VI
Section 6.01. Title to the Equipment. During the Lease Term under each Lease, and so long
as Lessee is either not in default under Article XII hereof or an Event of Non-appropriation has
not occurred, all right, title and interest in and to each item of the Equipment under the related
Lease shall be vested in Lessee immediately upon its acceptance of each item of Equipment,
subject to the terms and conditions hereof and under the applicable Lease. Lessee shall at all times
protect and defend, at its own cost and expense, its title, in and to the Equipment from and against
all claims, liens and legal processes of its creditors, and keep all (a) Equipment, (b)moneys and
investments held from time to time in any related Escrow Account and(c) any and all proceeds of
any of the foregoing, including, without limitation, insurance proceeds, free and clear of all such
claims, liens and processes. Upon the occurrence of an Event of Default under a Lease or upon
termination of a Lease pursuant to Section 3.03 hereof,unless Lessee has elected not to return the
Equipment and to prepay all of its obligations under the related Lease pursuant to Section 10.01(a),
full and unencumbered legal title to the Equipment shall be transferred and conveyed by Lessee to
Lessor within 10 days of such occurrence or termination and upon such transfer and conveyance,
Lessee shall have no further interest therein(except to the extent provided in Section 12.02(b) and
Section 12.04). In addition, upon the occurrence of such an Event of Default or such termination,
Lessee shall execute and deliver to Lessor such documents as Lessor may request to evidence the
transfer and conveyance of such legal title to Lessor and the termination of Lessee's interest
therein, and upon request by Lessor shall deliver possession of the Equipment to Lessor in
accordance with Section 3.03 or 12.02 of this Agreement, as applicable. Upon payment of all
amounts due and owing under a Lease by Lessee in accordance with Section 10.01 hereof
(including upon payment of all Rental Payments and other amounts payable under such Lease),
Lessor's rights relating to the Equipment under such Lease shall terminate and Lessor shall execute
such documents as Lessee may request to evidence termination of Lessor's interest in the
Equipment.
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Section 6.02. Lessor's Interest in the Equipment. For each Lease under this Agreement,
Lessor shall only have the remedies described in Section 12.02 and shall not have a general
foreclosure right that entitles Lessor to a deficiency judgment or to retain Lessee's equity in the
Equipment, if any.
Section 6.03. Personal Property; No Encumbrances. Lessee agrees that the Equipment is
deemed to be and will remain personal property and will not be deemed to be affixed to or a part
of the real estate on which it may be situated, notwithstanding that the Equipment or any part
thereof may be or hereafter become in any manner physically affixed or attached to real estate or
any building thereon. Lessee shall not create, incur, assume or permit to exist any mortgage,
pledge, lien, charge or other encumbrance of any nature whatsoever on any of the real estate where
the Equipment under a Lease is or will be located or enter into any agreement to sell or assign or
enter into any sale/leaseback arrangement of such real estate without the prior written consent of
Lessor;provided,that if Lessor or its assigns is furnished with a waiver of interest in the Equipment
under such Lease acceptable to Lessor or its assigns in their respective discretion from any party
taking an interest in any such real estate prior to such interest taking effect, such consent shall not
be unreasonably withheld.
ARTICLE VII
Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges. Lessee shall
keep the Equipment under each Lease free of all levies, liens, and encumbrances except those
created by such Lease, if any. The parties to this Agreement contemplate that the Equipment under
each Lease will be used for a governmental or proprietary purpose of Lessee and that the
Equipment will therefore be exempt from all property taxes. If the lease, sale,purchase, operation,
use, possession or acquisition of any Equipment is nevertheless determined to be subject to
taxation,Lessee shall pay when due all taxes and governmental charges lawfully assessed or levied
against or with respect to such Equipment. Lessee shall pay all utility and other charges incurred
in the operation, use and maintenance of the Equipment. Lessee shall pay such taxes, assessments
or charges as the same may become due;provided that,with respect to any such taxes, assessments
or charges that may lawfully be paid in installments over a period of years, Lessee shall be
obligated to pay only such installments as accrue during the Lease Term under the affected Lease.
During the Lease Term under each Lease, Lessor will not claim ownership of the Equipment
thereunder for the purposes of any tax credits, benefits or deductions with respect to such
Equipment. In the event that the installation of any component of any item of Equipment could be
deemed to require a payment and performance bond under Section 255.05, Florida Statutes, or be
deemed subject to the mechanic's lien provision of Chapter 713,Florida Statutes, or any successor
statute to each, as they may be amended from time to time, Lessee shall require such bonds, post
such notices and do all other things provided for under such laws in order to keep the Equipment
free of and exempt from all liens.
Section 7.02. Insurance. Lessee shall, during the Lease Term under each Lease, maintain
or cause to be maintained (a) casualty insurance naming Lessor and its assigns as loss payee and
insuring the Equipment against loss or damage by fire and all other risks covered by the standard
extended coverage endorsement then in use in the State, and any other risks reasonably required
by Lessor, in an amount at least equal to the greater of(i)the then applicable Casualty Value of
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the Equipment under such Lease or (ii)the replacement cost of such Equipment; (b) liability
insurance naming Lessor and its assigns as additional insured that protects Lessor from liability
for bodily injury and property damage coverage (i) in such coverage amounts as may be required
by Lessor for the applicable Equipment or (ii) in such minimum coverage amounts as may be
agreed upon between Lessor and Lessee in connection with the execution and delivery of a Lease,
and in all events under clauses (a) and(b) issued in form and amount satisfactory to Lessor and by
an insurance company that is authorized to do business in the State and having a financial strength
rating by A.M. Best Company of "A-" or better; and (c)worker's compensation coverage as
required by the laws of the State. Notwithstanding the foregoing, Lessee may self-insure against
the risks described in clauses (a) and/or (b) through a government pooling arrangement,
self-funded loss reserves,risk retention program or other self-insurance program, in each case with
Lessor's prior consent (which Lessor may grant, withhold or deny in its sole discretion) and
provided that Lessee has delivered to Lessor such information as Lessor may request with respect
to the adequacy of such self-insurance to cover the risks proposed to be self-insured and otherwise
in form and substance acceptable to Lessor. In the event Lessee is permitted, at Lessor's sole
discretion, to self-insure as provided in this Section 7.02, Lessee shall provide to Lessor a
self-insurance letter in substantially the form attached hereto as Exhibit F. Lessee shall furnish to
Lessor evidence of such insurance or self-insurance coverage throughout the Lease Term under
each Lease. Lessee shall not cancel or modify such insurance or self-insurance coverage in any
way that would affect the interests of Lessor without first giving written notice thereof to Lessor
at least thirty (30) days in advance of such cancellation or modification.
Section 7.03. Risk ofLoss. Whether or not covered by insurance or self-insurance, Lessee
hereby assumes all risk of loss of, or damage to and liability related to injury or damage to any
persons or property arising from the Equipment under any Lease from any cause whatsoever, and
no such loss of or damage to or liability arising from the Equipment under any Lease shall relieve
Lessee of the obligation to make the Rental Payments or to perform any other obligation under
any Lease. Whether or not covered by insurance or self-insurance, Lessee hereby agrees to
reimburse Lessor(to the fullest extent permitted by applicable law,but only from legally available
funds) for any and all liabilities, obligations, losses, costs, claims, taxes or damages suffered or
incurred by Lessor, regardless of the cause thereof and all expenses incurred in connection
therewith (including, without limitation, counsel fees and expenses, and penalties connected
therewith imposed on interest received) arising out of or as a result of (a) entering into this
Agreement or any Lease or any of the transactions contemplated hereby or thereby, (b) the
ordering, acquisition, ownership, use, operation, condition, purchase, delivery, acceptance,
rejection, storage or return of any item of the Equipment under any Lease, (c) any accident in
connection with the operation, use, condition, possession, storage or return of any item of the
Equipment under any Lease resulting in damage to property or injury to or death to any person,
and/or(d)the breach of any covenant of Lessee under or in connection with this Agreement or any
Lease or any material misrepresentation provided by Lessee under or in connection with this
Agreement or any Lease. The provisions of this Section 7.03 shall continue in full force and effect
notwithstanding the full payment of all obligations under any or all Leases or the termination of
the Lease Term under any or all Leases for any reason.
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Section 7.04. Advances. In the event Lessee shall fail to keep the Equipment in good repair
and working order or shall fail to maintain any insurance required by Section 7.02 hereof, Lessor
may,but shall be under no obligation to,maintain and repair the Equipment or obtain and maintain
any such insurance coverages, as the case may be, and pay the cost thereof. All amounts so
advanced by Lessor shall constitute additional rent for the then current Original Term or Renewal
Term under the affected Lease, and Lessee covenants and agrees to pay such amounts so advanced
by Lessor with interest thereon from the due date until paid at a rate equal to the Contract Rate (or
the Taxable Rate if then in effect)plus five percent (5%) per annum or the maximum amount
permitted by law, whichever is less.
ARTICLE VIII
Section 8.01. Damage, Destruction and Condemnation. If, prior to the termination of the
Lease Term under the related Lease, (a)the Equipment or any portion thereof is destroyed, in
whole or in part, or is damaged by fire or other casualty or(b)title to, or the temporary use of, the
Equipment or any part thereof shall be taken under the exercise or threat of the power of eminent
domain by any governmental body or by any person, firm or corporation acting pursuant to
governmental authority, at the Lessee's option either, (i) Lessee and Lessor will cause the Net
Proceeds of any insurance claim or condemnation award or sale under threat of condemnation to
be applied to the prompt replacement, repair, restoration, modification or improvement of the
Equipment or such part thereof and any balance of the Net Proceeds remaining after such work
has been completed shall be paid to Lessee or (ii) Lessee shall exercise its option to prepay the
obligations under the affected Lease in accordance with Section 10.01(b) hereof.
If Lessee elects to replace any item of the Equipment(the "Replaced Equipment")pursuant
to this Section 8.01, the replacement equipment(the "Replacement Equipment") shall be new or
of a quality type, utility and condition at least as good as the Replaced Equipment and shall be of
equal or greater value than the Replaced Equipment as determined and approved by Lessor in its
sole discretion. Lessee shall represent, warrant and covenant to Lessor that each item of
Replacement Equipment is free and clear of all claims, liens and encumbrances, excepting only
those liens created by or through Lessor, and shall provide to Lessor any and all documents as
Lessor may reasonably request in connection with the replacement. Lessor and Lessee hereby
acknowledge and agree that any Replacement Equipment acquired pursuant to this paragraph shall
constitute "Equipment" for purposes of this Agreement and the related Lease. Lessee shall
complete the documentation of Replacement Equipment on or before the next Rental Payment
Date after the occurrence of a casualty event, or be required to prepay the obligations under the
related Lease with respect to the damaged Equipment for an amount that shall be determined and
approved by Lessor in its sole discretion.
For purposes of this Article VIII, the term "Net Proceeds" shall mean the amount
remaining from the gross proceeds of any insurance claim or condemnation award or sale under
threat of condemnation after deducting all expenses, including attorneys' fees, incurred in the
collection thereof.
Section 8.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in
full the cost of any repair, restoration, modification or improvement referred to in Section 8.01,
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Lessee shall, in its sole discretion, either (a) complete such replacement, repair, restoration,
modification or improvement and pay any costs thereof in excess of the amount of the Net
Proceeds, or(b)pay or cause to be paid to Lessor the amount of the then applicable Casualty Value
under the related Lease plus all other amounts then owing thereunder, and, upon such payment,
the applicable Lease Term shall terminate and Lessor's rights in the Equipment shall terminate as
provided in Section 6.01 hereof. The amount of the Net Proceeds remaining, if any, after
completing such repair, restoration, modification or improvement or after paying such Casualty
Value for such Lease plus all other amounts then owing thereunder shall be retained by Lessee. If
Lessee shall make any payments pursuant to this Section 8.02, Lessee shall not be entitled to any
reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts
payable under Article IV.
ARTICLE IX
Section 9.01. Disclaimer of Warranties. Lessor makes no warranty or representation, either
express or implied, as to the value, design, condition, merchantability or fitness for particular
purpose or fitness for use of any of the Equipment under each Lease, or any other warranty or
representation, express or implied, with respect thereto and, as to Lessor, Lessee's acquisition of
the Equipment under each Lease shall be on an "as is"basis. In no event shall Lessor be liable for
any incidental, indirect, special or consequential damage in connection with or arising out of this
Agreement, any Lease, any Equipment or the existence, furnishing, functioning or Lessee's use of
any item,product or service provided for in this Agreement or any Lease.
Section 9.02. Vendor Agreements; Warranties. Lessee covenants that it shall not in any
material respect amend, modify,rescind or alter any Vendor Agreement for any Lease without the
prior written consent of Lessor. Lessor hereby irrevocably appoints Lessee its agent and
attorney-in-fact during the Lease Term under each Lease, so long as Lessee shall not be in default
under such Lease, to assert from time to time whatever claims and rights (including without
limitation warranties)relating to the Equipment that Lessor may have against a Vendor. Lessee's
sole remedy for the breach of such warranty, indemnification or representation shall be against the
applicable Vendor of the Equipment and not against Lessor. Any such matter shall not have any
effect whatsoever on the rights and obligations of Lessor with respect to any Lease, including the
right to receive full and timely Rental Payments and other payments under each Lease. Lessee
expressly acknowledges that Lessor makes, and has made, no representations or warranties
whatsoever as to the existence or the availability of such warranties relating to any of the
Equipment under each Lease.
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ARTICLE X
Section 10.01. Prepayment; Payment in Full.
(a) Prepayment. Lessee shall have the option to prepay or satisfy all,but not less
than all, of its obligations under a Lease, at the following times and upon the following terms:
(i) Optional Prepayment. From and after the date specified (if any) in the
applicable Payment Schedule (the "Prepayment Option Commencement Date"), on the
Rental Payment Dates specified in such Payment Schedule, upon not less than thirty
(30) days prior written notice, and upon payment in full of the sum of all Rental Payments
then due under the related Lease plus the then applicable Prepayment Price, which may
include a prepayment premium on the unpaid Outstanding Balance as set forth in such
Payment Schedule plus all other amounts then owing thereunder; or
(ii) Casualty or Condemnation Prepayment. In the event of substantial damage
to or destruction or condemnation of substantially all of the Equipment listed in a Lease,
on the day specified in Lessee's notice to Lessor of its exercise of the prepayment option
(which shall be the earlier of the next Rental Payment Date or sixty (60) days after the
casualty event)upon payment in full to Lessor of(A) in the event such prepayment occurs
on a Rental Payment Date, the sum of(i) all Rental Payments then due under such Lease
plus (ii)the then applicable Casualty Value for such Lease plus (iii) all other amounts then
owing thereunder OR, (B) in the event such prepayment for such Lease occurs on a date
other than a Rental Payment Date, the sum of(i) the applicable Casualty Value shown on
the Payment Schedule for such Lease for the Rental Payment Date immediately preceding
the applicable date of such prepayment(or if the date of such prepayment occurs prior to
the first Rental Payment Date for such Lease, the earliest Casualty Value shown on the
related Payment Schedule)plus (ii) accrued interest at the Contract Rate (or the Taxable
Rate if then in effect) on the Outstanding Balance as of the Rental Payment Date
immediately preceding the applicable date of such prepayment from such Rental Payment
Date (or if the date of such prepayment occurs prior to the first Rental Payment Date, the
Commencement Date for such Lease) to the date of such prepayment plus (iii) all other
amounts then owing thereunder.
(b) Payment in Full. Upon the expiration of the Lease Term under a Lease, the
payment in full of all Rental Payments then due and all other amounts then owing under such
Lease by Lessee to Lessor.
(c) Lessor's interest in and to the related Equipment under such Lease will be
terminated and Lessee will own such Equipment free and clear of Lessor's interest in such
Equipment after either (i) payment of either (A) the applicable Prepayment Price and all other
amounts then owing under a Lease in accordance with Section 10.01(a)(i) of this Agreement or
(B) the applicable Casualty Value and all other amounts then owing under a Lease in accordance
with Section 10.01(a)(ii)of this Agreement or(ii)upon the expiration of the Lease Term of a Lease
and payment in full of all Rental Payments then due and all other amounts then owing thereunder
in accordance with Section 10.01(b) of this Agreement.
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ARTICLE XI
Section 11.01. Assignment by Lessor. (a) Lessor's right,title and interest in and to the Rental
Payments and any other amounts payable by Lessee under any and all of the Leases and the Escrow
Agreement relating to any Lease, and all proceeds therefrom (collectively, with respect to each
Lease and related Escrow Agreement, the "Related Assigned Rights"), may be assigned and
reassigned by Lessor at any time, in whole or in part, to one or more assignees or sub-assignees
without the necessity of obtaining the consent of Lessee; provided, that any such assignment,
transfer or conveyance (i) shall be made only to investors each of whom Lessor reasonably
believes is a "qualified institutional buyer"as defined in Rule 144A(a)(1)promulgated under the
Securities Act of 1933, as amended, or an "accredited investor" as defined in Section 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended, and in
either case is purchasing the Related Assigned Rights (or any interest therein) for its own account
with no present intention to resell or distribute such Related Assigned Rights (or interest therein),
subject to each investor's right at any time to dispose of the Related Assigned Rights (or any
interest therein) as it determines to be in its best interests, (ii) shall not result in more than
35 owners of the Related Assigned Rights with respect to a Lease or the creation of any interest in
the Related Assigned Rights with respect to a Lease in an aggregate principal component that is
less than $100,000 and (iii) shall not require Lessee to make Rental Payments, to send notices or
otherwise to deal with respect to matters arising under the Related Assigned Rights with respect
to a Lease with or to more than one Lease Servicer(as such term is defined below), and any trust
agreement, participation agreement or custodial agreement under which multiple ownership
interests in the Related Assigned Rights with respect to a Lease are created shall provide the
method by which the owners of such interests shall establish the rights and duties of a single entity,
trustee, owner, servicer or other fiduciary or agent acting on behalf of all of the assignees (herein
referred to as the "Lease Servicer") to act on their behalf with respect to the Related Assigned
Rights with respect to a Lease, including with respect to the exercise of rights and remedies of
Lessor on behalf of such owners upon the occurrence of an Event of Default or an Event of
Non-appropriation under the related Lease. Lessor and Lessee hereby acknowledge and agree that
the restrictions and limitations on transfer as provided in this Section 11.01 shall apply to the first
and subsequent assignees and sub-assignees of any of the Related Assigned Rights with respect to
a Lease (or any interest therein).
(b) Unless to an affiliate controlling, controlled by or under common control with Lessor,
no assignment,transfer or conveyance permitted by this Section 11.01 shall be effective as against
Lessee until Lessee shall have received a written notice of assignment that discloses the name and
address of each such assignee;provided, that if such assignment is made to a bank or trust company
as trustee or paying agent for owners of certificates of participation, participation interests, trust
certificates or partnership interests with respect to the Rental Payments payable under a Lease, it
shall thereafter be sufficient that Lessee receives notice of the name and address of the bank, trust
company or other entity that acts as the Lease Servicer for such Lease. Notices of assignment
provided pursuant to this Section 11.01(b) shall contain a confirmation of compliance with the
transfer requirements imposed by Section 11.01(a) hereof. During the Lease Term under each
Lease, Lessee shall keep, or cause to be kept, a complete and accurate record of all such
assignments in form necessary to comply with Section 149 of the Code. Lessee shall retain all such
notices as a register of all assignees and shall make all payments to the assignee or assignees or
21
68780249.v2
Lease Servicer last designated in such register. Lessee shall not have the right to and shall not
assert against any assignee any claim, counterclaim or other right Lessee may have against Lessor
or any Vendor. Assignments in part may include,without limitation, assignment of all of Lessor's
rights in and to the Equipment listed in a particular Lease and all rights in, to and under the Lease
related to such Equipment and all rights in,to and under the related Escrow Agreement. ;provided,
that in the case if any partial assignment, Lessee shall only be required to make Rental Payments
to Lessor.
(c) If Lessor notifies Lessee of its intent to assign a Lease, Lessee agrees that it shall
execute and deliver to Lessor a Notice and Acknowledgement of Assignment with respect to such
Lease, substantially in the form of Exhibit H attached hereto,within five (5)business days after its
receipt of such request.
Section 11.02. Assignment and Subleasing by Lessee. None of Lessee's right, title and
interest in, to and under this Agreement, any Lease or any portion of the Equipment, any Escrow
Agreement or the Escrow Account related thereto may be assigned, encumbered or subleased by
Lessee for any reason, and any purported assignment, encumbrance or sublease without Lessor's
prior written consent shall be null and void, except as may be specifically set forth and permitted
under an Equipment Schedule relating to such Equipment.
ARTICLE X11
Section 12.01. Events of Default Defined. Any of the following events shall constitute an
"Event ofDefault"under a Lease:
(a) Failure by Lessee to (i)pay any Rental Payment or other payment required
to be paid under any Lease within ten (10) days of the date when due as specified therein,
(ii) maintain insurance as required under such Lease (including Section 7.02 of this
Agreement, which is incorporated therein), or (iii) observe and perform any covenant,
condition or agreement on its part to be observed or performed under Section 6.01 or 6.02
hereof for any Lease;
(b) Failure by Lessee to observe and perform any covenant, condition or
agreement contained in this Agreement or any Lease on its part to be observed or
performed, other than as referred to in subsection (a)above,for a period of thirty (30) days
after written notice specifying such failure and requesting that it be remedied is given to
Lessee by Lessor,unless Lessor shall agree in writing to an extension of such time prior to
its expiration;provided that, if the failure stated in the notice cannot be corrected within
the applicable period, Lessor will not unreasonably withhold its consent to an extension of
such time if corrective action is instituted by Lessee within the applicable period and
diligently pursued until the default is corrected;
(c) Any statement,representation or warranty made by Lessee in or pursuant to
this Agreement or any Lease or its execution, delivery or performance shall prove to have
been false, incorrect, misleading or breached in any material respect on the date when
made;
22
68780249.v2
(d) Any default occurs under any other agreement for borrowing money, lease
financing of property or otherwise receiving credit under which Lessee is an obligor, if
such default(i) arises under any other agreement for borrowing money, lease financing of
property or provision of credit provided by Lessor or any affiliate of Lessor (including,
without limitation, the occurrence of any Event of Default under any other Lease), or
(ii) arises under any obligation under which there is outstanding, owing or committed an
aggregated amount in excess of$1,000,000.00;
(e) Lessee shall(i) apply for or consent to the appointment of a receiver,trustee,
custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee,
(ii)be unable, fail or admit in writing its inability generally to pay its debts as they become
due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for relief
entered against it under applicable Federal bankruptcy law, or (v) file a voluntary petition
in bankruptcy or a petition or an answer seeking reorganization or an arrangement with
creditors or taking advantage of any insolvency law or any answer admitting the material
allegations of a petition filed against Lessee in any bankruptcy, reorganization or
insolvency proceeding; or
(f) An order, judgment or decree shall be entered by any court of competent
jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator
for Lessee or of all or a substantial part of the assets of Lessee, in each case without its
application, approval or consent, and such order, judgment or decree shall continue
unstayed and in effect for any period of thirty (30) consecutive days.
Section 12.02. Remedies on Default. Whenever any Event of Default exists under any Lease,
Lessor shall have the right, at its sole option without any further demand or notice, to take one or
any combination of the following remedial steps with respect to any or all Leases with an Event
of Default under this Agreement, including those with an Event of Default pursuant to Section
12.01(d) (each a"Defaulted Lease"):
(a) By written notice to Lessee, Lessor may declare all Rental Payments
payable by Lessee pursuant to one or more Defaulted Leases and other amounts payable
by Lessee under each such Defaulted Lease to the end of the then current Original Term or
current Renewal Term to be immediately due and payable;
(b) With or without terminating the Lease Term under any one or more
Defaulted Leases, Lessor may request that Lessee at Lessee's expense promptly return any
or all of such Equipment to the possession of Lessor at such place within the United States
as Lessor shall specify. In such event, Lessor shall use its best efforts to sell or lease such
Equipment or, for the account of Lessee, sublease such Equipment. If Lessee returns the
Equipment and Lessor sells, leases or otherwise disposes of any or all of the Equipment,
Lessor shall apply the proceeds of such sale, lease or other disposition as described in
Section 12.04. Lessee shall not be liable for any deficiency after sale, lease or other
disposition of the Equipment. If Lessee elects not to return the Equipment, Lessor is
entitled to payment of unpaid Rental Payments through the date of Lessor's request to
return the Equipment plus the then applicable Prepayment Price, as set forth in the
23
68780249.v2
applicable Schedule for such Equipment. The exercise of any such remedies respecting any
such Event of Default shall not relieve Lessee of any other liabilities under any other Lease
or the Equipment listed therein;
(c) Lessor may terminate the Escrow Agreement relating to any one or more of
such Defaulted Leases and apply any proceeds in each such applicable Escrow Account
thereunder to the Rental Payments scheduled to be paid under any one or more of such
Defaulted Leases as Lessor shall determine; and/or
(d) Subject to the next sentence, Lessor may take whatever action at law or in
equity as may appear necessary or desirable to enforce its rights under each such Defaulted
Lease or related Escrow Agreement or to any or all of the Equipment or the Escrow
Account. The parties to this Agreement acknowledge that: (i) this Agreement is not
intended to create a mortgage of or a security interest in the Equipment as proscribed by
Nohrr v. Brevard County Educational Facilities Authority, 247 So. 2d 304 (Fla. 1971), and
(ii) Lessor may not exercise any foreclosure-type remedies if an Event of Default occurs,
State v. Brevard County, 539 So. 2d 461 (Fla. 1989),notwithstanding any provisions to the
contrary in this Agreement.
Section 12.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to
Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder and/or under any Lease now or hereafter existing
at law or in equity. No delay or omission to exercise any right or power accruing upon any default
shall impair any such right or power or shall be construed to be a waiver thereof,but any such right
or power may be exercised from time to time and as often as may be deemed expedient. In order
to entitle Lessor to exercise any remedy reserved to it in this Article XII it shall not be necessary
to give any notice other than such notice as may be required in this Article XII.
Section 12.04. Application of Moneys. Any net proceeds from the exercise of any remedy
under this Agreement, including the application specified in Section 12.02(b) (after deducting all
expenses of Lessor in exercising such remedies including without limitation all expenses of taking
possession, storing, reconditioning and selling or leasing Equipment and all brokerage,
auctioneer's or attorney's fees), shall be applied as follows:
(a) If such remedy is exercised solely with respect to a single Defaulted Lease,
Equipment listed in such Defaulted Lease or rights thereunder, then to amounts due
pursuant to such Defaulted Lease and to other amounts related to such Defaulted Lease or
such Equipment.
(b) If such remedy is exercised with respect to more than one Defaulted Lease,
Equipment listed in more than one Defaulted Lease or rights under more than one
Defaulted Lease,then to amounts due pursuant to one or more of such Defaulted Leases as
Lessor shall determine and distribute on a pro rata basis or on such other basis as Lessor
shall determine.
24
68780249.v2
ARTICLE XIII
Section 13.01. Notices. All notices, certificates or other communications under this
Agreement or any Lease shall be sufficiently given and shall be deemed given when delivered or
mailed by registered mail,postage prepaid, or delivered by overnight courier, or sent by facsimile
transmission(with electronic confirmation)to the parties hereto at the addresses immediately after
the signatures to this Agreement(or at such other address as either parry hereto shall designate in
writing to the other for notices to such parry) and to any assignee at its address as it appears on the
registration books maintained by Lessee.
Section 13.02. Binding Effect. This Agreement and each Lease shall inure to the benefit of
and shall be binding upon Lessor and Lessee and their respective successors and assigns.
Section 13.03. Severability. In the event any provision of this Agreement or any Lease shall
be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof or thereof.
Section 13.04. Amendments, Changes and Modifications. This Agreement and each Lease
may only be amended by Lessor and Lessee in writing.
Section 13.05. Execution in Counterparts. This Agreement and each Lease 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 instrument;provided that only Counterpart No. 1 of each
Lease (including the terms and provisions of this Agreement incorporated therein by reference)
shall constitute chattel paper for purposes of the applicable Uniform Commercial Code.
Section 13.06. Applicable Law; Venue; Waiver of Jury Trial. This Agreement and each
Lease shall be governed by and construed in accordance with the laws of the State. The parties
hereto consent and submit to the jurisdiction of the State and venue in any state or Federal court
of such State for the purposes of any suit, action or other proceeding arising in connection with
this Agreement or any Lease, and each parry expressly waives any objections that it may have to
the venue of such courts. The parties hereto expressly waive any right to trial by jury in any action
brought on or with respect to this Agreement or any Lease.
Section 13.07. Captions. The captions or headings in this Agreement and in each Lease are
for convenience only and in no way define, limit or describe the scope or intent of any provisions
or sections of this Agreement or any Lease.
Section 13.08. No Advisory or Fiduciary Relationship. In connection with all aspects of each
transaction contemplated by this Agreement and each Lease thereunder (including in connection
with any amendment, waiver or other modification hereof or of any other related document), the
Lessee acknowledges and agrees that: (a) (i) the transactions regarding this Agreement and each
Lease thereunder provided by the Lessor and any affiliate thereof are arm's-length commercial
transactions between the Lessee, on the one hand, and the Lessor and its affiliates, on the other
hand, (ii)the Lessee has consulted its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate, and(iii)the Lessee is capable of evaluating, and understands and
25
68780249.v2
accepts, the terms, risks and conditions of the transactions contemplated by this Agreement and
each Lease thereunder and by the other related documents; (b) (i)the Lessor and its affiliates each
is and has been acting solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary, for
the Lessee,or any other person and(ii)neither the Lessor nor any of its affiliates has any obligation
to the Lessee with respect to the transactions contemplated by this Agreement and each Lease
thereunder except those obligations expressly set forth herein and in the other related documents;
and (c)the Lessor and its affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Lessee, and neither the Lessor nor any of its affiliates has any
obligation to disclose any of such interests to the Lessee. To the fullest extent permitted by law,
the Lessee, hereby waives and releases any claims that it may have against the Lessor or any of its
affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection
with any aspect of any transactions contemplated by this Agreement and each Lease thereunder.
Section 13.09. Entire Agreement. The parties agree that this Agreement and each Lease
hereunder constitutes the final and entire agreement between the parties superseding all conflicting
terms or provisions of any prior proposals, term sheets, solicitation documents, requests for
proposals, award notices, approval letters or any other agreements or understandings between the
parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS]
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68780249.v2
IN WITNESS WHEREOF, Lessor and Lessee have caused this Master Equipment
Lease/Purchase Agreement to be executed in their names by their duly authorized representatives
as of the date first above written.
LEssm LESSEE:
Bane of America Public Capital Corp Monroe County, Florida
11333 McCormick Road 1100 Simonton Street, Suite 2-213
Hunt Valley 11 Key West, Florida 33040
M/C M135-032-07-05 Attention: County Administrator
Hunt Valley, MD 21031 Fax No.:(305) 292-4515
Attention: Contract Administration
Fax No.: (443) 541-3057
By: By:
Name: Adbustine Rpichnbar-he Name: Craig Cates
Title:6 ant Title: Mayor of the Board of County
Commissioners of Monroe County
[Signature Page I Master,Equipment Lease/Purchase Agreement]
IN WITNESS WHEREOF, Lessor and Lessee have caused this Master Equipment
Lease/Purchase Agreement to be executed in their names by their duly authorized representatives
as of the date first above written.
LESSOR: LESSEE:
Banc of America Public Capital Corp Monroe County, Florida
11333 McCormick Road 1100 Simonton Street, Suite 2-213
Hunt Valley II Key West, Florida 33040
M/C MD5-032-07-05 Attention: County Administrator
Hunt Valley, MD 21031 Fax No.:(305)292-4515
Attention:Contract Administration
Fax No.: (443) 541-3057
By: By: __
Name: Name:4c �
Cates
Title: Title: Mayor of the Board of County
Commissioners of Monroe County
P.4 OE COUNTY T1'"0rift. �
P VEOI>b
.k
Dats_ �� 7 71-7Z3
[Signature Page Master Equipment Lease/Purchase Agreement]
LIST OF EXHIBITS
Exhibit A-1 Form of Equipment Schedule—General Equipment
Exhibit A-2 Form of Equipment Schedule—Energy Services Equipment
Exhibit B Form of Payment Schedule
Exhibit C-lA Form of Authorizing Resolution (Agreement)
Exhibit C-1B Form of Authorizing Resolution (Lease)
Exhibit C-2A Form of Incumbency and Authorization Certificate (Agreement)
Exhibit C-213 Form of Incumbency and Authorization Certificate (Lease)
Exhibit D Form of Opinion of Counsel to Lessee
Exhibit E Form of Final Acceptance Certificate
Exhibit F Form of Self-Insurance Certificate
Exhibit G Reserved
Exhibit H Form of Notice and Acknowledgement of Assignment
Exhibit I Form of Escrow and Account Control Agreement
68780249.v2
EXHIBIT A-1
FORM OF EQUIPMENT SCHEDULE No. -GENERAL EQUIPMENT
Re: Master Equipment Lease/Purchase Agreement, dated as of May , 2023,
between Banc of America Public Capital Corp, a Kansas corporation, as
Lessor, and Monroe County, Florida, as Lessee
1. Defined Terms. All terms used herein have the meanings ascribed to them in the
above-referenced Master Equipment Lease/Purchase Agreement(the "Agreement").
2. Equipment. For purposes of the Lease created hereby, the following items of
Equipment are hereby included under this Equipment Schedule together with all attachments,
additions, accessions, parts, repairs, improvements, replacements and substitutions thereto as
provided in the Agreement.
QUANTITY DESCRIPTION SERIAL No. MODEL No. LOCATION
3. Payment Schedule.
(a) Rental Payments; Commencement Date. The Rental Payments shall be in such
amounts and payable on such Rental Payment Dates as set forth in the Payment Schedule attached
to this Equipment Schedule and incorporated herein by this reference, subject to adjustment upon
the occurrence of an Event of Taxability as provided in Section 4.06 of the Agreement. Lessee's
obligation to pay Rental Payments under the Lease created hereby shall commence on the earlier
of(i)the date on which the Equipment listed in this Equipment Schedule is accepted by Lessee in
the manner described in Section 5.01 of the Agreement, as evidenced by the Final Acceptance
Certificate executed by Lessee and substantially in the form of Exhibit E attached to the
Agreement, or (ii)the date on which the Acquisition Amount is deposited in an Escrow Account
for the purpose of acquiring and installing the Equipment listed in this Equipment Schedule
pursuant to Section 3.04(c) of the Agreement(the earlier of such two dates being herein referred
to as the "Commencement Date").
(b) Prepayment Price Schedule. The Prepayment Price on each Rental Payment Date
shall be the amount set forth for such Rental Payment Date in the "Prepayment Price" column of
the Payment Schedule attached to this Equipment Schedule plus all Rental Payments then due
(including the Rental Payment due on such Rental Payment Date) plus all other amounts then
owing under this Equipment Schedule.
2
68780249.v2
4. Representations, Warranties and Covenants. Lessee hereby represents, warrants and
covenants that its representations, warranties and covenants set forth in the Agreement
(particularly Section 2.01 thereof) are true and correct as though made on the Commencement
Date. Lessee further represents and warrants that (a)no Material Adverse Change has occurred
since the dated date of the Agreement; (b)no Event of Default has occurred and is continuing
under any Lease currently in effect; (c)no Event of Non-appropriation under any Lease currently
in effect has occurred or is threatened; (d)no Lease has been terminated as the result of the
occurrence of an Event of Default or an Event of Non-appropriation; (e)the governing body of
Lessee has authorized the execution and delivery of the Agreement and this Equipment Schedule;
(f)the Equipment listed in this Equipment Schedule is essential to the functions of Lessee or to
the services Lessee provides its citizens; (g) Lessee has an immediate need for, and expects to
make immediate use of, substantially all such Equipment, which will be used by Lessee only for
the purpose of performing one or more of Lessee's governmental or proprietary functions
consistent with the permissible scope of its authority; and (h) Lessee currently expects and
anticipates adequate funds to be available for all future payments or rent due after the current
budgetary period.
5. The Lease. The terms and provisions of the Agreement(other than to the extent that
they relate solely to other Equipment Schedules or Equipment listed on other Equipment
Schedules) are hereby incorporated into this Equipment Schedule by reference and made a part
hereof.
[OPTION: IF ESCROW AGREEMENT IS USED:
6. Acquisition Amount. The Acquisition Amount that Lessor shall pay to the Escrow
Agent for deposit into the Escrow Account in connection with this Equipment Schedule is
$ . It is expected that by [[six(6)] [twelve(12)] [eighteen (18)] [other period of time
approved by Lessor]] months from the date of this Equipment Schedule No. , Lessee will
have taken possession of all items of Equipment shown above and that the Lessee's final
Disbursement Request pursuant to the Escrow Agreement will be signed by Lessee, approved by
Lessor and delivered to the Escrow Agent on or before [[six (6)] [twelve (12)] [eighteen (18)]
[other period of time approved by Lessor]] months from the date of this Equipment Schedule.
OR IF VENDOR PAID DIRECTLY USE:
6. Acquisition Amount. The Acquisition Amount for the Equipment listed in this
Equipment Schedule to be paid to the Vendor (or reimbursed to Lessee) is $
.]
[OPTION: IF ESCROW AGREEMENT IS USED:
7. Acquisition Period. The Acquisition Period applicable to this Equipment Schedule
shall end at the conclusion of the month following the date hereof.]
3
68780249.v2
[OPTION: IF ESCROW AGREEMENT IS USED AND A SURETY BOND IS REQUIRED:
[8] Surety Bonds; Lessee to Pursue Remedies Against Contractors and Sub-
Contractors and Their Sureties. Lessee shall secure from each Vendor directly employed by
Lessee in connection with the acquisition, construction, installation, improvement or equipping of
the Equipment listed in this Equipment Schedule, a payment and performance bond ("Surety
Bond") executed by a surety company authorized to do business in the State, having a financial
strength rating by A.M. Best Company of"A-" or better, and otherwise satisfactory to Lessor and
naming Lessor as a co-obligee in a sum equal to the entire amount to become payable under each
Vendor Agreement. Each bond shall be conditioned on the completion of the work in accordance
with the plans and specifications for the Equipment listed in this Equipment Schedule and upon
payment of all claims of subcontractors and suppliers. Lessee shall cause the surety company to
add Lessor as a co-obligee on each Surety Bond, and shall deliver a certified copy of each Surety
Bond to Lessor promptly upon receipt thereof by Lessee. Any proceeds from a Surety Bond shall
be applied in accordance with such Surety Bond to the payment and performance of the Vendor's
obligations in accordance with the related Vendor Agreement and, if for whatever reason such
proceeds are not so applied, first to amounts due Lessor under this Equipment Schedule, and any
remaining amounts shall be payable to Lessee.
In the event of a material default of any Vendor under any Vendor Agreement in connection with
the acquisition, construction, maintenance and/or servicing of the Equipment listed in this
Equipment Schedule or in the event of a material breach of warranty with respect to any material
workmanship or performance guaranty with respect to such Equipment, Lessee will promptly
proceed to exhaust its remedies against the Vendor in default. Lessee shall advise Lessor of the
steps it intends to take in connection with any such default. Any amounts received by Lessee in
respect of damages, refunds, adjustments or otherwise in connection with the foregoing shall be
paid to Lessor and applied against Lessee's obligations under this Equipment Schedule.
As a prerequisite to the performance by Lessor of any of its obligations under this Equipment
Schedule, Lessee shall deliver to Lessor, in form and substance satisfactory to Lessor, a certified
copy of each Surety Bond satisfying the conditions set forth in this Section , or, at Lessor's
sole discretion, such Surety Bonds may be provided after the Commencement Date of this
Equipment Schedule,provided however, that no "Disbursement Request"pursuant to the Escrow
Agreement for this Equipment Schedule shall be authorized by Lessor until such Surety Bonds
satisfying the conditions set forth in this Section have been delivered to Lessor.
[7][8][9].Lease Term. The Lease Term shall consist of the Original Term and consecutive
Renewal Terms, with the final Renewal Term ending on subject to earlier
termination pursuant to the Agreement.
[OPTION: IF MOTOR VEHICLES OR AIRCRAFT ARE BEING FINANCED:
4
68780249.v2
[8][9][10]. Registration. Any Equipment that is a motor vehicle is to be registered and titled as
follows:
(a) Registered Owner: [ ]
(b) Lienholder: Banc of America Public Capital Corp
Bank of America Plaza
600 Peachtree Street NE, I Ph Floor
Atlanta, GA 30308-2265
Lessee shall be responsible for the correct titling of all Equipment leased hereunder. Lessee will
cause the original Certificates of Title to be delivered to Lessor for retention in Lessor's files
throughout the Lease Term of the Lease created hereby.
Dated:
LESSOR: LESSEE:
Banc of America Public Capital Corp Monroe County, Florida
11333 McCormick Road 1100 Simonton Street, Suite 2-213
Hunt Valley II Key West, Florida 33040
M/C MD5-032-07-05 Attention: County Administrator
Hunt Valley, MD 21031
Attention: Contract Administration
Fax No.: (443) 541-3057
By: By:
Name: Name:
Title: Title:
Counterpart No. of manually executed and serially numbered counterparts. To the
extent that the Lease created hereby constitutes chattel paper(as defined in the applicable Uniform
Commercial Code), no security or ownership interest herein may be created through the transfer
or possession of any Counterpart other than Counterpart No. 1.
5
68780249.v2
EXHIBIT A-2
FORM OF EQUIPMENT SCHEDULE No. -ENERGY SERVICES EQUIPMENT
Re: Master Equipment Lease/Purchase Agreement, dated as of May , 2023,
between Banc of America Public Capital Corp, a Kansas corporation, as
Lessor, and Monroe County, Florida, as Lessee
1. Defined Terms. All terms used herein have the meanings ascribed to them in the
above-referenced Master Equipment Lease/Purchase Agreement(the "Agreement").
2. Equipment.
(a) Location of Equipment: For purposes of the Lease created hereby, the location
of Equipment is set forth below:
(b) Equipment Description (Scope of Work): For purposes of the Lease created
hereby, the description of the Equipment and the scope of work is set forth
below:
3. Payment Schedule.
(a) Rental Payments; Commencement Date. The Rental Payments shall be in such
amounts and payable on such Rental Payment Dates as set forth in the Payment Schedule attached
to this Equipment Schedule and incorporated herein by this reference, subject to adjustment upon
the occurrence of an Event of Taxability as provided in Section 4.06 of the Agreement. Lessee's
obligation to pay Rental Payments under the Lease created hereby shall commence on the earlier
of(i)the date on which the Equipment listed in this Equipment Schedule is accepted by Lessee in
the manner described in Section 5.01 of the Agreement, as evidenced by the Final Acceptance
Certificate executed by Lessee and substantially in the form of Exhibit E attached to the
Agreement, or (ii)the date on which the Acquisition Amount is deposited in an Escrow Account
for the purpose of acquiring and installing the Equipment listed in this Equipment Schedule
pursuant to Section 3.04(c) of the Agreement(the earlier of such two dates being herein referred
to as the "Commencement Date").
(b) Prepayment Price Schedule. The Prepayment Price on each Rental Payment Date
shall be the amount set forth for such Rental Payment Date in the "Prepayment Price" column of
the Payment Schedule attached to this Equipment Schedule plus all Rental Payments then due
(including the Rental Payment due on such Rental Payment Date)plus all other amounts then
owing under this Equipment Schedule.
A-1
68780249.v2
4. Representations, Warranties and Covenants. Lessee hereby represents, warrants and
covenants that its representations, warranties and covenants set forth in the Agreement
(particularly Section 2.01 thereof) are true and correct as though made on the Commencement
Date. Lessee further represents and warrants that (a)no Material Adverse Change has occurred
since the dated date of the Agreement; (b)no Event of Default has occurred and is continuing
under any Lease currently in effect; (c)no Event of Non-appropriation under any Lease currently
in effect has occurred or is threatened; (d)no Lease has been terminated as the result of the
occurrence of an Event of Default or an Event of Non-appropriation; (e)the governing body of
Lessee has authorized the execution and delivery of the Agreement and this Equipment Schedule;
(f)the Equipment listed in this Equipment Schedule is essential to the functions of Lessee or to
the services Lessee provides its citizens; (g) Lessee has an immediate need for, and expects to
make immediate use of, substantially all such Equipment, which will be used by Lessee only for
the purpose of performing one or more of Lessee's governmental or proprietary functions
consistent with the permissible scope of its authority; and (h) Lessee currently expects and
anticipates adequate funds to be available for all future payments or rent due after the current
budgetary period.
5. The Lease. The terms and provisions of the Agreement(other than to the extent that
they relate solely to other Equipment Schedules or Equipment listed on other Equipment
Schedules) are hereby incorporated into this Equipment Schedule by reference and made a part
hereof.
6. Acquisition Amount. The Acquisition Amount that Lessor shall pay to the Escrow
Agent for deposit into the Escrow Account in connection with this Equipment Schedule is
$ . It is expected that by [six (6)] [twelve (12)] [eighteen (18)] months from the date
of this Equipment Schedule No. , Lessee will have taken possession of all items of
Equipment shown above and that the Lessee's final Disbursement Request pursuant to the Escrow
Agreement will be signed by Lessee, approved by Lessor and delivered to the Escrow Agent on or
before [six (6)] [twelve (12)] [eighteen (18)] months from the date of this Equipment Schedule.
7. Acquisition Period. The Acquisition Period applicable to this Equipment Schedule
shall end at the conclusion of the month following the date hereof.
8. Additional Representation Regarding the Use and Maintenance of the Equipment;
Additional Representation Regarding Damage, Destruction and Condemnation.
(a) Lessee agrees that it shall (a)proceed promptly, at its expense, to protect its rights and
exercise its remedies under any warranty then in effect with respect to the Equipment under this
Equipment Schedule; and (b) replace or rebuild any component of the Equipment under this
Equipment Schedule that becomes permanently unfit for normal use or inoperable during the Lease
Term of this Equipment Schedule (herein, the "Inoperable Component") in order to keep the
Equipment as a whole in good repair and working order during the Lease Term of this Equipment
Schedule. Lessee shall promptly notify Lessor in writing when any component of the Equipment
under this Equipment Schedule is reasonably expected within forty-five (45) days to become an
Inoperable Component. Lessee shall promptly replace or rebuild the Inoperable Component under
this Equipment Schedule with a similar component of comparable or improved make and model
A-2
68780249.v2
that has at least the equivalent value and utility of the applicable Inoperable Component, a
remaining useful life of no less than the remaining Lease Term under this Equipment Schedule
and such replacement or rebuilt component shall be in good operating condition.
(b) If Lessee elects to replace any item of the Equipment with Replacement Equipment
pursuant to Section 8.01 of the Agreement,in addition to the other requirements set forth in Section
8.01, the Replacement Equipment shall also provide at least the same level of energy and/or
operational savings expected in the aggregate from the Replaced Equipment prior to such casualty,
destruction or condemnation.
9. Liability Insurance. Lessee shall, during the Lease Term under this Equipment
Schedule, maintain or cause to be maintained liability insurance naming Lessor and its assigns as
additional insured that protects Lessor from liability with limits of at least $5,000,000 per
occurrence for bodily injury and property damage coverage(such liability insurance coverage may
be in a combination of primary general liability and/or excess liability umbrella coverage).
10. Surety Bonds; Lessee to Pursue Remedies Against Contractors and Sub-
Contractors and Their Sureties. Lessee shall secure from each Vendor directly employed by
Lessee in connection with the acquisition, construction, installation, improvement or equipping of
the Equipment listed in this Equipment Schedule, a payment and performance bond ("Surety
Bond") executed by a surety company authorized to do business in the State, having a financial
strength rating by A.M. Best Company of"A-" or better, and otherwise satisfactory to Lessor and
naming Lessor as a co-obligee in a sum equal to the entire amount to become payable under each
Vendor Agreement. Each bond shall be conditioned on the completion of the work in accordance
with the plans and specifications for the Equipment listed in this Equipment Schedule and upon
payment of all claims of subcontractors and suppliers. Lessee shall cause the surety company to
add Lessor as a co-obligee on each Surety Bond, and shall deliver a certified copy of each Surety
Bond to Lessor promptly upon receipt thereof by Lessee. Any proceeds from a Surety Bond shall
be applied in accordance with such Surety Bond to the payment and performance of the Vendor's
obligations in accordance with the related Vendor Agreement and, if for whatever reason such
proceeds are not so applied, first to amounts due Lessor under this Equipment Schedule, and any
remaining amounts shall be payable to Lessee.
In the event of a material default of any Vendor under any Vendor Agreement in connection with
the acquisition, construction, maintenance and/or servicing of the Equipment listed in this
Equipment Schedule or in the event of a material breach of warranty with respect to any material
workmanship or performance guaranty with respect to such Equipment, Lessee will promptly
proceed to exhaust its remedies against the Vendor in default. Lessee shall advise Lessor of the
steps it intends to take in connection with any such default. Any amounts received by Lessee in
respect of damages, refunds, adjustments or otherwise in connection with the foregoing shall be
paid to Lessor and applied against Lessee's obligations under this Equipment Schedule.
As a prerequisite to the performance by Lessor of any of its obligations under this Equipment
Schedule, Lessee shall deliver to Lessor, in form and substance satisfactory to Lessor, a certified
copy of each Surety Bond satisfying the conditions set forth in this Section , or, at Lessor's
A-3
68780249.v2
sole discretion, such Surety Bonds may be provided after the Commencement Date of this
Equipment Schedule,provided however, that no "Disbursement Request"pursuant to the Escrow
Agreement for this Equipment Schedule shall be authorized by Lessor until such Surety Bonds
satisfying the conditions set forth in this Section have been delivered to Lessor.
11. Lease Term. The Lease Term shall consist of the Original Term and consecutive
Renewal Terms, with the final Renewal Term ending on subject to earlier
termination pursuant to the Agreement.
Dated:
LESSOR: LESSEE:
Banc of America Public Capital Corp Monroe County, Florida
11333 McCormick Road 1100 Simonton Street, Suite 2-213
Hunt Valley II Key West, Florida 33040
M/C MD5-032-07-05 Attention:
Hunt Valley, MD 21031
Attention: Contract Administration
Fax No.: (443) 541-3057
By: By:
Name: Name:
Title: Title:
Counterpart No. of manually executed and serially numbered counterparts.
To the extent that the Lease created hereby constitutes chattel paper (as defined in the applicable
Uniform Commercial Code), no security or ownership interest herein may be created through the
transfer or possession of any Counterpart other than Counterpart No. 1.
A-4
68780249.v2
EXHIBIT B
FORM OF PAYMENT SCHEDULE
PREPAYMENT CASUALTY
PRICE VALUE
[including [including
RENTAL RENTAL prepayment casualty
PAYMENT PAYMENT INTEREST PRINCIPAL OUTSTANDING premium;if premium;if
DATE AMOUNT PORTION PORTION BALANCE applicable] applicable]
Contract Rate; Taxable Rate. The Contract Rate for this Equipment Schedule is
% per annum. The Taxable Rate for this Equipment Schedule is % per
annum.
Prepayment Option Commencement Date. For purposes of Section 10.01 of the
Agreement, the Prepayment Option Commencement Date for this Equipment Schedule is
LESSOR: LESSEE:
Banc of America Public Capital Corp Monroe County, Florida
By: By:
Name: Name:
Title: Title:
68780249.v2
EXHIBIT C-lA
FORM OF AUTHORIZING RESOLUTION(AGREEMENT)
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, AUTHORIZING THE EXECUTION AND
DELIVERY OF A MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT
AND SEPARATE EQUIPMENT SCHEDULES THERETO FOR THE
ACQUISITION, FINANCING AND LEASING OF CERTAIN EQUIPMENT FOR
THE PUBLIC BENEFIT WITHIN THE TERMS HEREIN PROVIDED;
AUTHORIZING THE EXECUTION AND DELIVERY OF OTHER DOCUMENTS
REQUIRED IN CONNECTION THEREWITH; AND AUTHORIZING THE
TAKING OF ALL OTHER ACTIONS NECESSARY TO THE CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED BY THIS RESOLUTION.
WHEREAS, Monroe County, Florida (the "Lessee"), a political subdivision of the State of
Florida, is authorized by the laws of the State of Florida to acquire, finance and lease personal
property (tangible and intangible)for the benefit of the Lessee and its inhabitants and to enter into
contracts with respect thereto; and
WHEREAS, the Board of County Commissioners of the Lessee (the "Board") has
determined that a need exists for the acquisition, financing and leasing of certain equipment
consisting of , which constitutes personal property necessary for the
Lessee to perform essential governmental functions (collectively, the "Equipment") on the terms
herein provided; and
WHEREAS, in order to acquire such Equipment, the Lessee proposes to enter into that
certain Master Equipment Lease/Purchase Agreement (the "Agreement") with Banc of America
Public Capital Corp (or one of its affiliates), as lessor(the "Lessor"), substantially in the proposed
form presented to the Board at this meeting, and separate Equipment Schedules thereto
substantially in the form attached to the Agreement; and
WHEREAS, the Board deems it for the benefit of the Lessee and for the efficient and
effective administration thereof to enter into the Agreement and separate Equipment Schedules
thereunder and the other documentation relating thereto from time to time as provided in the
Agreement for the acquisition, financing and leasing of the Equipment to be therein described on
the terms and conditions therein and herein provided;
Now,THEREFORE,BE IT AND IT IS HEREBY RESOLVED by the governing body of the Lessee
as follows:
Section 1. Findings and Determinations. It is hereby found and determined that the
terms of the Agreement (including the form of Equipment Schedule and the form of Payment
Schedule,both attached thereto), in the form presented to the Board at this meeting, are in the best
interests of the Lessee for the acquisition financing and leasing of the Equipment.
68780249.v2
Section 2. Approval of Documents. The form, terms and provisions of the Agreement
(including the form of Equipment Schedule and the form of Payment Schedule, both attached
thereto) are hereby approved in substantially the forms presented at this meeting, with such
insertions, omissions and changes as shall be approved by [insert title of
officials] of the Lessee or other members of the governing body of the Lessee (the "Authorized
Officials") executing the same, the execution of such documents being conclusive evidence of
such approval; and the of the Lessee is hereby authorized and
directed to execute, and the of the Lessee is hereby authorized and directed to
attest, the Agreement and any related Exhibits attached thereto and to deliver the Agreement
(including such Exhibits) to the respective parties thereto, and the
of the Lessee is hereby authorized to affix the seal of the Lessee to such documents. The
Authorized Officials are each hereby authorized and directed to sign and deliver on behalf of the
Lessee the Agreement, each Equipment Schedule thereto under which a separate Lease(as defined
in the Agreement) is created, each Payment Schedule attached thereto, any related Escrow
Agreement and any related exhibits attached thereto if and when required;provided, however, that,
without further authorization from the governing body of the Lessee, (a)the aggregate principal
component of Rental Payments under all Leases entered into pursuant to the Agreement shall not
exceed $ ; (b)the maximum term under any Lease entered into pursuant to the
Agreement shall not exceed [ ] years; and (c)the maximum interest rate used
to determine the interest component of Rental Payments under each Lease shall not exceed the
lesser of the maximum rate permitted by law or [ percent ( %)] per annum. The
Authorized Officials may sign and deliver Leases to the Lessor on behalf of the Lessee pursuant
to the Agreement on such terms and conditions as they shall determine are in the best interests of
the Lessee up to the maximum aggregate principal component, maximum term and maximum
interest rate provided above. The foregoing authorization shall remain in effect for a period of
[two] years from the date hereof during which the Authorized Officials are authorized to sign and
deliver Leases pursuant to the Agreement on the terms and conditions herein provided and to be
provided in each such Lease.
Section 3. Other Actions Authorized. The officers and employees of the Lessee shall
take all action necessary or reasonably required by the parties to the Agreement to carry out, give
effect to and consummate the transactions contemplated thereby (including the execution and
delivery of Final Acceptance Certificates, Escrow Agreements, Disbursement Requests and any
tax certificate and agreement, as contemplated in the Agreement) and to take all action necessary
in conformity therewith, including, without limitation, the execution and delivery of any closing
and other documents required to be delivered in connection with the Agreement and each Lease.
Section 4. No General Liability. Nothing contained in this Resolution, the Agreement,
any Lease, any Escrow Agreement nor any other instrument shall be construed with respect to the
Lessee as incurring a pecuniary liability or charge upon the general credit of the Lessee or against
its taxing power, nor shall the breach of any agreement contained in this Resolution, the
Agreement, any Lease, any Escrow Agreement or any other instrument or document executed in
connection therewith impose any pecuniary liability upon the Lessee or any charge upon its general
credit or against its taxing power, except to the extent that the Rental Payments payable under each
Lease entered into pursuant to the Agreement are limited obligations of the Lessee, subject to
annual appropriation, as provided in the Agreement.
68780249.v2
Section S. Appointment of Authorized Lessee Representatives. The
and of the Lessee are each hereby
designated to act as authorized representatives of the Lessee for purposes of each Lease and related
Escrow Agreement until such time as the governing body of the Lessee shall designate any other
or different authorized representative for purposes of the Agreement and any Lease or Escrow
Agreement.
Section 6. Severability. If any section,paragraph, clause or provision of this Resolution
shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of
such section,paragraph, clause or provision shall not affect any of the remaining provisions of this
Resolution.
Section 7. Repealer. All bylaws, orders and resolutions or parts thereof, inconsistent
herewith, are hereby repealed to the extent only of such inconsistency with respect to this
Resolution. This repealer shall not be construed as reviving any bylaw, order, resolution or
ordinance or part thereof.
Section 8. Effective Date. This Resolution shall be effective immediately upon its
approval and adoption.
ADOPTED AND APPROVED by the Board of County Commissioners of Monroe County,
Florida, this day of
BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY,FLORIDA,
[SEAL]
By:
Printed Name:
Title:
ATTEST:
By:
Printed: Name:
Title:
68780249.v2
The undersigned, a duly elected or appointed and acting County Clerk of the Lessee
identified in the above Resolution No. (the "Resolution"),hereby certifies that the Resolution
is a full, true and correct copy of such Resolution as adopted by the governing body of the Lessee
on 20 The Resolution is in full force and effect on the date hereof and has not
been amended, modified or otherwise changed by the governing body of the Lessee since the date
of adoption of the Resolution.
DATED this day of , 20
Name:
Title:
68780249.v2
EXHIBIT C-1B
FORM OF AUTHORIZING RESOLUTION(LEASE)
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, AUTHORIZING THE EXECUTION AND
DELIVERY OF AN EQUIPMENT SCHEDULE TO THE MASTER EQUIPMENT
LEASE/PURCHASE AGREEMENT FOR THE ACQUISITION, FINANCING
AND LEASING OF CERTAIN EQUIPMENT FOR THE PUBLIC BENEFIT
WITHIN THE TERMS PROVIDED HEREIN;AUTHORIZING THE EXECUTION
AND DELIVERY OF OTHER DOCUMENTS REQUIRED IN CONNECTION
THEREWITH;AND AUTHORIZING THE TAKING OF ALL OTHER ACTIONS
NECESSARY TO THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THIS RESOLUTION.
WHEREAS, Monroe County, Florida (the "Lessee"), a political subdivision of the State of
Florida, is authorized by the laws of the State of Florida to acquire, finance and lease personal
property (tangible and intangible)for the benefit of the Lessee and its inhabitants and to enter into
contracts with respect thereto; and
WHEREAS, the Board of County Commissioners of the Lessee (the `Board') has
determined that a need exists for the acquisition, financing and leasing of certain equipment with
a cost not to exceed$ and consisting of ,which constitutes
personal property necessary for the Lessee to perform essential governmental functions
(collectively, the "Equipment") on the terms herein provided; and
WHEREAS, in order to acquire such Equipment, the Lessee proposes to enter into that
certain Equipment Schedule (the "Equipment Schedule") with Banc of America Public Capital
Corp(or one of its affiliates),as lessor(the `Lessor"),substantially in the proposed form presented
to the Board at this meeting, which Equipment Schedule incorporates by reference the terms and
provisions of that certain Master Equipment Lease/Purchase Agreement dated as of
by and between Lessor and Lessee (the "Agreement'); and
WHEREAS, the Board deems it for the benefit of the Lessee and for the efficient and
effective administration thereof to enter into the Equipment Schedule and the other documentation
relating to the acquisition, financing and leasing of the Equipment to be therein described on the
terms and conditions therein and herein provided;
Now,THEREFORE,BE IT AND IT IS HEREBY RESOLVED by the governing body of the Lessee
as follows:
Section 1. Findings and Determinations. It is hereby found and determined that the
terms of the Equipment Schedule and the form of Payment Schedule, in the form presented to the
Board at this meeting, are in the best interests of the Lessee for the acquisition financing and
leasing of the Equipment.
68780249.v2
Section 2. Approval of Documents. The form, terms and provisions of the Equipment
Schedule and Payment Schedule are hereby approved in substantially the forms presented at this
meeting, with such insertions, omissions and changes as shall be approved by
[insert title of officials] ] of the Lessee or other members of the governing
body of the Lessee (the "Authorized Officials") executing the same, the execution of such
documents being conclusive evidence of such approval. The Authorized Officials are each hereby
authorized and directed to sign and deliver on behalf of the Lessee the Equipment Schedule under
which a separate Lease (as defined in the Agreement) is created, the Payment Schedule attached
thereto, the Escrow Agreement and any related exhibits attached thereto.
Section 3. Other Actions Authorized. The officers and employees of the Lessee shall
take all action necessary or reasonably required by the parties to the Lease to carry out, give effect
to and consummate the transactions contemplated thereby (including the execution and delivery
of a Final Acceptance Certificate, the Escrow Agreement, Disbursement Requests and any tax
certificate and agreement, as contemplated in the Agreement) and to take all action necessary in
conformity therewith, including,without limitation,the execution and delivery of any closing and
other documents required to be delivered in connection with the Lease.
Section 4. No General Liability. Nothing contained in this Resolution, the Lease, the
Escrow Agreement nor any other instrument shall be construed with respect to the Lessee as
incurring a pecuniary liability or charge upon the general credit of the Lessee or against its taxing
power, nor shall the breach of any agreement contained in this Resolution, the Lease, the Escrow
Agreement or any other instrument or document executed in connection therewith impose any
pecuniary liability upon the Lessee or any charge upon its general credit or against its taxing power,
except to the extent that the Rental Payments payable under the Lease entered into pursuant to the
Agreement are limited obligations of the Lessee, subject to annual appropriation, as provided in
the Agreement.
Section S. Appointment of Authorized Lessee Representatives. The
and of the Lessee are each hereby
designated to act as authorized representatives of the Lessee for purposes of the Lease and the
Escrow Agreement until such time as the governing body of the Lessee shall designate any other
or different authorized representative for purposes of the Lease or the Escrow Agreement.
Section 6. Severability. If any section,paragraph, clause or provision of this Resolution
shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of
such section,paragraph, clause or provision shall not affect any of the remaining provisions of this
Resolution.
Section 7. Repealer. All bylaws, orders and resolutions or parts thereof, inconsistent
herewith, are hereby repealed to the extent only of such inconsistency with respect to this
Resolution. This repealer shall not be construed as reviving any bylaw, order, resolution or
ordinance or part thereof.
Section 8. Effective Date. This Resolution shall be effective immediately upon its
approval and adoption.
68780249.v2
ADOPTED AND APPROVED by the Board of County Commissioners of Monroe County,
Florida, this day of
BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY,FLORIDA,
[SEAL]
By:
Printed Name:
Title:
ATTEST:
By:
Printed: Name:
Title:
68780249.v2
The undersigned, a duly elected or appointed and acting County Clerk of the Lessee
identified in the above Resolution No. (the "Resolution"),hereby certifies that the Resolution
is a full, true and correct copy of such Resolution as adopted by the governing body of the Lessee
on 20 The Resolution is in full force and effect on the date hereof and has not
been amended, modified or otherwise changed by the governing body of the Lessee since the date
of adoption of the Resolution.
DATED this day of , 20
Name:
Title:
68780249.v2
EXHIBIT C-2A
FORM OF INCUMBENCY AND AUTHORIZATION CERTIFICATE(AGREEMENT)
The undersigned, a duly elected or appointed and acting [ ] of Monroe
County, Florida("Lessee") certifies as follows:
A. The following listed persons are duly elected or appointed and acting officials of
Lessee (the "Officials") in the capacity set forth opposite their respective names below and the
facsimile signatures below are true and correct as of the date hereof, and
B. THE OFFICIALS ARE DULY AUTHORIZED, ON BEHALF OF LESSEE, TO NEGOTIATE,
EXECUTE AND DELIVER THE MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT DATED AS OF MAY
, 2023 (THE "AGREEMENT") AND SEPARATE EQUIPMENT SCHEDULES RELATING THERETO FROM
TIME TO TIME AS PROVIDED IN THE AGREEMENT (COLLECTIVELY, THE "EQUIPMENT SCHEDULES"),
EACH BY AND BETWEEN LESSEE AND BANC OF AMERICA PUBLIC CAPITAL CORP ("LESSOR"), [THE
ESCROW AND ACCOUNT CONTROL AGREEMENT DATED AS OF BY AND AMONG LESSOR,
LESSEE AND AS ESCROW AGENT,] ALL DOCUMENTS RELATED THERETO AND
DELIVERED IN CONNECTION THEREWITH, AND ANY FUTURE MODIFICATION(S) OR AMENDMENTS
THEREOF (COLLECTIVELY, THE "OPERATIVE AGREEMENTS"), AND THE OPERATIVE AGREEMENTS
EACH ARE THE BINDING AND AUTHORIZED AGREEMENTS OF LESSEE,ENFORCEABLE IN ALL RESPECTS
IN ACCORDANCE WITH THEIR RESPECTIVE TERMS.
Name of Official Title Signature
DATED: BY:
NAME:
TITLE:
(THE SIGNER OF THIS CERTIFICATE CANNOT BE LISTED ABOVE AS AUTHORIZED TO EXECUTE THE
OPERATIVE AGREEMENTS.)
68780249.v2
EXHIBIT C-213
FORM OF INCUMBENCY AND AUTHORIZATION CERTIFICATE(LEASE)
The undersigned, a duly elected or appointed and acting [ ] of Monroe County,
Florida("Lessee") certifies as follows:
A. The following listed persons are duly elected or appointed and acting officials of
Lessee (the "Officials") in the capacity set forth opposite their respective names below and the
facsimile signatures below are true and correct as of the date hereof, and
B. THE OFFICIALS ARE DULY AUTHORIZED, ON BEHALF OF LESSEE, TO NEGOTIATE,
EXECUTE AND DELIVER THE EQUIPMENT SCHEDULE NO. DATED AS OF (THE
"EQUIPMENT SCHEDULE"), WHICH INCORPORATES BY REFERENCE THE TERMS AND PROVISIONS OF
THE MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT DATED AS OF MAY , 2023 (THE
"AGREEMENT"), EACH BY AND BETWEEN LESSEE AND BANC OF AMERICA PUBLIC CAPITAL CORP
("LESSOR"), [THE ESCROW AND ACCOUNT CONTROL AGREEMENT DATED AS OF BY AND
AMONG LESSOR, LESSEE AS ESCROW AGENT,] AND ALL DOCUMENTS RELATED
THERETO AND DELIVERED IN CONNECTION THEREWITH, AND ANY FUTURE MODIFICATION(S) OR
AMENDMENTS THEREOF (COLLECTIVELY, THE "OPERATIVE AGREEMENTS'), AND THE OPERATIVE
AGREEMENTS EACH ARE THE BINDING AND AUTHORIZED AGREEMENTS OF LESSEE,ENFORCEABLE IN
ALL RESPECTS IN ACCORDANCE WITH THEIR RESPECTIVE TERMS.
Name of Official Title Signature
DATED: BY:
NAME:
TITLE:
(THE SIGNER OF THIS CERTIFICATE CANNOT BE LISTED ABOVE AS AUTHORIZED TO EXECUTE THE
OPERATIVE AGREEMENTS.)
68780249.v2
EXHIBIT D
FORM OF OPINION OF COUNSEL TO LESSEE
(to be typed on letterhead of counsel)
Banc of America Public Capital Corp
11333 McCormick Road
Hunt Valley II
M/C MD5-032-07-05
Hunt Valley, MD 21031
Attention: Contract Administration
Re: Equipment Schedule No. dated to Master
Equipment Lease/Purchase Agreement, dated as of May 2023, by and
between Banc of America Public Capital Corp, as Lessor, and Monroe
County, Florida, as Lessee
Ladies and Gentlemen:
As legal counsel to Monroe County, Florida ("Lessee"), I have examined (a) an executed
counterpart of that certain Master Equipment Lease/Purchase Agreement, dated as of May ,
2023 (the "Agreement") and Exhibits thereto, by and between Banc of America Public Capital
Corp, as lessor ("Lessor"), and Lessee; (b) an executed counterpart of Equipment Schedule
No. , dated , by and between Lessor and Lessee, which incorporates by
reference the terms and provisions of the Agreement (such Equipment Schedule No.
together with such incorporated terms and provisions are herein referred to collectively as the
"Equipment Schedule"), has attached the Payment Schedule with respect thereto (the "Payment
Schedule") executed by Lessee, and provides for the lease of certain property listed in the
Equipment Schedule (the "Equipment"); (c) an executed counterpart of that certain Escrow and
Account Control Agreement dated as of (the "Escrow Agreement"),by and among
Lessor, Lessee and , as Escrow Agent; (d) an executed counterpart of the
ordinances or resolutions of Lessee with respect to authorization of the transaction contemplated
by the Agreement,the Equipment Schedule,the Escrow Agreement and documents related thereto;
and (e) such other opinions, documents and matters of law as I have deemed necessary in
connection with the following opinions. The Agreement, the Equipment Schedule, including the
terms and provisions of the Agreement incorporated therein by reference, the related Payment
Schedule, the Escrow Agreement and the documents relating thereto are herein collectively
referred to as the "Transaction Documents".
Based on the foregoing, I am of the following opinions:
1. Lessee is a political subdivision of the State within the meaning of
Section 103(c) of the Internal Revenue Code of 1986, as amended (the "Code") and the
obligations of Lessee under the Lease will constitute an obligation of Lessee within the
meaning of Section 103(a) of the Code, notwithstanding Section 103(b) of the Code.
1
68780249.v2
2. Lessee has the requisite power and authority to lease and acquire the
Equipment and to execute and deliver the Transaction Documents and to perform its
obligations under the Transaction Documents.
3. The Transaction Documents have been duly authorized, approved, executed
and delivered by and on behalf of Lessee and the Transaction Documents are legal, valid
and binding obligations of Lessee, enforceable against Lessee in accordance with their
respective terms, except to the extent limited by State and Federal law affecting creditor's
remedies and by bankruptcy, reorganization, moratorium or other laws of general
application relating to or affecting the enforcement of creditors' rights.
4. The authorization, approval, execution and delivery of the Transaction
Documents and all other proceedings of Lessee relating to the transactions contemplated
thereby have been performed in accordance with all open meeting laws, procurement and
public bidding laws and all other applicable State or Federal laws.
5. There is no proceeding pending or threatened in any court or before any
governmental authority or arbitration board or tribunal that,if adversely determined,would
adversely affect the transactions contemplated by the Transaction Documents or the
security interest of Lessor or its assigns, as the case may be, in the Equipment under the
Lease, the Escrow Account or other Collateral thereunder.
[6. The portion of Rental Payments designated as interest is excluded from
Lessor's gross income for Federal income tax purposes under Section 103 of the Code and
is exempt from State of personal income taxes; and such interest is not
a specific item of tax preference for purposes of the Federal alternative minimum tax.I]
[6. The portion of Rental Payments designated as interest or constituting or
accruing as original issue discount is excluded from Lessor's gross income for Federal
income tax purposes under Section 103 of the Code and is exempt from State of
personal income taxes; and such interest and original issue discount are
not a specific item of tax preference for purposes of the Federal alternative minimum tax.2]
I Please use this provision if the opinion of counsel will include a tax opinion.
2 Please use this provision if the opinion of counsel will include a tax opinion and there is OID.
68780249.v2
All capitalized terms herein shall have the same meanings as in the Transaction
Documents, unless otherwise provided herein. Lessor and its successors and assigns[, and any
counsel rendering an opinion on the tax-exempt status of the Rental Payments,3] are entitled to
rely on this opinion.
Printed Name: Signature:
Firm: Dated:
Address:
Telephone No.:
3 Please use this provision if bond counsel will be providing a separate tax opinion.
68780249.v2
EXHIBIT E
FORM OF FINAL ACCEPTANCE CERTIFICATE
Banc of America Public Capital Corp
11333 McCormick Road
Hunt Valley II
M/C MD5-032-07-05
Hunt Valley, MD 21031
Attention: Contract Administration
Re: Equipment Schedule No. dated to Master
Equipment Lease/Purchase Agreement, dated as of May 2023, by and
between Banc of America Public Capital Corp, as Lessor, and Monroe
County, Florida, as Lessee
Ladies and Gentlemen:
In accordance with the above-referenced Master Equipment Lease/Purchase Agreement
(the "Agreement"), the undersigned Lessee hereby certifies and represents to, and agrees with,
Lessor as follows:
1. All of the Equipment listed in the above-referenced Equipment Schedule
(the "Equipment Schedule")has been delivered, installed and accepted on the date hereof.
2. Lessee has conducted such inspection and/or testing of the Equipment listed
in the Equipment Schedule as it deems necessary and appropriate and hereby acknowledges
that it accepts the Equipment for all purposes.
3. Lessee is currently maintaining the insurance coverage required by
Section 7.02 of the Agreement.
4. Lessee hereby reaffirms that the representations, warranties and covenants
contained in the Agreement and incorporated into the Equipment Schedule by reference
are true and correct as of the date hereof.
5. (a)No event or condition that constitutes, or with notice or lapse of time, or
both, would constitute, an Event of Default exists at the date hereof under any Lease
currently in effect; (b)no Material Adverse Change has occurred since the date of the
execution and delivery of the Agreement; (c)no Event of Non-appropriation under any
Lease currently in effect has occurred or been threatened; and (d)no Lease has been
terminated as the result of the occurrence of an Event of Default or an Event of
Non-appropriation.
68780249.v2
Capitalized terms used, but not defined, in this Final Acceptance Certificate shall have the
same meanings as when such terms are used in the Agreement.
Date:
LESSEE:
Monroe County, Florida
By:
Name:
Title:
68780249.v2
EXHIBIT F
FORM OF SELF-INSURANCE CERTIFICATE
Banc of America Public Capital Corp
11333 McCormick Road
Hunt Valley II
M/C MD5-032-07-05
Hunt Valley, MD 21031
Attention: Contract Administration
Re: Equipment Schedule No. dated to Master
Equipment Lease/Purchase Agreement, dated as of May , 2023, by
and between Banc of America Public Capital Corp, as Lessor, and
Monroe County, Florida, as Lessee
In connection with the above-referenced Equipment Schedule (the "Equipment
Schedule"), Monroe County, Florida (the "Lessee") hereby warrants and represents to Banc of
America Public Capital Corp the following information. The terms capitalized herein but not
defined herein shall have the meanings assigned to them in the above-referenced Master
Equipment Lease/Purchase Agreement (the "Agreement") incorporated into the Equipment
Schedule by reference.
1. The Lessee is self-insured for damage or destruction to the Equipment listed in the
Equipment Schedule (herein, the "Equipment"). The dollar amount limit for property damage to
the Equipment under such self-insurance program is $ . [The Lessee
maintains an umbrella insurance policy for claims in excess of Lessee's self-insurance limits for
property damage to the Equipment which policy has a dollar limit for property damage to the
Equipment under such policy of$ .]
2. The 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 operation of the Equipment. The dollar
limit for such liability claims under the Lessee's self-insurance program is $
[The Lessee maintains an umbrella insurance policy for claims in excess of Lessee's self-insurance
limits for liability which policy has a dollar limit 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 in the amount of$
[3]. The Lessee maintains a self-insurance fund. Monies in the self-insurance fund
[are/are not] subject to annual appropriation. The total amount maintained in the self-insurance
fund to cover Lessee's self-insurance liabilities is $ [Amounts paid from the
Lessee's self-insurance fund are subject to a dollar per claim of$ ]
68780249.v2
[3]. The Lessee does not maintain a self-insurance fund. The Lessee obtains funds to pay
claims for which it has self-insured from the following sources:
Amounts payable for claims from such sources are limited as follows:
4. Attached hereto are copies of certificates of insurance with respect to policies
maintained by Lessee.
LESSEE:
Monroe County, Florida
By:
Name:
Title:
68780249.v2
EXHIBIT G
RESERVED
68780249.v2
EXHIBIT H
FORM OF NOTICE AND ACKNOWLEDGEMENT OF ASSIGNMENT
Dated
BANC OF AMERICA PUBLIC CAPITAL CORP ("Assignor") hereby gives notice that, as of
, 20 , it has assigned and sold to ("Assignee") all of
Assignor's right, title and interest in, to and under Equipment Schedule No. , dated
(including the Payment Schedule attached thereto, the "Equipment
Schedule"), which incorporates by reference the terms and provisions of that certain Master
Equipment Lease/Purchase Agreement dated as of May , 2023 (the "Agreement"), each by and
between Assignor and Monroe County, Florida ("Lessee"), together with all exhibits, schedules,
riders, addenda and attachments related thereto, and all certifications and other documents
delivered in connection therewith,the Rental Payments and other amounts due under the Lease(as
such term is hereinafter defined), all of Assignor's right, title and interest in the Equipment listed
in the Equipment Schedule and all of Assignor's right,title and interest in,to and under the Escrow
and Account Control Agreement dated as of 20 (the "Escrow
Agreement") by and among Lessee, Assignor and , as Escrow Agent,
together with the Escrow Account related thereto (collectively, the "Assigned Property").
For purposes of this Notice and Acknowledgment of Assignment (the
"Acknowledgment"), "Lease" means collectively the Equipment Schedule and the terms and
provisions of the Agreement incorporated therein by reference, together with all exhibits,
schedules, riders, addenda and attachments related thereto, and all certifications and other
documents delivered in connection therewith. The term "Lease" specifically excludes all other
Equipment Schedules entered into under the Agreement and Rental Payments other than with
respect to the Equipment Schedule. Each capitalized term used but not defined herein has the
meaning set forth in the Agreement.
1. Lessee hereby acknowledges the effect of the assignment of the Assigned Property
and absolutely and unconditionally agrees to deliver to Assignee all Rental Payments and other
amounts coming due under the Lease in accordance with the terms thereof on and after the date of
this Acknowledgment.
2. Lessee hereby agrees that: (i) Assignee shall have all the rights of Lessor under the
Lease and all related documents, including, but not limited to, the rights to issue or receive all
notices and reports, to give all consents or agreements to modifications thereto, to receive title to
the Equipment in accordance with the terms of the Lease, to declare a default and to exercise all
rights and remedies thereunder in connection with the occurrence of an Event of Non-appropriation
or an Event of Default; and (ii) [except as provided in Section 3.03 of the Agreement,] the
obligations of Lessee to make Rental Payments and to perform and observe the other covenants
and agreements contained in the Lease shall be absolute and unconditional in all events without
abatement, diminution, deduction, set-off or defense.
68780249.v2
3. Lessee agrees that, as of the date of this Notice and Acknowledgment of Assignment
(this "Acknowledgement"), the following information about the Lease is true, accurate and
complete:
Number of Rental Payments Remaining
Amount of Each Rental Payment $
Total Amount of Rental Payments $
Remaining
Frequency of Rental Payments
Next Rental Payment Due
Funds Remaining in Escrow Account $
4. The Lease remains in full force and effect,has not been amended,no Event of Default
(or event which with the passage of time or the giving of notice or both would constitute a default)
has occurred thereunder and no Event of Non-appropriation has occurred or is threatened with
respect thereto.
5. Assignor hereby acknowledges the transfer restrictions imposed by Section 11.01 of
the Agreement and confirms that the assignment to Assignee has been made in accordance with
the provisions of that Section.
6. Any inquiries of Lessee related to the Lease and any requests for disbursements from
the Escrow Account, if applicable, and all Rental Payments and other amounts coming due
pursuant to the Lease on and after the date of this Acknowledgment should be remitted to Assignee
at the following address (or such other address as provided to Lessee in writing from time to time
by Assignee):
68780249.v2
ACKNOWLEDGED AND AGREED:
LESSEE: MONROE COUNTY,FLORIDA
[FOR EXHIBIT PURPOSES ONLY]
By:
Name:
Title:
ASSIGNOR: BANC OF AMERICA PUBLIC CAPITAL CORP
[FOR EXHIBIT PURPOSES ONLY]
By:
Name:
Title:
68780249.v2
EXHIBIT I
ESCROW AND ACCOUNT CONTROL AGREEMENT
68780249.v2
EQUIPMENT SCHEDULE No. 1 -GENERAL EQUIPMENT
Re: Master Equipment Lease/Purchase Agreement, dated as of May 19, 2023,
between Banc of America Public Capital Corp, a Kansas corporation, as
Lessor, and Monroe County, Florida, as Lessee
1. Defined Terms. All terms used herein have the meanings ascribed to them in the
above-referenced Master Equipment Lease/Purchase Agreement(the "Agreement").
2. Equipment. For purposes of the Lease created hereby, the items of Equipment are
hereby included under this Equipment Schedule is as follows:three(3)Helicopters Model AW139,
each with two (2) Pratt & Whitney Canada PT6C-67C turbo-shaft engines, as more particularly
described in the Aircraft Addendum to Equipment Schedule No. 1, attached hereto and
incorporated herein by this reference (the "Aircraft Addendum"), together with all attachments,
additions, accessions, parts, repairs, improvements, replacements and substitutions thereto as
provided in the Agreement.
Prior to Lessee's Final Acceptance of the Equipment hereunder, Lessee agrees to
provide Lessor with such other descriptive information, including serial numbers of the engines,
propellers and other equipment, avionics, accessories, improvements, additions, modifications,
appurtenances and appliances relating to such Equipment, as applicable, in accordance with the
Aircraft Addendum.
3. Payment Schedule.
(a) Rental Payments; Commencement Date. The Rental Payments shall be in
such amounts and payable on such Rental Payment Dates as set forth in the Payment Schedule
attached to this Equipment Schedule and incorporated herein by this reference, subject to
adjustment upon the occurrence of an Event of Taxability as provided in Section 4.06 of the
Agreement. Lessee's obligation to pay Rental Payments under the Lease created hereby shall
commence on the earlier of(i)the date on which the Equipment listed in this Equipment Schedule
is accepted by Lessee in the manner described in Section 5.01 of the Agreement, as evidenced by
the Final Acceptance Certificate executed by Lessee and substantially in the form of Exhibit E
attached to the Agreement, or (ii)the date on which the Acquisition Amount is deposited in an
Escrow Account for the purpose of acquiring and installing the Equipment listed in this Equipment
Schedule pursuant to Section 3.04(c) of the Agreement(the earlier of such two dates being herein
referred to as the "Commencement Date").
(b) Prepayment Price Schedule. The Prepayment Price on each Rental Payment
Date shall be the amount set forth for such Rental Payment Date in the"Prepayment Price"column
of the Payment Schedule attached to this Equipment Schedule plus all Rental Payments then due
(including the Rental Payment due on such Rental Payment Date)plus all other amounts then
owing under this Equipment Schedule.
68791312.v4
4. Representations, Warranties and Covenants. Lessee hereby represents, warrants and
covenants that its representations, warranties and covenants set forth in the Agreement
(particularly Section 2.01 thereof) are true and correct as though made on the Commencement
Date. Lessee further represents and warrants that (a)no Material Adverse Change has occurred
since the dated date of the Agreement; (b)no Event of Default has occurred and is continuing
under any Lease currently in effect; (c)no Event of Non-appropriation under any Lease currently
in effect has occurred or is threatened; (d)no Lease has been terminated as the result of the
occurrence of an Event of Default or an Event of Non-appropriation; (e)the governing body of
Lessee has authorized the execution and delivery of the Agreement and this Equipment Schedule;
(f)the Equipment listed in this Equipment Schedule is essential to the functions of Lessee or to
the services Lessee provides its citizens; (g) Lessee has an immediate need for, and expects to
make immediate use of, substantially all such Equipment, which will be used by Lessee only for
the purpose of performing one or more of Lessee's governmental or proprietary functions
consistent with the permissible scope of its authority; and (h) Lessee currently expects and
anticipates adequate funds to be available for all future payments or rent due after the current
budgetary period.
5. The Lease. The terms and provisions of the Agreement(other than to the extent that
they relate solely to other Equipment Schedules or Equipment listed on other Equipment
Schedules) are hereby incorporated into this Equipment Schedule by reference and made a part
hereof.
6. Acquisition Amount. The Acquisition Amount that Lessor shall pay to the Escrow
Agent for deposit into the Escrow Account in connection with this Equipment Schedule is
$53,000000. It is expected that by twenty-four (24 months) from the date of this Equipment
Schedule, Lessee will have taken possession of all items of Equipment shown above and that the
Lessee's final Disbursement Request pursuant to the Escrow Agreement will be signed by Lessee,
approved by Lessor and delivered to the Escrow Agent on or before twenty-four(24)months from
the date of this Equipment Schedule.
7. Lease Term. The Lease Term shall consist of the Original Term and 14 consecutive
Renewal Terms, with the final Renewal Term ending on [April 1], 2038, subject to earlier
termination pursuant to the Agreement.
8. Registration. Lessee shall attach appropriate identifying marks on or in the
Equipment as required by the aviation regulations, and shall record and file such documents to
identify Lessor as the Lessor of the Equipment and Lessee as the title holder and operator of the
Equipment prior to receipt of the Equipment, all as further outlined in the Aircraft Addendum.
9. Base Location. The base location of the Equipment is identified in the Aircraft
Addendum, and may be changed from time to time with the approval of the Bank. If the base
location of the Equipment is not located on Real Property owned by the Lessee, Lessee agrees to
abide by the applicable provisions of Section 2.01(k) of the Agreement.
10. Hangar Location. The primary hangar location for certain Aircraft(as defined in the
Aircraft Addendum)will be 5900 College Road, Key West, Florida 33040 ("Lower Keys Hangar
2
68791312.v4
Location"), which is owned by Key West HMA, LLC, a Florida limited liability company ("Key
West HMA"), and leased to the Monroe County Sheriff's Office (the "Sheriff's Office")pursuant
to that certain Lease Agreement dated March 4, 2020 (the "Hangar Lease"), between Key West
HMA, as landlord, and the Sheriff's Office, as tenant. Pursuant to that certain Property Access
Agreement between Key West HMA, Lessor and Lessee, dated May 19, 2023, Lessor will be
granted access to the Lower Keys Hangar Location upon the occurrence of certain events as
described therein.
The Equipment described above is subject to the terms and conditions described in
the Aircraft Addendum, which are incorporated herein, in addition to any terms and conditions
applicable to such Equipment in the Agreement.
3
68791312.v4
Dated as of the first date written above.
LESSOR: LESSEE:
Banc of America Public Capital Corp Monroe County, Florida
11333 McCormick Road 1100 Simonton Street, Suite 2-213
Hunt Valley 11 Key West, Florida 33040
M/C MD5-032-07-05 Attention: County Administrator
Hunt Valley, MD 21031
Attention: Contract Administration
Fax No.: (443) 541-3057
By: By:
Name?,,,' ffiudMine Reiche,nbach Name: Craig Cates
Title: Authorized Agent Title: Mayor of the Board of County
Commissioners of Monroe County
Counterpart No. of manually executed and serially numbered counterparts. To the
extent that the Lease created hereby constitutes chattel paper(as defined in the applicable Uniform
Commercial Code), no security or ownership interest herein may be created through the transfer
or possession of any Counterpart other than Counterpart No. 1.
[Signature Page I Equipment Schedule No. I]
(Monroe County, Florida)
Dated as of the first date written above.
LESSOR: LESSEE:
Banc of America Public Capital Corp Monroe County, Florida
11333 McCormick Road 1100 Simonton Street, Suite 2-213
Hunt Valley 11 Key West, Florida 33040
M/C MD5-032-07-05 Attention: County Administrator
Hunt Valley,MD 2 1 O31
Attention: Contract Administration
Fax No.: (443)541-3057
By: By:
Name: Name. Cr" Ig ates
Title: Title. Mayor of the Board of County
Commissioners of Monroe County
Counterpart No. _ of manually executed and serially numbered counterparts. To the
extent that the Lease created hereby constitutes chattel paper(as defined in the applicable Uniform
Commercial Code), no security or ownership interest herein may be created through the transfer
or possession,of any Counterpart other than Counterpart No. 1.
PAO14 OE Cou
' I F
V ED
A
P'CZ11011'
ASSISTANT
Dats
[Signature Page Equipment Schedule No. 1]
(Monroe County, Florida)
68791312,v2
EXHIBIT B
PAYMENT SCHEDULE
PREPAYMENT CASUALTY
PRICE VALUE
[including [including
RENTAL RENTAL prepayment casualty premium;
PAYMENT PAYMENT INTEREST PRINCIPAL OUTSTANDING premium;if if applicablel
DATE AMOUNT PORTION PORTION BALANCE Mlicablel
5/19/2023 $0.00 $0.00 $0.00 $53,000,000.00 N/A $53,530,000.00
10/1/2023 $633,351.77 $633,351.77 $0.00 $53,000,000.00 N/A $53,530,000.00
4/1/2024 $3,873,661.50 $863,661.50 $3,010,000.00 $49,990,000.00 N/A $50,489,900.00
10/1/2024 $814,612.05 $814,612.05 $0.00 $49,990,000.00 N/A $50,489,900.00
4/1/2025 $3,689,612.05 $814,612.05 $2,875,000.00 $47,115,000.00 N/A $47,586,150.00
10/1/2025 $767,762.48 $767,762.48 $0.00 $47,115,000.00 N/A $47,586,150.00
4/1/2026 $3,737,762.48 $767,762.48 $2,970,000.00 $44,145,000.00 N/A $44,586,450.00
10/1/2026 $719,364.85 $719,364.85 $0.00 $44,145,000.00 N/A $44,586,450.00
4/1/2027 $3,784,364.85 $719,364.85 $3,065,000.00 $41,080,000.00 N/A $41,490,800.00
10/1/2027 $669,419.14 $669,419.14 $0.00 $41,080,000.00 N/A $41,490,800.00
4/1/2028 $3,834,419.14 $669,419.14 $3,165,000.00 $37,915,000.00 N/A $38,294,150.00
10/1/2028 $617,843.88 $617,843.88 $0.00 $37,915,000.00 N/A $38,294,150.00
4/1/2029 $3,887,843.88 $617,843.88 $3,270,000.00 $34,645,000.00 N/A $34,991,450.00
10/1/2029 $564,557.60 $564,557.60 $0.00 $34,645,000.00 N/A $34,991,450.00
4/1/2030 $3,939,557.60 $564,557.60 $3,375,000.00 $31,270,000.00 N/A $31,582,700.00
10/1/2030 $509,560.29 $509,560.29 $0.00 $31,270,000.00 N/A $31,582,700.00
4/1/2031 $3,994,560.29 $509,560.29 $3,485,000.00 $27,785,000.00 $27,785,000.00 $27,785,000.00
10/1/2031 $452,770.47 $452,770.47 $0.00 $27,785,000.00 $27,785,000.00 $27,785,000.00
4/1/2032 $4,052,770.47 $452,770.47 $3,600,000.00 $24,185,000.00 $24,185,000.00 $24,185,000.00
10/1/2032 $394,106.67 $394,106.67 $0.00 $24,185,000.00 $24,185,000.00 $24,185,000.00
4/1/2033 $4,109,106.67 $394,106.67 $3,715,000.00 $20,470,000.00 $20,470,000.00 $20,470,000.00
10/1/2033 $333,568.89 $333,568.89 $0.00 $20,470,000.00 $20,470,000.00 $20,470,000.00
4/1/2034 $4,168,568.89 $333,568.89 $3,835,000.00 $16,635,000.00 $16,635,000.00 $16,635,000.00
10/1/2034 $271,075.64 $271,075.64 $0.00 $16,635,000.00 $16,635,000.00 $16,635,000.00
4/1/2035 $4,231,075.64 $271,075.64 $3,960,000.00 $12,675,000.00 $12,675,000.00 $12,675,000.00
10/1/2035 $206,545.46 $206,545.46 $0.00 $12,675,000.00 $12,675,000.00 $12,675,000.00
4/1/2036 $4,296,545.46 $206,545.46 $4,090,000.00 $8,585,000.00 $8,585,000.00 $8,585,000.00
10/1/2036 $139,896.87 $139,896.87 $0.00 $8,585,000.00 $8,585,000.00 $8,585,000.00
4/1/2037 $4,364,896.87 $139,896.87 $4,225,000.00 $4,360,000.00 $4,360,000.00 $4,360,000.00
10/1/2037 $71,048.38 $71,048.38 $0.00 $4,360,000.00 $4,360,000.00 $4,360,000.00
4/1/2038 $4,431,048.38 $71,048.38 $4,360,000.00 $0.00 $0.00 $0.00
Total $67,561,278.57 $14,561,278.57 $53,000,000.00
Contract Rate; Taxable Rate. The Contract Rate for this Equipment Schedule is 3.2591%per annum. The
Taxable Rate for this Equipment Schedule is 4.1597%per annum.
Prepayment Option Commencement Date. Forpurposes of Section 10.01 of the Agreement,the Prepayment
Option Commencement Date for this Equipment Schedule is April 1, 2031.
68791312.v4
LESSOR: LESSEE:
Banc of America Public Capital Corp Monroe County, Florida
lei
By: By
Name: S Nt1 ekgrh,,nba Name: Craig Cates
Title: utharized Agetif Title; Mayor of the Board of County
Commissioners of Monroe County
[Signature Page I Payment Schedule]
(Monroe County)
LESSOR: LESSEE:
Banc of America Public Capital Corp Monroe County, Florida
By: By:
Name: Name: C ra' C t
Title: Title: Mayor of'the Board of County
Commissioners of"Monroe County
C CU 'OE couNTY ATT HNEY
PllltNED)�7
P r
CD d.MERCADO
ASS
r C
Dal*—
[Signature Page PaymentSchedule]
(Monroe County, Florida)
ADDENDUM RELATING TO AIRCRAFT
THIS ADDENDUM RELATING TO AIRCRAFT (this "Addendum") is dated
as of May 19, 2023 among Banc of America Public Capital Corp ("Lessor"), and Monroe
County, Florida ("Lessee")pursuant to and as a part of that certain and Equipment Schedule No.
1 thereto, between Lessor and Lessee, dated as of May 19, 2023 (the "Equipment Schedule")
entered into pursuant to that certain Master Equipment Lease/Purchase Agreement, between
Lessor and Monroe County, Florida, dated as of May 19, 2023 (the "Master Lease Agreement"
and, together with the Equipment Schedule, and including all related attachments, supplements
and amendments, the "Agreement"). For the consideration described in the Agreement, and
subject to the terms and conditions of the Agreement, as supplemented and amended by this
Addendum, Lessor and Lessee hereby agree as follows:
A. Generally. This Addendum shall constitute a part of the Agreement, and supplements and
amends the Agreement, as and to the extent provided below, for the purpose of modifying the
terms of the Agreement in a manner consistent with Lessor's lease financing or refinancing (as
applicable) of Lessee's acquisition of the "Aircraft" described herein. In the event any provisions
of the Agreement are inconsistent with the provisions or purposes of this Addendum, the
provisions of this Addendum shall prevail. All other terms and conditions of the Agreement not
specifically amended by this Addendum shall remain unchanged and in full force and effect and
are hereby ratified and confirmed by Lessee. Certain of the terms used in this Addendum are
defined in Section 8 herein, and any capitalized terms not defined in this Addendum are as defined
in the Agreement.
B. Supplemental or Amending Provisions. The Agreement is hereby supplemented and
amended, as follows:
1. Description of"Equipment" (Financing of Aircraft). All references to "Equipment"
in the Agreement shall mean the three (3) Aircraft (including, the Airframe, and whether or not
then attached, the Engine, Rotor Blade and Rotor Components, and Parts for each Aircraft)
acquired by Lessee pursuant to that certain Contract to be entered into between Agustawestland
Philadelphia Corporation, a Delaware corporation, as seller (the "Seller") and Lessee, as buyer
(the "Purchase Contract"), and described in the Equipment Schedule and in Annex A to this
Addendum, unless otherwise provided in this Addendum. The Airframe for each Aircraft is of a
type certified by the FAA to transport at least five (5)persons including crew; or goods in excess
of 450 kilograms. The Engine for each Aircraft has at least 550 rated takeoff shaft horsepower or
the equivalent of such horsepower for helicopters.
2. Supplemental Conditions Precedent. In addition to the conditions provided in the
Agreement,Lessor's willingness to fund the Aircraft shall be subj ectto the following supplemental
conditions, all of which must be to Lessor's, and, as applicable, Aviation Counsel's, satisfaction:
(a) As a prerequisite for Lease Proceeds to be paid by Lessor to TMI Trust Company
(the "Escrow Agent")for deposit in the escrow account established under the Escrow Agreement
dated as of May 19, 2023, among Lessor, Lessee and the Escrow Agent (the "Escrow
Agreement") in the total amount of $53,000,000 Lessor and/or (if so delivered by Lessor)
68859091.v5
Aviation Counsel shall have received all of the following in form and substance satisfactory to
Lessor and/or Aviation Counsel with respect to the Lease and the Aircraft:
(i) All items (as applicable to the Lease) required to be delivered to Lessor in
Section 3.04 of the Master Lease Agreement; and
(ii) Such other documents, filings, certificates, opinions, assurances and evidence
of such other matters, as Lessor, Lessor's counsel or Aviation Counsel, may reasonably request.
(b) As a prerequisite for Lease Proceeds to be disbursed from the Escrow Account in
the amount of$1,450,000 and a reimbursement to Lessee in the amount of$100,000, on or prior
to the date Lease Proceeds are to be disbursed, Lessor and/or (if so delivered by Lessor) Aviation
Counsel shall have received all of the following in form and substance satisfactory to Lessor and/or
Aviation Counsel with respect to the Lease and the Aircraft:
(i) All items described in Section 2(a) above;
(ii) A copy of the executed Purchase Contract and complete specification of the
Equipment;
(iii) Collateral Assignment of Purchase Contract assigning the Purchase
Contract between Lessee and the Vendor to Lessor;
(iv) Surety Bond naming Lessor as dual-obligee;
(v) A fully completed Disbursement Request, executed by Lessee, together
with Vendor's deposit invoice for payment and wiring instructions;
(vi) A fully executed Lease Agreement between Key West HMA, LLC, a
Florida limited liability company ("Key West HMA"), as landlord, and the Sheriff's Office, as
tenant, dated March 4, 2020 (the "Hangar Lease"), relating to the primary hangar location of the
certain Aircraft that will be hangared on the leasehold property of Key West HMA located at 5900
College Road, Key West, Florida 33040 (the "Lower Keys Aircraft") and the Property Access
Agreement between Key West HMA, Lessor and Lessee dated May 19, 2023 substantially in the
form attached hereto as Exhibit I;
(vii) Such other documents, filings, certificates, opinions, assurances and
evidence of such other matters, as Lessor, Lessor's counsel or Aviation Counsel, may reasonably
request.
(c) As a prerequisite for Lease Proceeds to be disbursed from the Escrow Account for
additional deposits to be made to the Vendor(or a reimbursement of such payment to the Lessee),
on or prior to the date Lease Proceeds are to be disbursed,Lessor and/or(if so delivered by Lessor)
Aviation Counsel shall have received all of the following in form and substance satisfactory to
Lessor and/or Aviation Counsel with respect to the Lease and the Aircraft:
(i) All items described above in Section 2(a) and 2(b) hereof,
2
68859091.v5
(ii) A fully completed Disbursement Request, executed by Lessee, together
with Vendor's deposit invoice for payment and wiring instructions; and
(iii) Evidence of Lessee's reservation of an "N" number for each item of
Equipment, together with an assignment of the rights thereto to Lessor; and
(iv) Such other documents, filings, certificates, opinions, assurances and
evidence of such other matters, as Lessor, Lessor's counsel or Aviation Counsel, may reasonably
request.
(d) As a prerequisite for each final disbursement of Lease Proceeds from the Escrow
Account,pursuant to Lessee's final Disbursement Request with respect to each item of Equipment
to be delivered pursuant to the Purchase Contract for the payment of the final amount due to the
Vendor with respect to each such Aircraft(or a reimbursement of such payment to the Lessee), on
or prior to the date Lease Proceeds are to be disbursed, Lessor and/or (if so delivered by Lessor)
Aviation Counsel shall have received all of the following in form and substance satisfactory to
Lessor and/or Aviation Counsel with respect to the Lease and the Aircraft:
(i) All items described above in Section 2(a), 2(b) and 2(c) hereof, and
(ii) Evidence of the Sheriff's Office certification under Part 135 of the Federal
Aviation Regulations;
(iii) A fully completed final Disbursement Request, executed by Lessee,
together with any related invoices (and proof of payment of such invoices if Lessee seeks
reimbursement for prior expenditures) and wiring instructions;
(iv) At the time the final Aircraft is delivered (if all Aircraft are not delivered
simultaneously), a Final Acceptance Certificate, executed by Lessee, confirming, among other
things, delivery to and acceptance by Lessee of the Equipment;
(v) Evidence of the Required Coverages (as defined in Section 4(f) hereof);
(vi) Confirmation of no change in Lessee's reservation of an "N"number;
(vii) Information necessary to complete serial numbers and other information in
Annex A to the executed Aircraft Addendum;
(viii) A Certificate of Aircraft Registration (AC Form 8050-3), or, if the
Certificate of Aircraft Registration has not been issued, an Aircraft Registration Application (AC
Form 8050-1);
(ix) A Warranty Bill of Sale in the name of Lessee;
(x) An Aircraft Bill of Sale (AC Form 8050-2) in the name of Lessee;
(xi) A Standard Airworthiness Certificate (AC Form 8100-2);
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68859091.v5
(xi) A fully executed maintenance agreement; and
(xii) Confirmation from Aviation Counsel that: (i) the Aircraft, the Engine, the
Rotor Blade, and Rotor Components and the other property, rights and Collateral that are subject
to the Lessor's interest, shall be free and clear of all other Liens, including any Liens recorded or
registered with the FAA, and(ii)all of the filings and registrations referenced above in this Section
(d) have been made, and the related filing and registration information has been reported to the
Lessor telephonically or electronically (all as confirmed to Lessor by Aviation Counsel).
3. Supplemental Representations, Warranties and Covenants. In addition to its
representations, warranties and covenants in the Agreement, Lessee, on the date of the Final
Disbursement, further represents, warrants and covenants as follows:
(a) The Aircraft. The Aircraft is currently certified under existing FAA rules and
regulations, has been delivered to Lessee, is in its possession, completely inspected by Lessee to
its satisfaction, and unconditionally, irrevocably and fully accepted by Lessee; and without
limiting the foregoing, (i) the information contained in the Equipment Schedule (including the
registration number of the Aircraft, the serial numbers of the Airframe and the Engine the Rotor
Blade and Rotor Components and manufacturer and model numbers of the Airframe, Engine and
Rotor Blade and Rotor Components) is true and accurate in all respects, and (ii) the Aircraft is
airworthy in all respects and otherwise in good working order, repair and condition and fully
equipped to operate for its purpose, and in conformity with Applicable Standards.
(b) Operations. Lessee shall cause the Sheriff's Office to maintain its certification
under Part 135 of the FARs and shall ensure such certification remains in full force and effect. In
the event the Sheriff's Office fails to maintain its certification under Part 135 of the FARs for any
reason, Lessee shall: (i)take immediate control of the operations of the Aircraft, and(ii) continue
to use the Aircraft as essential governmental use equipment as described in Section 2.01(e) of the
Master Lease Agreement.
(c) Hangar Lease. Pursuant to Section 2.01(k) of the Master Lease Agreement, Lessee
shall cause the Sheriff's Office to take all necessary steps to provide for the entry of Lessor onto
the real property that serves as the primary hangar location of the Lower Keys Aircraft for the
purposes of exercising Lessor's rights under the Agreement, including but not limited to,
inspecting the Equipment and/or exercising its remedies hereunder upon a non-appropriation or an
Event of Default.
4. Obligations. Without limiting its other obligations under the Agreement, Lessee hereby
agrees to the following:
(a) Notices. Lessee will promptly give written notice to Lessor of(i) any accident or
similar event involving the Aircraft with respect to which there may be a risk of civil or criminal
liability, or resulting in any material damage, (ii) the commencement or threat of any material
litigation or proceedings affecting the Aircraft, (iii) any dispute between Lessor, Lessee or any
other person or entity and any governmental regulatory body or other party that involves the
Aircraft, and (iv) each scheduled and unscheduled maintenance, service, overhaul, repair or other
4
68859091.v5
event pursuant to which the Engine is to be removed from the Aircraft, at least 30 days' prior to
any such scheduled removal, and as soon as practicable prior to any such unscheduled removal.
(b) Compliance With Law. Lessee will (i) duly observe and conform to all
requirements of Applicable Law relating to the conduct of its business and/or the Aircraft,
(ii)remain a "citizen of the United States" within the meaning of the Transportation Code,
(iii) obtain and keep in full force and effect(A) all rights, franchises, licenses and permits that are
necessary to the proper conduct of its business, and(B) all governmental, administrative or agency
approvals required with respect to the performance of its obligations under the Agreement and the
operation of the Aircraft (including for emergency medical services and any other purposes for
which it may be operated), and its business generally, (iv) cause the Aircraft to remain duly
registered, in its name,under the Transportation Code(including,by making all necessary reports,
re-registering its ownership of the Aircraft, and taking all other actions required by Applicable
Law).
(c) Han Operating and Operatingand Operating Location. Lessee will neither permit the Aircraft to be
operated outside the continental United States nor change its principal base from that specified on
the Equipment Schedule without the prior written consent of Lessor, which consent shall not be
unreasonably withheld. Lessee further agrees not to operate or permit the Sheriff's Office to
operate the Aircraft in any area, at any time or in any manner (i) excluded from or otherwise not
covered by any of the Required Coverage, or with respect to which claims might be prohibited, or
(ii) in which such operation creates any unreasonable risks to the Aircraft or any person or entity,
or(iii) if prohibited by Applicable Law or any of the other provisions of the Agreement.
(d) Operations. Lessee will, and will cause the Sheriff's Office to, use, operate, load,
hangar and store the Aircraft in a careful and proper manner under and in compliance with all
applicable provisions of the FARs and with all other Applicable Standards, including, any of the
same applicable to airworthiness, security, or operation within any then applicable jurisdiction for
the purposes contemplated in the Agreement. The Sheriff's Office or Lessee, as provided in
Section 3(b) hereof, shall have "operational control" of the Aircraft(as determined in accordance
with the FARs and any other Applicable Laws) and operate the Aircraft pursuant to Part 135 of
the FARs.
(e) Maintenance. Lessee will,or will require the Sheriff's Office to,at its own expense,
(i) maintain, inspect, service, repair, overhaul and test the Aircraft, make any alterations or
modifications to the Aircraft, and furnish all parts, replacements, avionics, equipment,
mechanisms and devices, and otherwise conform its physical attributes, cause the Aircraft to have
communications capabilities, and maintain (in English) all Records for or with respect to the
Aircraft (all of which shall immediately, without further act, become part of the Aircraft and
subject to Lessor's interest),utilizing properly trained, licensed, and certified maintenance sources
and personnel utilizing replacement parts approved by the FAA and the applicable manufacturer,
in each case, (A) as and to the extent the same may at any time be required to comply with
Applicable Standards and(B) so that its value, condition and operating efficiency will at all times
be no less than was the case when delivered to Lessee, ordinary wear and tear from proper use
alone excepted (including, by (1) enrolling and maintaining the Airframe and the transmission in
a Maintenance Program, and the Engine in the Engine Maintenance Program and (2) complying
with all mandatory service bulletins and airworthiness directives by completing the same through
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68859091.v5
corrective modification in lieu of operating manual restrictions); (ii) adopt, implement and comply
with all security measures required by any Applicable Standards, or that are necessary or
appropriate for the proper protection of the Aircraft (whether on the ground or in flight) against
theft, vandalism, hijacking, destruction, bombing, terrorism or similar acts; and (iii) not make or
authorize any improvement, change, addition or alteration to the Aircraft if it will impair the
originally intended function or use of the Aircraft, impair the value of the Aircraft as it existed
immediately prior thereto, or violate any Applicable Standard.
(f) Insurance. Lessee agrees to maintain, or will cause the Sheriff's Office to maintain,
at all times and at its own cost and expense, with insurers of recognized responsibility reasonably
satisfactory to Lessor (but in no event having an A.M. Best or comparable agency rating of less
than "A-"): (i) (A) comprehensive Aircraft and general liability insurance against bodily injury or
property damage claims including contractual liability, premises damage, public liability, death
and property damage liability, public and passenger legal liability coverage, and sudden accident
pollution coverage, in an amount not less than $50,000,000.00 (for 8 or more seats, or if the
Aircraft will be used for emergency air services), or $25,000,000 in all other circumstances) for
each single occurrence, and(B)personal injury liability in an amount not less than$25,000,000.00,
(ii) "all-risk" ground, taxiing, and flight hull insurance on an agreed-value basis, covering the
Aircraft, provided that such insurance shall at all times be in an amount not less than the greater
of (A)the full replacement value of the Aircraft (as determined by Lessor), or (B) the unpaid
principal amount of the Equipment Schedule (each such amount re-determined as of each
anniversary of the date hereof for the next succeeding year throughout the term of the Agreement),
(iii)war risk and allied perils (including confiscation, appropriation, expropriation, terrorism and
hijacking insurance) in the amounts required above. Any policies of insurance carried in
accordance with this Section and any policies taken out in substitution or replacement or any such
policies shall (i)be amended to name each of Lessor and Lessee as an additional insured under
any liability policies, (ii)provide that any amount(s) payable thereunder shall be paid directly to
Lessor, as loss payee, (iii)provide that any cancellation, lapse or substantial change of any of the
required coverages shall not be effective until the thirtieth(30th)day following Lessor's receipt of
written notice by such insurer thereof, (iv)provide that the insurance shall not be invalidated as to
Lessor or Lessee by any action or inaction of Lessee or any other person or entity (other than
Lessor) as it relates to physical damage coverage, and regardless of any breach or violation of any
warranties, declarations or conditions contained in such policies by or binding upon Lessee or any
other person or entity(other than Lessor), (v)be primary insurance,not subject to any co-insurance
clause and without right of contribution from any other insurance, (vi)provide that all of the
provisions thereof, except the limits of liability, shall operate in the same manner as if there were
a separate policy covering each insured or loss payee, and (vii) waive any right of such insurer to
any setoff, counterclaim or other deduction, by attachment or otherwise, in respect of Lessor or
Lessee. All of the coverage required herein (the "Required Coverage") shall be in full force and
effect worldwide throughout any geographical areas to, in or over which the Aircraft is operated.
Annually on the anniversary of the date the Schedule is funded, Lessee shall furnish to Lessor an
insurance certificate evidencing that Lessee has obtained the Required Coverage. Lessee will also
advise Lessor in writing at least thirty (30) days prior to the expiration or termination date of any
of the Required Coverage.Notwithstanding the foregoing,so long as the Sheriff's Office maintains
its certification under Part 135 of the FARs, Lessee covenants to cause the Sheriff's Office to
maintain the Required Coverage hereunder or shall ensure the Required Coverage obtained and
maintained by Lessee extends to the Sheriff's Office and its operation of the Equipment.
6
68859091.v5
(g) Event of Loss. Upon the occurrence of any Event of Loss with respect to the
Airframe Lessee shall notify Lessor within five (5) days of the date thereof. Upon an Event of
Loss with respect to any Engine, Rotor Blade, or Rotor Components (a "Lost Item"), but not the
Airframe, Lessee shall give Lessor prompt written notice thereof and shall within thirty (30) days
after the occurrence of such Event of Loss, replace such item(s) consistent with the terms of the
Master Agreement with a similar or better engine, or rotor blade, or rotor components (a
"Replacement Item") of the same make and model number as the Lost Item. Such Replacement
Item shall be free and clear of all liens, have a value, utility, and useful life at least equal to, and
be in as good an operating condition as, the Lost Item, assuming such Lost Item was of the value
and utility and in the condition and repair required by the terms hereof immediately prior to the
occurrence of such Event of Loss. Lessee, at its own cost and expense, shall (i) furnish Lessor
with such documents to evidence such conveyance as Lessor shall request.Each such Replacement
Item shall, after such conveyance be deemed an "Engine", "Rotor Blade", or "Rotor
Components", as defined herein, and shall be deemed part of the Aircraft and subject to Lessor's
interest. No Event of Loss with respect to any Lost Item shall result in any reduction or delay in
the payment of payments due under the Equipment Schedule or relieve Lessee of any obligation
hereunder.
(h) Redelivery. At any time when Lessee is required by the terms of the Agreement to
deliver the Aircraft to Lessor, Lessee shall, at Lessee's expense, deliver the Aircraft to a location
within the continental United States as Lessor shall designate, and otherwise in strict compliance
with the conditions set forth in Annex B to this Addendum.
(i) Further Assurances. Lessee agrees that it shall promptly execute and deliver to
Lessor and any assignee such further instruments,UCC and FAA filings and other documents, and
take such further action, as Lessor may from time to time reasonably request in order to further
carry out the intent and purpose of the Agreement and to establish, enforce, protect and/or
effectuate an assignment of the rights, interests and remedies created, or intended to be created, in
favor of Lessor thereby.
0) Aircraft Registration. Lessee shall remain solely responsible to cause the Aircraft
to be effectively and otherwise validly registered in Lessee's name on the Registry, and without
limiting the foregoing, or any other provision of this Lease, Lessee shall:
(i) cause the Registration Certificate to be maintained within the Aircraft and
cause the then currently assigned U.S. registration number to remain on the Aircraft; including by
(A) notifying Lessor immediately of any event or circumstance with respect to which the
Registration Requirements require further action by Lessee, Lessor, the Registry or any other
governmental authority or other person, (B) immediately upon receipt, placing the original,
replacement or renewal Registration Certificate on the Aircraft prior to the expiration or other
invalidation of any previously issued Registration Certificate (whether the certificate or any other
document constituting the Registration Certificate as defined herein) under the Registration
Requirements, and(C) complying with any and all of the other Registration Requirements relating
to such Registration Certificate, and to the Registration Certificate replaced thereby(including any
of the same relating to the destruction or return thereof, as the case may be);
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68859091.v5
(ii) with respect to any Defective Registration (and without waiving Lessee's
responsibility to avoid such circumstance), at all times upon and after the operation of the Aircraft
shall no longer be authorized by the Registration Requirements, Lessee shall (A) neither operate
nor permit or suffer the operation of the Aircraft without a currently effective and otherwise valid
Registration Certificate(and shall cause the pilots to be made aware of the Defective Registration),
and otherwise comply with the FARs and other Applicable Laws relating to such Defective
Registration, (B) ground and store the Aircraft, and (C) inform the insurer or insurers, and obtain
and maintain adjustments to the insurance coverage required pursuant to this Addendum which
may be necessary or desirable to Lessor so as to reflect any changes in the insurable risks relating
to any Defective Registration; and
(iii) pay or reimburse Lessor upon its demand for all fees, charges, impositions,
penalties, fines or other similar amounts payable or incurred in connection with any of the
foregoing(whether related to the compliance or failure to comply with any of the same); and fully
and timely cooperate with Lessor so as to enable Lessor to complete and file the registration,
renewal and replacement applications, and any other filings, fees or other payments or
undertakings as and when required by the Registration Requirements, and to take any and all of
the other actions contemplated herein, as and when required by the Registration Requirements or
as otherwise requested by Lessor, including with respect to any Assignment or any other
disposition contemplated in the Agreement.
With respect to any such Defective Registration, in no event will Lessor be deemed
liable to Lessee or any other person as a result of any Defective Registration, whether by reason
of Lessor's failure to accurately complete or effectively file any such registration filing or
otherwise, and without limiting the foregoing, (i)Lessee shall remain obligated to pay and perform
all of its obligations to Lessor and (ii) Lessee agrees that it shall pay, indemnify, defend and hold
each Lessor harmless on an after-tax basis from and against any and all claims in any way relating
to or arising out of any Defective Registration.
5. Supplemental Indemnifications
(a) Taxes. In addition to those taxes and other charges noted in the Master Lease
Agreement, Lessee shall also be responsible for taxes, imposts, assessments, duties and charges
(together with any penalties, fines or interest thereon)payable with respect to manufacturing,
ordering, shipment,purchase, ownership, delivery, installation, hangaring, leasing,use, operation,
or return thereof, any Third Party Agreement, or other disposition of the Aircraft, or services
provided in connection therewith; including, for example, any custom duties, landing fees, airport
charges, navigation service charges, and route navigation charges.
(b) Expenses. In addition to any other costs and expenses for which Lessee may be
responsible under the Agreement, Lessee agrees that it shall pay to Lessor upon demand all fees,
costs and expenses incurred by or on behalf of Lessor at any time in connection with the
enforcement or other exercise of any of Lessor's rights and remedies under or with respect to this
Addendum such as, without limitation, appraisal and inspection fees, the fees and expenses of
Aviation Counsel, consultants and brokers, UCC, FAA, and other applicable title and Lien
searches, and costs and expenses relating to recovery,repossession, hangaring, storage, insurance,
transportation, repair, refurbishment, advertising, sale and other dispositions of the Aircraft.
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68859091.v5
6. Supplemental Restrictions.
(a) No Dispositions. In supplement to the Master Lease Agreement Lessee shall not
install the Engine, Rotor Blade, Rotor Components, or Part, or permit the same to be installed, on
any aircraft other than the Aircraft.
7. Supplemental Defaults and Remedies.
(a) Events of Default. In addition to Events of Default listed in Section 12.01 of the
Master Lease Agreement, the occurrence of any of the following shall constitute an immediate
Event of Default: (i) the Aircraft is operated in a manner, at a time or in or over or located at a
place with respect to which Required Coverage shall not be in effect; (ii) Lessee shall breach any
representation, warranty or agreement in this Addendum requiring compliance with Applicable
Law; or(iii) Lessee fails to comply with Section 3(b) hereof.
(b) Additional Remedies. If an Event of Default occurs, in addition to all other rights
and remedies granted to it in the Agreement,Lessor may exercise any one or more of the following
remedies with respect to the Aircraft(including, the Airframe and any or all of the Engine, Rotor
Blade and Rotor Components, Parts, Records or other property constituting the Aircraft, whether
or not then attached to or on board the Airframe):
(i) (A)terminate the right of any third parry to use, possess or control the
Aircraft, including under any Third Parry Agreement, without regard as to the existence of any
event of default thereunder, (B) recover from, and/or cause Lessee and any such third parry, to
relinquish possession and return the Aircraft and/or (C) exercise any and all other remedies in
Lessee's stead, to the extent provided for under, or otherwise available to Lessee in connection
with the related Third Parry Agreement;
(ii) (A) demand from any court speedy relief pending final determination
available at law (including, possession, control, custody or immobilization of the Aircraft, or
preservation of the Aircraft and its respective value), and/or(B)procure the deregistration and/or
export and physical transfer of the Aircraft from the territory in which it is then situated.
8. Definitions. Any terms defined elsewhere in this Addendum, together with the following
defined terms, shall pertain to this Addendum (and as incorporated therein,the Agreement):
Aircraft shall mean (i)the Airframe, (ii)the Engines, (iii)the Rotor Blade, and
Rotor Components and (iv)the Records, and all accessories, additions, accessions, alterations,
modifications,Parts,repairs and attachments now or hereafter affixed thereto or used in connection
therewith, and all Permitted Replacements and all other replacements, substitutions and exchanges
(including trade-ins) for any of the foregoing.
Airframe shall mean (i) the Aircraft described in Annex A hereto, but solely for
the purposes of this definition, shall not include the Engine, Rotor Blade, and Rotor Components,
and(ii) any and all related Parts.
Applicable Law shall mean (in addition to any of the same contemplated in the
Agreement) all applicable laws, statutes, treaties, conventions, judgments, decrees, injunctions,
9
68859091.v5
writs and orders of any court, governmental agency or authority and rules, regulations, orders,
directives, licenses and permits of any governmental body, instrumentality, agency or authority as
amended and revised, and any judicial or administrative interpretation of any of the same,
including (a) any of the same whether domestic, foreign, national, local or international, relating
to, among other things, (i) Lessor, Lessee, or any other pertinent person or entity, (ii) the Aircraft
(including the Engine, Rotor Blade, Rotor Components or Part), including as to its use, operation,
piloting, outfitting, service,maintenance or repair, or any transportation or other services provided
in connection therewith, or(iv)without limiting any of the foregoing,relating to (a)taxes or other
impositions, noise, the environment (including any substances in, on or emitted from any of the
same), national security, public safety, insurance, exports or imports or contraband, and/or (b)
without limiting the foregoing,the Cape Town Convention,the UCC,the Transportation Code, all
FARs,the airworthiness certificate issued with respect to the Aircraft, all applicable airworthiness
directives issued by the FAA or similar regulatory agency having jurisdictional authority.
Applicable Standards shall mean (i) Applicable Law, (ii) the requirements of the
insurance policies required hereunder, (iii) any mandatory accreditation requirements pertinent to
the operation of the Aircraft, and (iv), with respect to the Aircraft(including, by way of example,
the Airframe or the Engine, Rotor Blade, Rotor Components, Component or Part), all compliance
requirements set forth in or under (A) all maintenance manuals initially furnished with respect
thereto, including any subsequent amendments or supplements to such manuals issued by the
manufacturer or supplier thereof from time to time, (B) all mandatory service bulletins issued,
supplied, or available by or through the applicable manufacturer with respect thereto, (C) all
conditions to the enforcement of any warranties pertaining thereto, (D) Lessee's FAA approved
maintenance program with respect thereto, if any.
Aviation Counsel shall mean Daugherty Fowler Peregrin Haught & Jenson of
Oklahoma City, OK or such counsel as Lessor may designate from time to time.
Defective Registration means any failure to cause the Aircraft to be effectively
registered with the Registry in the name of Lessee in accordance with the applicable Registration
Requirements,for any reason whatsoever, including should such registration be revoked, canceled
or expired or otherwise deemed to have ended or been invalidated pursuant to the Registration
Requirements.
Engine shall mean (i) the engine described in Annex A hereto, whether or not
hereafter installed on the Aircraft or any other aircraft from time to time; (ii) any engine that may
from time to time be substituted for the Engine constituting a Replacement Item; and(iii) any and
all related Parts.
Engine Maintenance Program shall mean the Engine manufacturer's Engine
maintenance program to the extent covered by any applicable warranty, and thereafter, either the
Engine manufacturer's service program or an agreement, in form and substance reasonably
satisfactory to Lessor entered into from time to time between Lessee and such vendor as Lessee
may designate and as may be reasonably satisfactory to Lessor, which provides for the
maintenance and/or overhaul of the Engine consistent with the Engine manufacturer's service
program.
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68859091.v5
Event of Loss shall mean (in addition to any of the same contemplated in the
Agreement) any of the following events with respect to the Aircraft (or, by way of example, the
Airframe, the Engine, Rotor Blade, or Rotor Components): (a) loss of such property or the use
thereof due to theft, disappearance, destruction, damage beyond repair or resulting in an insurance
settlement on the basis of a total or constructive total loss; (b) any taking of title to or use or
possession of, such property by the act of any governmental authority (foreign or domestic); (c) as
a result of any Applicable Law or other action by any governmental authority (foreign or
domestic),including the FAA,the use of such property shall have been prohibited,or such property
shall have been declared unfit for use, for a period of six (6) consecutive months; (d)with respect
to the Engine, Rotor Blade or Rotor Components, the removal thereof from the Airframe for a
period of six (6)months or longer; or(e) such property shall be returned to the manufacturer other
than for repair, replacement or maintenance. An Event of Loss with respect to the Aircraft shall
be deemed to have occurred if an Event of Loss occurs with respect to the Airframe. An Event of
Loss with respect to the Engine, Rotor Blade, or Rotor Components shall not, without loss of the
Airframe, be deemed an Event of Loss with respect to the Aircraft.
FAA shall mean the United States Federal Aviation Administration and/or the
Administrator of the Federal Aviation Administration and the Department of Transportation, or
any person or entity, governmental department, bureau, authority, commission or agency
succeeding the functions of any of the foregoing, including, where applicable, the TSA.
FARs shall mean the Federal Aviation Regulations and any Special Federal
Aviation Regulations (Title 14 C.F.R. Part 1 et seq.), together with all successor regulations
thereto.
Liens shall mean (in addition to any of the same contemplated in the Agreement)
all liens, charges, security interests, leaseholds, and encumbrances of every nature and description
whatever, including any rights of third parties under Third Party Agreements.
Maintenance Program shall mean the manufacturer's Airframe and transmission
maintenance program to the extent covered by any applicable warranty, and thereafter, either the
manufacturer's service program or an agreement, in form and substance reasonably satisfactory to
Lessor entered into from time to time between Lessee and such vendor as Lessee may designate
and as may be reasonably satisfactory to Lessor, which provides for the maintenance and/or
overhaul of the Airframe and transmission consistent with the manufacturer's service program.
Parts shall mean all appliances, avionics, parts, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than the complete Engine,
Rotor Blade, or Rotor Components)that may from time to time be incorporated or installed in or
attached to the Airframe, the Engine Rotor Blade, or Rotor Components, and any and all such
appliances,avionics,parts,rotor components, instruments, appurtenances, accessories,furnishings
and other equipment removed therefrom so long as the same have not been released from the
Lessor's lien pursuant to the applicable terms of the Agreement, and all Replacement Items or any
of the same.
Primary Hangar Location shall mean the location identified as such on Annex A
hereto.
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68859091.v5
Proceeds shall mean (in addition to any of the same contemplated in the
Agreement) all of Lessee's rights in and to any of the foregoing, and any and all rents, payments,
charter hire and other amounts of any kind whatsoever due or payable under or in connection with
the Aircraft, including, (a) any and all proceeds of any insurance, indemnity,warranty or guaranty
payable to Lessee from time to time, (b) any and all payments (in any form whatsoever) made or
due and payable to Lessee from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture by any governmental body, authority,bureau or agency or any
other person or entity (whether or not acting under color of governmental authority), and (c) any
and all other rents or profits or other amounts from time to time paid or payable.
Records shall mean any and all logs, manuals, certificates and data and inspection,
modification, maintenance, engineering, technical, and overhaul records (whether in written or
electronic form)with respect to the Aircraft (including, by way of example, the Airframe, the
Engine, Rotor Blade, Rotor Components, or Part), including any and all of the same (a)required
to be maintained by the FAA or any other governmental agency or authority having jurisdiction,
or by any manufacturer or supplier with respect to the enforcement of warranties or otherwise,
(b) evidencing Lessee's compliance with Applicable Standards, and (c)with respect to any
maintenance service program.
Registration Certificate means a currently effective Certificate of Aircraft
Registration, AC Form 8050-3, or any other certificate issued to Lessor evidencing the currently
effective registration of the Aircraft in its name, in connection with the operation of the Aircraft in
the United States pursuant to the Registration Requirements, or any other document as may then
be required to be maintained within the Aircraft by such Registration Requirements, either together
with or in lieu of such certificate.
Registration Requirements means the requirements for registering aircraft with
the Registry under 49 U.S.C. 44101-44104, and 14 C.F.R. § 47 as then in effect, any successor
laws, rules or regulations pertaining to applicants for and holders of a Registration Certificate, the
U.S. registration number for the Aircraft, and any such other FARs and other Applicable Laws, in
each case as and to the extent pertaining to the registration of Lessor's ownership of the Aircraft
with the Registry, including any renewal of such registration, or replacement of any such
Registration Certificate.
Re2istry means the FAA Civil Aviation Registry, Aircraft Registration Branch, or
any successor registry having an essentially similar purpose pertinent to the ownership registration
of the Aircraft pursuant to the Registration Requirements.
Rotor Blade shall mean (i) each of the rotor blades described and listed by
manufacturer's serial numbers in Annex A hereto,whether or not hereafter installed on the Aircraft
or any other aircraft from time to time; (ii)any rotor blade that may from time to time be substituted
for the Rotor Blade constituting a Replacement item; and (iii) any and all related Parts.
Rotor Component shall mean(i)each of the rotor gear boxes,tail rotor gear boxes,
combined gearboxes, transmissions, servos, main and tail rotor head components and other rotor
components described and listed by manufacturer's serial numbers in Annex A hereto, whether or
not hereafter installed on the Aircraft or any other aircraft from time to time; (ii) any rotor blade
12
68859091.v5
that may from time to time be substituted for the Rotor Component constituting a Replacement
item; and (iii) any and all related Parts.
Third Party Agreements shall mean (other than the Financing Documents) any
and all leases, subleases, interchange agreements, charter agreements, pooling agreements,
timeshare agreements and any other similar agreements or arrangements of any kind whatsoever
relating to the Aircraft(or by way of example, the Airframe or Engine).
Transportation Code shall mean Subtitle VII of Title 49 of the United States
Code, as amended and recodified.
TSA shall mean the Transportation Security Administration and/or the
Administrator of the TSA, or any person or entity, governmental department, bureau, authority,
commission or agency succeeding the functions of any of the foregoing.
9. Truth in Leasing. TO THE BEST OF THEIR KNOWLEDGE, LESSEE HEREBY
CERTIFIES AS FOLLOWS:
(A) DURING THE TWELVE MONTHS (OR PORTION THEREOF DURING
WHICH THE AIRCRAFT HAS BEEN SUBJECT TO UNITED STATES REGISTRATION, IF
ANY)PRECEDING THE EXECUTION OF THE AGREEMENT THE AIRCRAFT HAS BEEN
MAINTAINED AND INSPECTED UNDER PART 91 OR PART 135 (AS APPLICABLE) OF
THE FEDERAL AVIATION REGULATIONS. THE AIRCRAFT IS IN COMPLIANCE WITH
APPLICABLE MAINTENANCE AND INSPECTION REQUIREMENTS UNDER THE
FEDERAL AVIATION REGULATIONS FOR THE OPERATION OF THE AIRCRAFT TO BE
CONDUCTED UNDER THE ADDENDUM.
(B) THE NAME AND ADDRESS OF THE PERSON RESPONSIBLE FOR
OPERATION CONTROL OF THE AIRCRAFT UNDER THE AGREEMENT:
NAME: Richard Good
ADDRESS: 10100 Overseas Hwy, Marathon, FL 33040
In the event Lessee obtains operational control of the Aircraft pursuant to Section
3(b) hereof, Lessee shall immediately notify Lessor of such change and provide an updated name
and address.
BY SIGNATURE BELOW, LESSEE CERTIFIES THAT IT UNDERSTANDS
ITS RESPONSIBILITIES FOR COMPLIANCE WITH ALL OF THE APPLICABLE FEDERAL
AVIATION REGULATIONS.
AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL
CONTROL AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE OBTAINED
FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE, GENERAL
AVIATION DISTRICT OFFICE, OR AIR CARRIER DISTRICT OFFICE.
[Signatures on Next Page]
13
68859091.v5
Ili WITNESS WHEREOF,the parties by their duly authorized officers have executed this
ADDENDUM RELATING TO AIRCRAFT as of the date and year first above written.
Monroe County, Florida
as Lessee
By:
Name: Cram es
Title: Mayor of the Board of County
Commissioners of Monroe
County
Banc of America Public Capital! Corp,
as Lessor
By:
Marne:
.___-_...-. ....-. ..........�.... ------
Title: _.._ .�m ..........................................
PB � J.
ASSIST. 1T S
[Signature Page �Aircrafl Addendum]
68859091.v3
IN WITH WHEREOF,the parties by their duly authorized officers have executed this
ADDENDUM RELATING TO AIRCRAFT as of the date and year first above written.
Monroe County, Florida
as Lessee
By:
Name: Craig Cates
Title. Mayor of the Board of County
Commissioner's of Monroe
County
Banc of America Public Capital Corp,
as Lessor
ti
By:
Name: AiduStille Rpirhi5nhach
Title: Authabzed Agent,
[Signature Page (Aircraft Addendum]
EXHIBIT I
Form of Property Access Agreement for Key West HMA, LLC
PROPERTY ACCESS AGREEMENT
This PROPERTY ACCESS AGREEMENT (the "Agreement"), dated as of May 19,
2023 and entered into by and among BANC OF AMERICA PUBLIC CAPITAL CORP, a Kansas
corporation (together with its successors, assigns and transferees, and as more particularly
defined herein, "Lender"), MONROE COUNTY, FLORIDA (the "Lessee") and KEY WEST HMA,
LLC, a Florida limited liability company ("Key West HMA") relating to that certain Master
Equipment Lease Purchase Agreement dated May 19, 2023, by and between Lender and Lessee
(the "Master Lease Agreement").
RECITALS
WHEREAS, Lessee desires to lease and acquire from Lender three (3)Aircraft(including,
the Airframe, and whether or not then attached, the Engine, Rotor Blade and Rotor Components,
and Parts for each Aircraft, collectively, the "Equipment") described in that certain Equipment
Schedule No. 1 dated May 19, 2023 (the "Equipment Schedule");
WHEREAS, Lessee will lease the Equipment to the Monroe County Sheriff's Office (the
"Sheriff's Office") to operate the Aircraft as essential governmental use equipment as described
in Section 2.01(e) of the Master Lease Agreement;
WHEREAS, pursuant to that certain Lease Agreement by and between Key West HMA,
LLC,a Florida limited liability company("Key West HMA"),as landlord,and the Sheriff's Office,
as tenant, dated March 4, 2020 (the "Hangar Lease"), Key West HMA will lease certain real
property located at 5900 College Road,Key West,Florida 33040 and further described on Exhibit
A hereto (the "Real Property") to the Sheriff's Office to be use at the primary hangar
location of one of the Aircraft(the "Lower Keys Aircraft");
WHEREAS, under the Master Lease Agreement, Lessee is required to take all necessary
steps to provide for the entry of Lender onto the Real Property for the purpose of exercising
Lender's rights with respect to the Lower Keys Aircraft, as further described therein;
WHEREAS, Lessee is authorized under the constitution and laws of the State of Florida to
enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt and sufficiency of
which are hereby acknowledged, and in consideration of the premises hereinafter contained, the
parties hereby agree as follows:
Section 1. Entry by Lender. Upon an Event of Default (as defined in the Master Lease
Agreement) or an event of non-appropriation under the Master Equipment Lease Purchase
Agreement whereby the County has agreed to return the Lower Keys Aircraft to the Lender, the
Key West HMA and Lessee acknowledge and agree that the Lender shall be permitted access to
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6885909I.v5
the Real Property (and any structures located thereon)for the purpose of removing the Lower Keys
Aircraft and exercising its rights under the Master Lease Agreement. Nothing in this paragraph
shall require to Lender to remove the Aircraft or other property from the Real Property.
Section 2. Jurisdiction. This Agreement is governed by and shall be construed in
accordance with the laws of the State of Florida.
[Signature Pages to Follow]
E-2
68859091.v5
LESSOR: LESSEE:
Banc of America Public Capital Corp Monroe County, Florida
11333 McCormick Road 1100 Simonton Street, Suite 2-213
Hunt Valley 11 Key West, Florida 33040
M/C MD5-032-07-05 Attention: County Administrator
Hunt Valley, MD 21031 Fax No.:(305) 292-4515
Attention: Contract Administration
Fax No.: (443) 541-3057
By: By:
Name: Name: Craig Cates
Title: Title: Mayor of the Board of County
Commissioners of Monroe County
LANDLORD:
Key West HMA, LLC
5900 College Road, Key West, FL 33040
By:
Name:
Title:
E-3
68859091.v5
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
[See Attached]
E-4
68859091.v5
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Annex A
AIRCRAFT DESCRIPTION and PRIMARY HANGAR LOCATION
This Annex A is attached to and a part of the ADDENDUM RELATING TO AIRCRAFT (the
"Addendum") dated as of May 19, 2023 among Banc of America Public Capital Corp
("Lessor") and Monroe County, Florida("Lessee") for the purposes contemplated therein.
1. AIRCRAFT DESCRIPTION: The Aircraft is consists of the following components:
Airframe Make/Model: Leonardo AW139
Year:
Airframe Serial No.:
U.S. Identification No.:
Engine: Two (2)Pratt& Whitney Canada PT6C engines
Main Rotor Assembly:
Main Rotor Gear Box:
Main Rotor Blades:
1. Serial No.:
2. Serial No.:
3. Serial No.:
4. Serial No.:
5. Serial No.:
Tail Rotor Assembly: Manufacturer:
1. Serial No.:
Tail Rotor Gear Box:
Tail Rotor Blade:
1. Serial No.:
2. Serial No.:
3. Serial No.:
Serial No.:
Airframe Make/Model: Leonardo AW139
Year:
Airframe Serial No.:
U.S. Identification No.:
Engine: Two (2)Pratt& Whitney Canada PT6C engines
Main Rotor Assembly:
Main Rotor Gear Box:
Main Rotor Blades:
1. Serial No.:
2. Serial No.:
3. Serial No.:
4. Serial No.:
5. Serial No.:
Tail Rotor Assembly: Manufacturer:
E-5
68859091.v5
I. Serial No.:
Tail Rotor Gear Box:
Tail Rotor Blade:
1. Serial No.:
2. Serial No.:
3. Serial No.:
4. Serial No.:
Airframe Make/Model: Leonardo AW139
Year:
Airframe Serial No.:
U.S. Identification No.:
Engine: Two (2)Pratt& Whitney Canada PT6C engines
Main Rotor Assembly:
Main Rotor Gear Box:
Main Rotor Blades:
1. Serial No.:
2. Serial No.:
3. Serial No.:
4. Serial No.:
5. Serial No.:
Tail Rotor Assembly: Manufacturer:
1. Serial No.:
Tail Rotor Gear Box:
Tail Rotor Blade:
1. Serial No.:
2. Serial No.:
3. Serial No.:
Serial No.:
1. Standard avionics and equipment, all other accessories, additions, modifications and
attachments to, and all replacement and substitutions for, any of the foregoing, all as more
particularly described below(and if purchased pursuant to the related purchase documents, are
on board the Aircraft and in proper working condition):
See attachment A hereto with listing of AW139 avionics.
together with all additions, accessions, modifications, improvements, replacements, substitutions,
and accessories thereto and therefore, all avionics, onboard equipment, loose equipment, manuals,
documentation and technical publications, now owned or hereafter acquired, and all records and
logbooks (in written form or as computer data, discs or tapes, whether now existing or hereafter
acquired or created, and whether in the possession of Lessee or held on behalf of Lessee by others).
None of the same were furnished by Lessee, unless expressly disclosed to Lessor.
2. PRIMARY HANGAR LOCATION: The Primary Hangar Location of the Aircraft is
and shall be as follows:
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68859091.v5
Monroe County Sheriff's Office Aviation Hangar
5900 College Road
Key West, Florida 33040
Monroe County Sheriff's Office Aviation Hangar
10100 Overseas Highway
Marathon, Florida 33040
Key West HMA, LLC
5900 College Road
Key West, FL 33040
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68859091.v5
ATTACHMENT A TO ANNEX A
(AW139 Avionics)
■ Honeywell Primus Epic Phase 7 Avionic System
■ Pilot Primary Flight Display (PFD)
External Dimensions: 8" X 10". Colour Active Matrix Liquid Crystal Display
(AMLCD)
■ Co-Pilot Primary Flight Display (PFD)
External Dimensions: 8" X 10". Colour Active Matrix Liquid Crystal Display
(AMLCD)
■ Pilot Multi-Function Display (MFD)
External Dimensions: 8" X 10". Colour Active Matrix Liquid Crystal Display
(AMLCD)
■ Co-Pilot Multi-Function Display (MFD)
External Dimensions: 8" X 10". Colour Active Matrix Liquid Crystal Display
(AMLCD)
■ Electronic Standby Instrument System (ESIS)
Displaying Attitude, Airspeed, Altitude, Vertical Speed, Compass and ILS Data
■ Attitude and Heading Reference System (AHRS) (Qty. 2)
■ Air Data Module (ADM) (Qty. 2)
■ Flux Valve (Qty. 2)
■ Display Controller(DC) (Qty. 2)
■ Cursor Control Device (CCD) (Qty. 2)
■ Reversion Control Panel (RCP)
■ Display Dimming Control Panel (DCP)
■ Stability Augmentation System (SAS) Control Panel
■ Remote Instrument Controller(RIC) (Qty. 2)
■ Modular Avionic Unit (MAU) (Qty. 2), including the following major subsystems
and/or functions:
■ Dual Vehicle Monitoring System (VMS)
■ Dual Monitor Warning System (MWS)
■ Single Aural Warning Generator(AWG)
■ Single Central Maintenance Computer(CMC)
■ Provision for CVR/FDR Data Interface
■ Pilot and Co-Pilot Interphone Control
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68859091.v5
Cyclic Grip and Floor Switches
■ Left Modular Radio Cabinet(MRC), including:
■ VHF Radio
■ VOR/LOC/GS/MB
■ Right Modular Radio Cabinet(MRC), including:
■ VHF Radio
■ VOR/LOC/GS/MB
■ ADF
■ DME
■ Pedestal Mounted Multifunction Control Display Unit(MCDU) (Qty. 2)
■ Emergency Locator Transmitter(ELT)
■ Flight Guidance Controller
■ Pilot and Co-Pilot Digital Audio Panels
Including Remote ICS Audio Plug for Ground Operations
■ Pilot Digital Clock
■ Co-Pilot Digital Clock
■ Magnetic Compass
■ Outside Air Temperature (OAT) Indicator
■ Master Warning Light(MWL) (Qty. 2)
■ Master Caution Light(MCL) (Qty. 2)
■ Engine 1 Fire Light
■ Engine 2 Fire Light
■ Baggage Compartment Smoke Detector Light
■ Dual Electrical Power Connection for CVR/FDR
Compliant to the Federal Aviation Administration (FAA)Requirement
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68859091.v5
ANNEX B
Banc of America Public Capital Corp Aircraft Addendum Ancillary Provisions
Return. In addition to any return conditions contained in the Master Lease Agreement, Lessee
agrees that it shall further meet the following conditions with respect to the Aircraft:
1. General: Upon an Event of Default and Lessor's demand that Lessee return the Aircraft in
accordance with the Agreement, Lessee shall deliver possession and return the Aircraft to Lessor
with (i) the Records and other documentation listed on Exhibit A hereto and (ii) all inspections,
modifications and overhaul records applicable to the Aircraft. Until the Aircraft is returned to
Lessor, all of the provisions of the Agreement shall remain in full force and effect. Lessee shall
pay all the cost and expenses in connection with or incidental to the return of the Aircraft,
including, without limitation, the cost of preparing, insuring and transporting the Aircraft.
2. Return Conditions and TBO:
a. Return Condition. The Aircraft shall be clean by prudent operating standards followed
by other similarly situated operators, all decals, numbers and other Lessee identification shall be
removed from the Aircraft by Lessee in a good and workmanlike manner without damage to the
Aircraft at Lessee's expense,and the Aircraft shall meet the conditions set forth in Section 4 herein.
Lessee shall, upon request, assign to Lessor its rights under any manufacturer's maintenance
service contract or extended warranty for the Aircraft(including,by way of example,the Airframe,
the Engine, Rotor Blade, Rotor Components or Part thereof).
b. Time Between Overhauls ("TBO"). Upon return, the Aircraft (including, by way of
example,the Airframe, Engine, Rotor Blade, Rotor Components, or other Part thereof), shall have
one half(50%) or more of the available operating hours before overhaul, as applicable, and/or one
half or more of the stated calendar time and cycles remaining before overhaul as stated in the
applicable FARs. Subject to Section 2(e) hereof, in the event that the Aircraft does not meet the
above conditions with respect to the Airframe, the Engine, Rotor Blade, Rotor Components, or
other Part thereof, then Lessee shall pay the dollar amount per hour for each hour by which the
time relating to such non-complying item shall exceed one half(50%) of allowable time between
overhaul. This dollar amount will be an amount equal to the pro rata share of overhaul or
replacement by which the use exceeds one half(50%) of the TBO for that item and based on the
then anticipated cost of overhaul or replacement as determined by an estimate from an FAA
authorized repair facility which is mutually acceptable to both Lessor and Lessee.
c. Servicing and Repair: If, upon return, the Aircraft requires repair work which could
not reasonably be deemed to have resulted from ordinary wear and tear, or if the Aircraft shall not
have been serviced in accordance with manufacturer's specifications, then Lessee shall reimburse
Lessor for the cost of such repairs and servicing. The determination and cost of such repair and
servicing shall be made by a mutually acceptable FAA certified mechanic and/or repair facility.
In the event of a difference of opinion between Lessor and Lessee, the manufacturer's judgment
shall be binding.
d. Inspection Costs: Lessor shall arrange for the inspection of the Aircraft when returned
to determine if the Aircraft has been maintained and returned in accordance with the provisions of
68859091.v5
the Agreement (including as modified by the Addendum and this Annex). Lessee shall be
responsible for the cost of such inspection and shall pay Lessor such amount within ten (10) days
of demand. Lessee shall also pay Lessor a pro rata cost of the next regularly scheduled Aircraft
inspection which shall be determined by dividing the number of hours since the last inspection by
the total hours between inspections times the cost of the inspection.
e. Maintenance Contracts: Lessee need not compensate Lessor as contemplated in Section
2(b) above, if at the time of the return of the Aircraft:
i. Each of the Engines are covered by a service and maintenance contract in form and
substance satisfactory to Lessor which provides for the maintenance and/or
overhaul of such property; and
ii. Adequate reserves for future required maintenance and/or overhaul shall have been
provided for pursuant to such maintenance contract, or all amounts due and payable
pursuant to such maintenance contract shall have been paid in full through the date
of return; and
iii. The entity that provides for the maintenance and/or overhaul services under such
maintenance contract shall either (a) recognize the transfer by Lessee to Lessor of
the rights and interests of Lessor under such maintenance contract, or (b)
acknowledge the rights and interests of Lessor (or its designee) under such
maintenance contract.
3. Return Location: Lessee at its expense will return the Aircraft to Lessor to such airport within
the continental United States as Lessor shall reasonably designate in writing.
4. General Condition of Aircraft at Return:
a. The Aircraft will possess a valid current FAA -Certificate of Airworthiness.
b. The Aircraft (including, by way of example, the Records) will have been maintained
and repaired in accordance with Lessee's Maintenance Program and Engine Maintenance
Program, all Applicable Laws and any other requirements of the Agreement.
c. The Aircraft will be airworthy and ready for flight.
d. The Aircraft will be in the same working order and condition as at delivery (reasonable
wear and tear from normal flight operations excepted), with all pilot discrepancies and deferred
maintenance items cleared on a terminating action basis. All equipment, components and systems
will be operating in accordance with their intended use and within limits approved by each
manufacturer and all Applicable Laws.
e. The Aircraft will be returned with the Engine, Rotor Blade, Rotor Components, and
Parts installed and with the same equipment as at delivery, subject only to those replacements,
additions and modifications permitted hereunder.
68859091.v5
f. All airworthiness directives and other instructions of the FAA requiring compliance
prior to return of the Aircraft to Lessor will have been performed on the Aircraft on a terminating
action basis. Any airworthiness directives of the FAA which must be completed within one
hundred eighty (180) days after the return date must also be performed on a terminating action
basis by Lessee at Lessee's cost unless, after using best efforts, Lessee is unable to acquire the
material, parts or components necessary to accomplish such airworthiness directive or such
compliance is waived by Lessor in writing.
g. If any waivers, dispensations or extensions are granted by the FAA with respect to any
airworthiness directives or operating or maintenance requirements or the maintenance program
permits the carryover or deferral of such items,Lessee at its sole cost and expense will nonetheless
perform such airworthiness directives and other operating or maintenance requirements prior to
the Aircraft's return, on a terminating action basis as if such waivers, dispensations or extensions
did not exist.
h. The Aircraft will be free from any liens except those created by or through Lessor and
no circumstances will have so arisen whereby the Aircraft is or could become subject to any lien
or right of detention or sale in favor of any airport or any other authority whatsoever.
i. All vendors and manufacturer's service bulletin kits received by Lessee for the Aircraft
but not installed thereon will be on board the Aircraft as cargo.
j. The fuel tank and oil tank will be at least 50% full.
5. Indemnities and Insurance: The indemnities and insurance requirements set forth in the
Agreement (including as modified by this Addendum) will apply during return of the Aircraft,
including the ground inspection.
6. Airport and Navigation Charges: Lessee will ensure that at return of the Aircraft any and all
airport, navigation and other charges which will give rise or may if unpaid give rise to any lien,
right of detention, right of sale or other lien in relation to the Aircraft, whether incurred in respect
of the Aircraft or any other Aircraft or aircraft operated by Lessee, have been paid and discharged
in full (whether or not due) and will at Lessor's request produce evidence thereof satisfactory to
Lessor.
68859091.v5
EXHIBIT A TO ANNEX B
Aircraft Documentation and Other Records
The following Records are to be returned with the Aircraft in a current up-to-date and correct
status:
MANUALS:
AIRCRAFT RECORDS AND HISTORICAL DOCUMENTS
1. Aircraft log book(current and file copies).
2. Aircraft readiness log.
3. Maintenance Time Control Report(components, maintenance visit, special item next due
Airframe hours and cycles).
4. Aircraft previous maintenance visit record including the last inspection performed.
5. Airworthiness Directive Compliance Summary.
6. Rigging Document.
7. Serviceable Tags for all ratable components installed (Airframe and Engines).
8. Airworthiness Directives requiring continuous surveillance.
9. Service Bulletins terminated accomplishment status.
10. Service Bulletins requiring continuous surveillance summary and maintenance control
action.
11. Airframe, Component and Engine history records.
12. FAA Form 337 for Airframe, repair/overhaul certification of last major visit.
13. FAA Form 337 for Engine, repair/overhaul certification of last shop visit.
14. Engine readiness Log for the Engine.
15. Engine readiness Log for the Engine (components installed).
16. Summary of Service Bulletin's accomplished for the Engine.
17. Summary of Airworthiness Directives accomplished for the Engine.
68859091.v5
18. Service Bulletins and Airworthiness directives status requiring continuous surveillance
with maintenance, control action for the Engine.
19. Engine Time summary sheet including life limited items for the Engine.
20. Engine Log Books for the Engine (current and file copies).
68859091.v5
FIRST AMENDMENT To ADDENDUM RELATING To AIRCRAFT
This FIRST AMENDMENT TO ADDENDUM RELATING TO AIRCRAFT (the
"First Amendment") is made and entered into as of June 27, 2023, by and between Banc of
America Public Capital Corp, a Kansas corporation (together with its successors, assigns, and
transferees, "Lessor")and Monroe County,Florida, a political subdivision of the State of Florida
("Lessee" and together with Lessor,the "Parties").
WITNESSETH:
WHEREAS, in order to finance three (3) Aircraft (collectively, the "Equipment"), Lessor
and Lessee entered into the certain Addendum Relating to Aircraft(the "Addendum")pursuant to
and as part of that certain Equipment Schedule No. 1 thereto (the "Equipment Schedule") entered
into pursuant to that certain Master Equipment Lease/Purchase Agreement, each dated May 19,
2023,(the"Master Lease Agreement"and,together with Equipment Schedule No. 1,and including
all related attachments, supplements and amendments,the "Agreement");
WHEREAS, Lessee will lease the Equipment to the Monroe County Sheriff's Office (the
"Sheriff's Office")to operate the Equipment as essential governmental use equipment as described
in Section 2.01(e) of the Master Lease Agreement;
WHEREAS, pursuant to that certain Lease Agreement by and between Key West HMA,
LLC,a Florida limited liability company("Key West HMA"),as landlord,and the Sheriff's Office,
as tenant, dated March 4, 2020 (the "Hangar Lease"), Key West HMA will lease certain real
property located at 5900 College Road, Key West, Florida 33040 (the "Lease Property") to the
Sheriff's Office to be use at the primary hangar location of one of the Aircraft(the "Lower Keys
Aircraft");
WHEREAS,pursuant to Section 2.01(k) of the Master Lease Agreement and as described in
the Equipment Schedule No. 1, Lessee covenanted that it would enter into a form of Property
Access Agreement (the "Property Access Agreement"), granting Lessor entry onto the Leased
Property for the purpose of exercising Lender's rights with respect to the Equipment;
WHEREAS,in lieu of the Property Access Agreement, Lessee agrees to deliver the Lower
Keys Aircraft to a separate location described herein;
WHEREAS, the Parties now desire to amend and restate the Agreement as set forth herein;
Now,THEREFORE, for good and valuable consideration, receipt and sufficiency of which
are hereby acknowledged, and in consideration of the premises hereinafter contained, the parties
hereby agree as follows:
Section 1.Access to the Lower Keys Aircraft.The primary hangar location for the Lower
Keys Aircraft will be 5900 College Road, Key West, Florida 33040 ("Lower Keys Hangar
Location"),which is owned by Key West HMA and leased to the Sheriff's Office"pursuant to the
Hangar Lease,dated March 4,2020 between Key West HMA,as landlord,and the Sheriff's Office,
as tenant.
69468624.v 1
Upon reasonable demand by Lessor, Lessee agrees to deliver the Lower Keys Aircraft to
the primary hangar location located at 10100 Overseas Highway, Marathon, Florida 33040, for
inspection by the Lessor pursuant to Section 2.01(k) of the Master Lease Agreement or delivery
to Lessor pursuant to Section 12.02(b) of the Master Lease Agreement. The form of Property
Access Agreement attached to the Addendum as Exhibit I and all references to the Property Access
Agreement within the Addendum, Equipment Schedule No. 1 or any other incidental documents
are void.
Section 2. Conditions Precedent. The Supplemental Condition Precedent in Section
2(b)(vi) of the Addendum is hereby stricken and deleted in its entirety.
Section 3. Acknowledgement and Effective Date. The signatures of the Lessor and
Lessee are conclusive evidence of acceptance. The effective date of this First Amendment is the
date first written above.
69468624.v 1
IN WI SS WHEREOF,the parties by their duly authorized officers have executed this
FIRST AMENDMENT TO ADDENDUM RELATING TO AIRCRAFT as of the date and
year first above written.
Monroe County, Florida
as Lessee
Y®
Name:
Title: ej)a A V
Banc of America Public Capital Corp,
as Lessor
By:
Name:
Title:
69468624.v I
IN WTI NE WHEREOF,EREOF,the parties by their duly authorized officers have executed this
FIRST AMENDMENT TO ADDENDUM RELATING TO AIRCRAFT as of the date and
year first above written.
Monroe County, Florida
as Lessee
By:
Name:
Title:
Banc of America Public Capital Corp,
as Lessor
By:
Name: WA/
4'WeR&Wbach
Titl orized Aq
e: h
69468624.v4
ESCROW AGREEMENT
This ESCRow AGREEMENT (this "Agreement"), dated as of May 19, 2023, by and among
BANC OF AMERICA PUBLIC CAPITAL CORP, a Kansas corporation (together with its successors and
assigns, hereinafter referred to as "Lessor"), MONROE COUNTY,FLORIDA, a political subdivision
existing under the laws of the State of Florida(hereinafter referred to as "Lessee")and TMI TRUST
COMPANY, a Florida trust company (hereinafter referred to as "Escrow Agent").
Reference is made to that certain Equipment Schedule No. 1,dated May 19,2023 to Master
Equipment Lease/Purchase Agreement dated as of May 19, 2023, between Lessor and Lessee
(hereinafter referred to as the "Lease"), covering the acquisition and lease of certain Equipment
described therein(the "Equipment"). It is a requirement of the Lease that the Acquisition Amount
in the amount of $53,000,000 be deposited into a segregated escrow account under terms
satisfactory to Lessor, for the purpose of fully funding the Lease, and providing a mechanism for
the application of such amounts to the purchase of and payment for the Equipment.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Creation of Escrow Account.
(a) There is hereby created an escrow fund to be known as the"Monroe County,
Florida Equipment Schedule No. 1 Escrow Account" (the "Escrow Account") to be held by the
Escrow Agent for the purposes stated herein, for the benefit of Lessor and Lessee, to be held,
disbursed and returned in accordance with the terms hereof.
(b) Lessee may, from time to time, provide written instructions for Escrow
Agent to use any available cash in the Escrow Account to purchase any money market fund or
liquid deposit investment vehicle that Escrow Agent from time to time makes available to the
parties hereto. Such written instructions shall be provided via delivery to Escrow Agent of a signed
and completed Escrow Account Investment Selection Form (such form available from Escrow
Agent upon request). All funds invested by Escrow Agent at the direction of Lessee in such short-
term investments (as more particularly described in Escrow Agent's Escrow Account Investment
Selection Form) shall be deemed to be part of the Escrow Account and subject to all the terms and
conditions of this Agreement. If any cash is received for the Escrow Account after the cut-off time
for the designated short-term investment vehicle, the Escrow Agent shall hold such cash
uninvested until the next Business Day. In the absence of written instructions from Lessee (on
Escrow Agent's Escrow Account Investment Selection Form) designating a short-term investment
of cash in the Escrow Account, cash in the Escrow Account shall remain uninvested and it shall
not be collateralized. Escrow Agent shall have no obligation to pay interest on cash in respect of
any period during which it remains uninvested. Lessee shall be solely responsible for ascertaining
that all proposed investments and reinvestments are Qualified Investments and that they comply
with federal, state and local laws, regulations and ordinances governing investment of such funds
and for providing appropriate notice to the Escrow Agent for the reinvestment of any maturing
investment. Accordingly, neither the Escrow Agent nor Lessor shall be responsible for any
liability, cost, expense, loss or claim of any kind, directly or indirectly arising out of or related to
68780248.v2
the investment or reinvestment of all or any portion of the moneys on deposit in the Escrow
Account, and Lessee agrees to and does hereby release the Escrow Agent and Lessor from any
such liability, cost, expenses, loss or claim. Interest on the Escrow Account shall become part of
the Escrow Account, and gains and losses on the investment of the moneys on deposit in the
Escrow Account shall be borne by the Lessee. The Escrow Agent shall have no discretion
whatsoever with respect to the management, disposition or investment of the Escrow Account.
The Escrow Agent shall not be responsible for any market decline in the value of the Escrow
Account and has no obligation to notify Lessor and Lessee of any such decline or take any action
with respect to the Escrow Account, except upon specific written instructions stated herein. For
purposes of this Agreement, "Qualified Investments" means any investments that the Lessee can
make under applicable Florida law.
(c) Unless the Escrow Account is earlier terminated in accordance with the
provisions of paragraph (d) below, amounts in the Escrow Account shall be disbursed by the
Escrow Agent in payment of amounts described in Section 2 hereof upon receipt of written
instruction(s) from Lessor, as is more fully described in Section 2 hereof. If the amounts in the
Escrow Account are insufficient to pay such amounts, Lessee shall provide any balance of the
funds needed to complete the acquisition of the Equipment. Any moneys remaining in the Escrow
Account on or after the earlier of (i) the expiration of the Acquisition Period or (ii) the date on
which Lessee executes a Final Acceptance Certificate shall be applied as provided in Section 4
hereof.
(d) The Escrow Account shall be terminated at the earliest of (i) the final
distribution of amounts in the Escrow Account, (ii) the date on which Lessee executes a Final
Acceptance Certificate or (iii) written notice given by Lessor of the occurrence of an Event of
Default under the Lease or termination of the Lease due to an Event of Non-appropriation.
Notwithstanding the foregoing, this Agreement shall not terminate nor shall the Escrow Account
be closed until all funds deposited hereunder have been disbursed.
(e) The Escrow Agent may act in reliance upon any writing or instrument or
signature which it, in good faith,believes to be genuine and may assume the validity and accuracy
of any statement or assertion contained in such a writing or instrument. The Escrow Agent shall
not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or
validity of any instrument nor as to the identity, authority, or right of any person executing the
same; and its duties hereunder shall be limited to the receipt of such moneys, instruments or other
documents received by it as the Escrow Agent, and for the disposition of the same in accordance
herewith. Notwithstanding and without limiting the generality of the foregoing, concurrent with
the execution of this Agreement,Lessee and Lessor,respectively,shall deliver to the Escrow Agent
an authorized signers form in the form of Exhibit A-1 (Lessee) and Exhibit A-2 (Lessor) attached
hereto. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with
and rely upon any notices, instructions or other communications believed by it to have been sent
or given by the parties or by a person or persons authorized by the parties. The Escrow Agent
specifically allows for receiving direction by written or electronic transmission from an authorized
representative with the following caveat, Lessee, to the extent permitted by law, and Lessor agree
to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages,
liabilities, judgments, costs and expenses (including reasonable attorneys' fees) (collectively,
"Losses") incurred or sustained by the Escrow Agent as a result of or in connection with the
2
Escrow Agent's reliance upon and compliance with instructions or directions given by written or
electronic transmission given by each, respectively,provided, however,that such Losses have not
arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood
that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the
instructions or directions, is, in fact, an authorized person shall not be deemed to constitute gross
negligence or willful misconduct.
In the event conflicting instructions as to the disposition of all or any portion of the
Escrow Account are at any time given by Lessor and Lessee,the Escrow Agent shall abide by the
instructions or entitlement orders given by Lessor without consent of the Lessee.
(f) Unless the Escrow Agent is guilty of gross negligence or willful misconduct
with regard to its duties hereunder, Lessee agrees, to the extent permitted by law, to and does
hereby release and indemnify the Escrow Agent and hold it harmless from any and all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or
charges of any character or nature,which it may incur or with which it may be threatened by reason
of its acting as Escrow Agent under this Agreement; and in connection therewith,does to the extent
permitted by law, indemnify the Escrow Agent against any and all expenses, including reasonable
attorneys' fees and the cost of defending any action, suit or proceeding or resisting any claim;
provided, however, that such claims, liabilities, losses, actions, suits or proceedings at law or in
equity, or any other expenses, fees or charges of any character or nature have not arisen from the
gross negligence or willful misconduct of the Escrow Agent.
(g) If Lessee and Lessor shall be in disagreement about the interpretation of the
Lease, or about the rights and obligations, or the propriety of any action contemplated by the
Escrow Agent hereunder, the Escrow Agent may, but shall not be required to, file an appropriate
civil action including an interpleader action to resolve the disagreement. The Escrow Agent shall
be reimbursed by Lessee for all costs, including reasonable attorneys' fees, in connection with
such civil action, and shall be fully protected in suspending all or part of its activities under the
Lease until a final judgment in such action is received.
(h) The Escrow Agent may consult with counsel of its own choice and shall
have full and complete authorization and protection with the opinion of such counsel. The Escrow
Agent shall otherwise not be liable for any mistakes of fact or errors of judgment, or for any acts
or omissions of any kind unless caused by its willful misconduct.
(i) Lessee shall reimburse the Escrow Agent from legally available funds for
all reasonable costs and expenses, including those of the Escrow Agent's attorneys, agents and
employees incurred for non-routine administration of the Escrow Account and the performance of
the Escrow Agent's powers and duties hereunder in connection with any Event of Default under
the Lease, any termination of the Lease due to an Event of Non-appropriation or in connection
with any dispute between Lessor and Lessee concerning the Escrow Account.
0) The Escrow Agent or any successor may at any time resign by giving mailed
notice to Lessee and Lessor of its intention to resign and of the proposed date of resignation (the
"Effective Date"), which shall be a date not less than 60 days after such notice is delivered to an
express carrier, charges prepaid, unless an earlier resignation date and the appointment of a
3
successor shall have been approved by the Lessee and Lessor. After the Effective Date,the Escrow
Agent shall be under no further obligation except to hold the Escrow Account in accordance with
the terms of this Agreement,pending receipt of written instructions from Lessor regarding further
disposition of the Escrow Account.
(k) The Escrow Agent shall have no responsibilities, obligations or duties other
than those expressly set forth in this Agreement and no implied duties, responsibilities or
obligations shall be read into this Agreement.
2. Acquisition of Property.
(a) Acquisition Contracts. Lessee will arrange for, supervise and provide for,
or cause to be supervised and provided for, the acquisition of the Equipment, with moneys
available in the Escrow Account. Lessee represents the estimated costs of the Equipment are
within the funds estimated to be available therefor, and Lessor makes no warranty or representation
with respect thereto. Lessor shall have no liability under any of the acquisition or construction
contracts. Lessee shall obtain all necessary permits and approvals, if any, for the acquisition,
equipping and installation of the Equipment, and the operation and maintenance thereof. Escrow
Agent shall have no duty to monitor or enforce Lessee's compliance with the foregoing covenant.
(b) Authorized Escrow Account Disbursements. It is agreed as between Lessee
and Lessor that disbursements from the Escrow Account shall be made for the purpose of paying
(including the reimbursement to Lessee for advances from its own funds to accomplish the
purposes hereinafter described)the cost of acquiring the Equipment.
(c) Requisition Procedure. No disbursement from the Escrow Account shall be
made unless and until Lessor has approved such requisition. Prior to disbursement from the
Escrow Account there shall be filed with the Escrow Agent a requisition for such payment in the
form of Disbursement Request attached hereto as Schedule 1, stating each amount to be paid and
the name of the person, firm or corporation to whom payment thereof is due. All disbursements
shall be made by wire transfer. The Escrow Agent is authorized to obtain and rely on confirmation
of such Disbursement Request and payment instructions by telephone call-back to the person or
persons designated for verifying such requests on Exhibit A-2 (such person verifying the request
shall be different than the person initiating the request). The Lessor and Lessee hereby confirm
that any call-back performed by Escrow Agent to verify a disbursement instruction pursuant to a
Disbursement Request submitted pursuant to this Section 2(c) before release, shall be made to
Lessor only and Escrow Agent shall have no obligation to call-back Lessee.
Each such Disbursement Request shall be signed by an authorized representative
of Lessee (an "Authorized Representative") and by Lessor, and shall be subject to the following
conditions, which Escrow Agent shall conclusively presume have been satisfied at such time as a
requisition executed by Lessee and Lessor is delivered to it:
1. Delivery to Lessor of an executed Disbursement Request in the form
attached hereto as Schedule 1; and
2. Delivery to Lessor of copies of invoices (and proofs of payment of such
invoices, if Lessee seeks reimbursement) and bills of sale (if title to such
4
Equipment has passed to Lessee)therefor as required by Section 3.04 of the
Lease and any additional documentation reasonably requested by Lessor.
Lessee and Lessor agree that their execution of the form attached hereto as Schedule 1 and
delivery of the executed form to Escrow Agent confirms that all of the requirements and conditions
with respect to disbursements set forth in this Section 2 have been satisfied.
3. Deposit to Escrow Account. Upon satisfaction of the conditions specified in
Section 3.04 of the Lease,Lessor will cause the Acquisition Amount to be deposited in the Escrow
Account. Lessee agrees to pay any costs with respect to the Equipment in excess of amounts
available therefor in the Escrow Account.
4. Excessive Escrow Account. Upon receipt of written instructions from Lessor
including a representation that one of the following conditions has been satisfied (upon which
representation Escrow Agent shall conclusively rely), any funds remaining in the Escrow Account
on or after the earlier of(a)the expiration of the Acquisition Period or(b)the date on which Lessee
executes an Acceptance Certificate, or upon a termination of the Escrow Account as otherwise
provided herein, shall be distributed by the Escrow Agent to the Lessor in order for the Lessor to
apply such funds to amounts owed by Lessee under the Lease in accordance with Section 4.07 of
the Lease.
5. Information Required Under USA PATRIOT ACT. The parties acknowledge that
in order to help the United States government fight the funding of terrorism and money laundering
activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326
of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and
update information that identifies each person establishing a relationship or opening an account.
The parties to this Agreement agree that they will provide to the Escrow Agent such information
as it may request, from time to time, in order for the Escrow Agent to satisfy the requirements of
the USA PATRIOT Act, including but not limited to the name, address, tax identification number
and other information that will allow it to identify the individual or entity who is establishing the
relationship or opening the account and may also ask for formation documents such as articles of
incorporation or other identifying documents to be provided.
6. Miscellaneous. Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Lease. This Agreement may not be amended except in writing
signed by all parties hereto. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original instrument and each shall have the force and effect of
an original and all of which together constitute, and shall be deemed to constitute, one and the
same instrument. Notices hereunder shall be made in writing and shall be deemed to have been
duly given when personally delivered or when deposited in the mail, first class postage prepaid, or
delivered to an express carrier, charges prepaid, or sent by facsimile with electronic confirmation,
addressed to each parry at its address below.
Notices and other communications hereunder may be delivered or furnished by electronic
mail provided that any formal notice be attached to an email message in PDF format and provided
further that any notice or other communication sent to an e-mail address shall be deemed received
5
upon and only upon the sender's receipt of affirmative acknowledgement or receipt from the
intended recipient. For purposes hereof no acknowledgement of receipt generated on an automated
basis shall be deemed sufficient for any purpose hereunder or admissible as evidence of receipt.
It is understood and agreed that for no purpose shall notice to TMI Trust Company in its
capacity hereunder constitute notice to Banc of America Public Capital Corp in its capacity
hereunder.
If to Lessor:
Banc of America Public Capital Corp
11333 McCormick Road
Hunt Valley II
M/C MD5-032-07-05
Hunt Valley, MD 21031
Attn: Contract Administration
Fax: (443) 541-3057
If to Lessee: Monroe County, Florida
1100 Simonton Street, Suite 2-213
Key West, Florida 33040
Attn: County Administrator
Fax: (305) 292-4515
If to Escrow Agent:
TMI Trust Company
5901 Peachtree Dunwoody Road, Suite C495
Atlanta, GA 30328
Telephone: (678) 221-5898
E-Mail: dschachel@tmico.com
7. Lessee and Lessor understand and agree that they are required to provide the
Escrow Agent with a properly completed and signed Tax Certification(as defined below) and that
the Escrow Agent may not perform its duties hereunder without having been provided with such
Tax Certification. As used herein "Tax Certification" shall mean an IRS form W-9 or W-8 as
described above. The Escrow Agent will comply with any U.S. tax withholding or backup
withholding and reporting requirements that are required by law. With respect to earnings
allocable to a foreign person, the Escrow Agent will withhold U.S. tax as required by law and
report such earnings and taxes withheld, if any, for the benefit of such foreign person on IRS Form
1042-S (or any other required form), unless such earnings and withheld taxes are exempt from
reporting under Treasury Regulation Section 1.1461-1(c)(2)(ii) or under other applicable law.
With respect to earnings allocable to a United States person, the Escrow Agent will report such
income, if required, on IRS Form 1099 or any other form required by law. The IRS Forms 1099
and/or 1042-S shall show the Escrow Agent as payor and Lessee as payee. Escrow Agent shall
recognize Lessee as the designated party for regulatory reporting purposes.
Lessee and Lessor agree that they are not relieved of their respective obligations, if any, to
prepare and file information reports under Code Section 6041, and the Treasury regulations
6
thereunder, with respect to amounts of imputed interest income, as determined pursuant to Code
Sections 483 or 1272. The Escrow Agent shall not be responsible for determining or reporting such
imputed interest.
8. This Agreement shall be governed by and construed in accordance with the laws of
the State of Florida and the parties hereto consent to jurisdiction in any state court located in the
Monroe County,Florida and any federal court with proper jurisdiction located in the United States
District for the Southern District of Florida.
9. Any bank or corporation into which the Escrow Agent may be merged or with
which it may be consolidated, or any bank or corporation to whom the Escrow Agent may transfer
a substantial amount of its escrow business, shall be the successor to the Escrow Agent without
the execution or filing of any paper or any further act on the part of any of the parties, anything
herein to the contrary notwithstanding. Any bank or corporation into which the Lessor may be
merged or with which it may be consolidated, or any bank or corporation to whom the Lessor may
transfer a substantial amount of its business, shall be the successor to the Lessor without the
execution or filing of any paper or any further act on the part of any of the parties, anything herein
to the contrary notwithstanding.
10. This Agreement may be amended, modified, and/or supplemented only by an
instrument in writing executed by all parties hereto.
11. No party hereto shall assign its rights hereunder until its assignee has submitted to
the Escrow Agent (i)Patriot Act disclosure materials and the Escrow Agent has determined that
on the basis of such materials it may accept such assignee as a customer and (ii) assignee has
delivered an IRS Form W-8 or W-9, as appropriate,to the Escrow Agent which the Escrow Agent
has determined to have been properly signed and completed. Any party assigning its rights
hereunder shall provide the other parties hereto with written notice to such effect.
12. Escrow Agent will treat information related to this Agreement as confidential but,
unless prohibited by law,Lessee and Lessor authorize the transfer or disclosure of any information
relating to this Agreement to and between the subsidiaries, officers, affiliates and other
representatives and advisors of Escrow Agent and third parties selected by any of them, wherever
situated, for confidential use in the ordinary course of business, and further acknowledge that
Escrow Agent and any such subsidiary, officer, affiliate or third party may transfer or disclose
any such information as required by any law, court, regulator or legal process.
Lessor will treat information related to this Agreement as confidential but, unless
prohibited by law,Escrow Agent and Lessee authorize the transfer or disclosure of any information
relating to this Agreement to and between the subsidiaries, officers, affiliates, other representatives
and advisors of Lessor and debt and equity sources and third parties selected by any of them, and
to their prospective assignees wherever situated, for confidential use in the ordinary course of
business, and further acknowledge that Lessor and any such subsidiary, officer, affiliate, debt and
equity source or third party or prospective assignee may transfer or disclose any such information
as required by any law, court, regulator or legal process.
7
Lessee will treat the terms of this Agreement as confidential except on a "need to know"
basis to persons within or outside Lessee's organization (including affiliates of such parry), such
as attorneys, accountants,bankers, financial advisors, auditors and other consultants of such parry
and its affiliates, except as required by any law, court, regulator or legal process.
[Remainder ofpage intentionally left blank; signature page follows]
8
IN WITNESS WHEREOF,the parties have executed this Escrow Agreement as of the date first
above written..
BANS'OF AMERICA PUBLIC CAPITAL CORP lti✓IONROE COUNTY, FLORIDA
as Lessor as Lessee
w
By: By:
Name: Name: Craig Cates
Title:. Autheri Title: Mayor of the Board of County
Commissioners for Monroe County
TMI TRUST COMPANY
as Escrow Agent
By:
Title:
[Signature page to Escrow Agreement....Schedule of Property No. I]
IN WITNESS WHEREOF,the parties have executed this Escrow Agreement as of the date first
above written.
BANG'OF AMERICA PUB,LIC CAPITAL CORP MONROE CouNTY,FLORIDA
as Lessor as Lessee
By: By:
Name: Name: Cram Kates
Title: Title: Mayor of the Board of County
Commissioners for Monroe County
TMI TRuST COMPANY
as Escrow Agent
By:
Name:
Title:
tAom E Cou t
AAPT
TV7E /, .......
PLO " J.MERCAQQ�-
C9UW-
ASS1
Dee
[Signature page to Escrow Agreement—Schedule of Property No, I
IN WITNESS WHEREOF,the parties have executed this Escrow Agreement as of the date first
above written.
BANC OF AMERICA PUBLIC CAPITAL CORP MONROE COUNTY,FLORIDA
as Lessor as Lessee
By: By:
Name: Name: Craig Cates
Title: Title: Mayor of the Board of County
Commissioners for Monroe County
TMI TRUST COMPANY
as Escrow Agent
By:
Name: Thomas Popovi s
Title: Director
[Signature page to Escrow Agreement—Equipment Schedule No. 1]
SCHEDULE I
to the Escrow Agreement
FORM OF DISBURSEMENT REQUEST
Re: Equipment Schedule No. 1 dated May 19, 2023 to Master Equipment
Lease/Purchase Agreement dated as of May 19,2023,by and between Banc
of America Public Capital Corp, as Lessor, and Monroe County, Florida, as
Lessee (the "Lease") (Capitalized terms not otherwise defined herein shall
have the meanings assigned to them in the Lease.)
In accordance with the terms of the Escrow Agreement, dated as of May 19, 2023 (the
"Escrow Agreement") by and among Banc of America Public Capital Corp ("Lessor"), Monroe
County, Florida("Lessee") and TMI Trust Company, as escrow agent(the "Escrow Agent"), the
undersigned hereby requests the Escrow Agent pay the following persons the following amounts
from the Escrow Account created under the Escrow Agreement for the following purposes:
Disbursement Amounts:
Payee's Name and Address Invoice Number Dollar Amount Purpose
<Payee's Name> <invoice list OR"see <invoice amount> <general description of
<Payee Address 1> attached"with a equipment; ex"police cruiser">
<Payee Address 2> spreadsheet>
<Payee Address 3>
<Payee Bank Name*>
<Payee Bank ABA/Routing*>
<Payee Bank Account No*>
<Payee Account Name*>
<*Payee Address and Payee Bank
information is re uired.>
<Payee's Name> <invoice list OR"see <invoice amount> <general description of
<Payee Address 1> attached"with a equipment; ex"police cruiser">
<Payee Address 2> spreadsheet>
<Payee Address 3>
<Payee Bank Name*>
<Payee Bank ABA/Routing*>
<Payee Bank Account No*>
<Payee Account Name*>
<*Payee Address and Payee Bank
information is re uired.>
Lessee hereby represents, covenants and warrants for the benefit of Lessor on the date hereof as
follows:
Schedule 1-1
(1) (a)Each obligation specified in the table herein titled as"Disbursement Amounts"has been
incurred by Lessee in the stated amount, (b)the same is aproper charge against the Escrow
Account for costs relating to the Equipment identified in the Lease, and (c) has not been
paid(or has been paid by Lessee and Lessee requests reimbursement thereof).
(ii) Each item of Equipment relating to an obligation specified in the table herein titled as
"Disbursement Amounts"has been delivered,installed and accepted by Lessee. Attached
hereto is a copy of the invoice with respect to such obligation.
(iii) The undersigned, as Authorized Representative,has no notice of any vendor's,mechanic's
or other liens or rights to liens, chattel mortgages, conditional sales contracts or security
interest which should be satisfied or discharged before such payment is made.
(iv) This requisition contains no item representing payment on account, or any retained
percentages which Lessee is, at the date hereof, entitled to retain(except to the extent such
amounts represent a reimbursement to Lessee).
(v) The Equipment is insured in accordance with the Lease.
(vi) No Event of Default, and no event which with notice or lapse of time, or both, would
become an Event of Default, under the Lease has occurred and is continuing at the date
hereof. No Event of Non-appropriation has occurred or is threatened with respect to the
Lease.
(vii) The disbursement shall occur during the Acquisition Period.
(viii) The representations,warranties and covenants of Lessee set forth in the Lease are true and
correct as of the date hereof.
(ix) No Material Adverse Change has occurred since the date of the execution and delivery of
the Lease.
(x) The information in this Disbursement Request regarding each Payee, including
their respective name, address and wiring instructions, (collectively, the "Payee
Information") is true and correct, such Payee Information has been verified and
confirmed by Lessee and the Lessor can rely on Lessee's verification and
confirmation of the accuracy of such Payee Information. Lessee hereby
acknowledges and agrees that any call-back performed by Lessor to verify the
disbursement instructions pursuant to this Disbursement Request shall be made to
Lessee only and Lessor shall have no obligation to call-back any Payee listed above.
[Remainder ofpage intentionally left blank]
Schedule 1-2
Dated: MONROE COUNTY,FLORIDA
By:
Name:
Title:
Approval of the Clerk of the Circuit Court
and Comptroller in and for Monroe County,
Florida
By:
Name:
Title:
Disbursement of funds from the Escrow
Account in accordance with the foregoing
Disbursement Request hereby is authorized
BANG OF AMERICA PUBLIC CAPITAL CORP
as Lessor under the Lease
By:
Name:
Title:
Schedule 1-3
EXHIBIT A-2
Escrow and Account Control Agreement dated as ofelfY Iy,;OZ5 by and among
Lessor, Lessee and Escrow Ag6t 1
Certificate of Authorized Representatives—[Lessor]
Name: Bridgett Arnold Name: Whitney Keogh
Title: Authorized Agent Title: Authorized Agent
Phone: 415-765-1867 Phone: 401-854-5452
Facsimile: 415-765-7373 Facsimile: NIA
E-mail: Bridgett.amold@,bolla.com E-mail: hitney.keogh@bofa.com
Signature: 7 e-_7 � /K Signature:
4 Vq�
V
Fund Transfer/Disbursement Authority Level: Fund Transfer/Disbursement Authority Level:
X Initiate x Initiate
X Verify transactions initiated by others x Verify transactions initiated by others
Name: Augustine Reichenbach Name: Patricia Myers
Title: 'Authorized Agent Title: Authorized Agent
Phone: 443-541-2613 Phone: 401-854-5525
Facsimile: 904-312-6101 Facsimile: NIA
E-mail: Augustinexcichenbach( bofa.com E-mail: Patricia.myers&hofa.com
Signature: Signature:
Fund Transfer/Disbursement Authority Level: Fund Transfer/Disbursement Authority Level:
X Initiate x Initiate
X Verify transactions initiated by others x Verify transactions initiated by others
Name: Terri Preston Name: Alicia Cosby
Title: -Authorized Agent TjtW Operations Analyst
Phone: 443-541-3642 Phone: 443-541-3651
Facsimile: 804-553-8124 Facsimile: N/A
E-mail: Terri.prcston@bofaxom E-mail: Alicia.cosb u)yLbofa.com
N 4g&
Signatu�°:')----- Signature:
11,
Fund Transfer/Disbursement Authority Level: Fund Transfer/Disbursement Authority Level:
X Initiate x Initiate
Verify transactions initiated by others x Verify transactions initiated by others
Name: Arlene Sobicck Name:
Title: Authorized Agent Title:
Phone: 443-541-3643 Phone:
Facsimile: 804-264-0671 Facsimile:
E-mail: Arlene.sobieck(a),bofaxoni E-mail:
Signature: G�k_ sle." Signature:
Fund Transfer/Disbursement Authority Level: Fund Transfer/Disbursement Authority Level
X Initiate Initiate
x Verify transactions,initiated by others Verify transactions initiated by others
The Escrow Agent is authorized to comply with and rely upon any notices, instructions or other
communications believed by it to have been sent or given by the person or persons identified above
including without limitation,to initiate and verify funds transfers as indicated.
Banc of America Public�C ' I%Corp
By:
Na At4ustine Reiche n aCh
Ti V Authorized Agent
Date:
CLERK'S CERTIFICATE AS TO RESOLUTION NO. 149-2023
1, Liz Yongue, Deputy Clerk of the Circuit Court of Monroe County, Florida and
Ex-Officio Deputy Clerk to the Board of County Commissioners (the "County"), DO
HEREBY CERTIFY that attached hereto is a copy of "A RESOLUTION OF THE
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA
ACCEPTING THE PROPOSAL OF BANC OF AMERICA PUBLIC CAPITAL CORP
TO PROVIDE THE COUNTY WITH LEASE-PURCHASE FINANCING WITH
RESPECT TO THREE HELICOPTERS FOR THE SHERIFF'S OFFICE;
AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER EQUIPMENT
LEASE/PURCHASE AGREEMENT AND EQUIPMENT SCHEDULES THERETO;
AUTHORIZING THE EXECUTION AND DELIVERY OF AN ESCROW
AGREEMENT AND THE APPOINTMENT OF AN ESCROW AGENT THERETO;
AUTHORIZING THE EXECUTION AND DELIVERY OF AN AIRCRAFT
ADDENDUM;DELEGATING CERTAIN AUTHORITY TO CERTAIN OFFICIALS OF
THE COUNTY; AUTHORIZING THE EXECUTION AND DELIVERY OF OTHER
DOCUMENTS IN CONNECTION THEREWITH; AND PROVIDING FOR AN
EFFECTIVE, DATE FOR THIS RESOLUTION," adopted at a meeting of the Board of
County Commissioners duly called and held on April 19, 2023, at which meeting a quorum
was present and acting throughout, which resolution has been compared by me with the
original thereof as recorded in the Minute Book of said County and that said resolution is
a true, complete and correct copy thereof and said resolution has been duly adopted and
has not been 'further modified, amended or repeated, and is in full force and effect on and
as of the date hereof in the form attached hereto.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the County as of the 19th day of May, 2023
Kevin Madok, Clerk of the Circuit Court and
Comptroller in and for Monroe County, Florida
and Ex-Officio Clerk to the Board of County
Commissioners of Monroe County, Florida
L'ir. ongue, Deputy Clerk
RESOLUTION NO. 149-2023
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
ACCEPTING THE PROPOSAL OF BANC OF AMERICA
PUBLIC CAPITAL CORP TO PROVIDE THE COUNTY
WITH, LEASE-PURCHASE FINANCING WITH RESPECT
TO THREE HELICOPTERS FOR THE SHERIFF'S OFFICE;
AUTHORIZING THE EXECUTION AND DELIVERY OF A
MASTER EQUIPMENT LEASE/PURCHASE
AGREEMENT AND EQUIPMENT SCHEDULES
THERETO; AUTHORIZING THE EXECUTION AND
DELIVERY OF AN ESCROW AGREEMENT AND THE
APPOINTMENT OF AN ESCROW AGENT THERETO;
AUTHORIZING THE EXECUTION AND DELIVERY OF
AN AIRCRAFT' ADDENDUM; DELEGATING CERTAIN
AUTHORITY TO CERTAIN OFFICIALS OF THE
COUNTY; AUTHORIZING THE EXECUTION AND
DELIVERY OF OTHER DOCUMENTS IN CONNECTION
THEREWITH; AND PROVIDING FOR AN EFFECTIVE
DATE FOR THIS RESOLUTION.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF'
MONROE COUNTY, FLORIDA:
SECTION 1. FINDINGS AND AUTHORIZATIONS. It is hereby found
and determined that:
(A) In order to improve and maintain the health, safety and welfare of Monroe
County, Florida (the "County")and its citizens and visitors, it is necessary and desirable to
acquire three AW139 helicopters (the "Helicopters") to be used by the Monroe County
Sheriffs Office(the"Sheriffs Office"),as such Helicopters are more particularly described
in the plans and specifications on file with the County and the Sheriffs Office.
(B) The County's financial advisor,PFM Financial Advisors LLC(the"Financial
Advisor"), solicited proposals from various financial institutions to provide lease-purchase
Financing options for financing costs of the helicopters.
(C) Banc of America Public Capital Corp ("Banc of America") submitted its
proposal (the "Proposal") to provide the County with a lease-purchase financing
arrangement to finance costs of the Helicopters, which Proposal was the most favorable
proposal received by the County, a copy of which is attached hereto as Exhibit A.
(D) It is in the best interests of the County to lease-purchase the helicopters from
Banc of America pursuant to a Master Equipment Lease/Purchase Agreement to be
executed between the County and Banc of America in substantially the form attached
hereto as Exhibit B, as the same shall be supplemented from time to time by equipment
schedules thereto in the manner and to the extent provided in the Master Equipment
Lease/Purchase Agreement(collectively, the "Lease-Purchase Agreement"').
(E) The County's payment obligations under the Lease-Purchase Agreement
shall be repaid solely from legally available revenues of the County that are budgeted and
appropriated on an annual basis in the manner and to the extent provided in the Lease-
Purchase Agreement and the payment obligations of the County under the Lease-Purchase
Agreement shall not constitute a general obligation of the County or a pledge of any of its
faith and credit or taxing power and Banc of America shall never have the right to compel
the ad valorem taxing power of the County to make any payments under the Lease-
Purchase Agreement.
(F) Due to the potential volatility of the market for obligations such as the Lease-
Purchase Agreement and the complexity of the transactions relating to such Lease-
Purchase Agreement and the -fact Banc of America submitted the most beneficial proposal
pursuant to a competitive solicitation process,it is in the best interest of the County to enter
the Lease-Purchase Agreement by a negotiated sale to Banc of America, allowing the
County to execute the Lease-Purchase Agreement at the most advantageous time, rather
than at a specified advertised date,thereby permitting the County to obtain the best possible
price, terms and interest rate for the Lease-Purchase Agreement,
SECTION 2. DEFINITIONS. When used in this Resolution, the terrors
defined in the Line of Credit Agreement shall have the meanings therein stated, except as
such definitions may be hereinafter amended and defined.
The words "herein," "'hereunder,"' "hereby,'" "hereto," ""hereof,"" and any similar
terms shall refer to this Resolution.
Words importing the singular number include the plural number, and vice versa.
SECTION 3. AUTHORITY FOR THIS RESOLUTION. This Resolution
is adopted pursuant to the provisions of the Constitution of the State of Florida, Chapter
125, Florida Statutes, and other applicable provisions of law.
SECTION 4. RESOLUTION 'TO CONSTITUTE CONTRACT. In
consideration of the provision of the Lease-Purchase Agreement, the provisions of this
Resolution shall be a part of the contract of the County with Banc of America and shall be
deemed to be and shall constitute a contract between the County and Banc of America.
The provisions, covenants and agreements herein and in the Lease-Purchase Agreement
set forth to be performed by or OD behalf of the County shall be for the benefit, protection
and security of Banc of America.
2
SECTION 5. AUTHORIZATION OF THE HELICOPTERS;
REIMBURSEMENT. The acquisition and equipping of the Helicopters and the financing
thereof pursuant to the Lease-Purchase Agreement are hereby authorized and approved,
The County hereby authorizes the reimbursement of any costs of the Helicopters previously
incurred by the County or subsequently incurred by the County prior to the, funding of the
escrow account established under the herein described Escrow Agreement from amounts
on deposit in such escrow account, all in accordance with the Internal Revenue Code of
1986, as amended. Any such costs are currently expected to be paid from funds budgeted
for the Sheriffs Office.
SECTION 6. ACCEPTANCE OF PROPOSAL. The County hereby
accepts the Proposal of Bane of America to provide the County with the Lease-Purchase
Agreement to finance costs of the Helicopters, a copy of which Proposal is attached hereto
as Exhibit A. The Mayor and the County Administrator are each hereby authorized to
execute and deliver the Proposal to Banc of America, all of the terms and provisions of
which are hereby approved and all actions previously taken by officials and employees of
the County and the Sheriffs Office and professionals to the County with respect to the
Proposal are hereby ratified and approved.
SECTION 7. APPROVAL OF LEASE-PURCHASE AGREEMENT.
The terms and provisions of the Lease-Purchase Agreement in substantially the form
attached hereto as Exhibit B are hereby approved, with such changes, insertions and
additions as the County Administrator, upon the advice of the County Attorney,, the
County's Bond Counsel and the Financial Advisor, may approve. The County hereby
authorizes the Mayor to execute and deliver, and the Clerk of the Circuit Court and
Comptroller in and for the County (the "Clerk") to attest and affix the County seal to, the
Lease-Purchase Agreement substantially in the form attached hereto as Exhibit B, with
such changes, insertions and additions as may be approved, their execution thereof being
evidence of such approval. Notwithstanding the foregoing, the interest rate for the Lease-
Purchase Agreement shall equal 3.2591% and the final maturity of the Lease-Purchase
Agreement shall be no later than April 1, 2038. The Mayor, the Clerk, the County
Administrator and each of their designees are each authorized to take such action as is
necessary to carry out the rights and obligations of the County under the Lease-Purchase
Agreement and shall each be considered an "authorized representative" of the County for
purposes of the Lease-Purchase Agreement.
SECTION 8. EXECUTION AND DELIVERY OF EQUIPMENT
SCHEDULES. To the extent deemed necessary or desirable by the County Administrator,
the County may enter one or multiple equipment schedules to the Lease-Purchase
Agreement in order to effectuate the lease-purchase of the Helicopters. The Mayor, the
Clerk,the County Administrator and each of their designees are each authorized to execute
and deliver such equipment schedules,
SECTION 9. APPROVAL OF ESCROW AGREEMENT. The terms and
provisions of the Escrow Agreement in substantially the form attached hereto as Exhibit C
3
are hereby approved, with such changes, insertions and additions as the County
Administrator, upon the advice of the County Attorney, the County's Bond Counsel and
the Financial Advisor, may approve. The County hereby authorizes the Mayor to execute
and deliver, and the Clerk. to attest and affix the County seal to, the Escrow Agreement
substantially, in the form attached hereto as Exhibit C, with such changes, insertions and
additions as may be approved, their execution thereof being evidence of such approval.
TMI Trust Company is appointed as the initial escrow agent under the Escrow Agreement.,
The Mayor, the Clerk, the County Administrator and each of their designees are each
authorized to take such action as is necessary to carry out the rights and obligations of the
County under the Escrow Agreement and shall each be considered an "authorized
representative" of the County for purposes of the Escrow Agreement. The Clerk shall
approve all disbursements from the escrow account.
SECTION 10. APPROVAL OF ADDENDUM RELATING TO
AIRCRAFT. The terms and provisions of the Addendum Relating to Aircraft (the
"Aircraft Addendum") in substantially the form attached hereto as Exhibit D are hereby
approved, with such changes,, insertions and additions as the County Administrator, upon
the advice of the County Attorney, the County's Bond Counsel and the Financial Advisor,
may approve. The County hereby authorizes the Mayor to execute and deliver, and the
Clerk to attest and affix the County seal to, the Aircraft Addendum substantially in the
form attached hereto as Exhibit D, with such changes, insertions and additions as may be
approved, their execution thereof being evidence of such approval. The Mayor, the Clerk,
the County Administrator and each of their designees are each authorized to take such
action as is necessary to carry out the rights and obligations of the County under the Aircraft
Addendum and shall each be considered an "authorized representative" of the County for
purposes of the Aircraft Addendum.
SECTION 10. LIMITED OBLIGATION. The obligation of the County to
make lease payments under the Lease-Purchase Agreement is a limited and special
obligation of the County payable from legally available revenues budgeted and
appropriated in the manner and to the extent set forth in the Lease-Purchase Agreement
and shall not be deemed a pledge of the faith and credit or taxing power of the County and
such obligation shall not create a lien on any property whatsoever of or in the County,
including but not limited to the Helicopters. Banc of America shall never have the right to
compel the ad valorem taxing power of the County to make any payments under the Lease-
Purchase:Agreement.
SECTION 11. USE BY THE SHERIFF'S OFFICE OF THE
HELICOPTERS. Prior to the delivery of the Helicopters, the County and the Sheriffs
Office (or any entity wholly owned and controlled by the Sheriffs Office) shall enter into
an agreement governing the use, operation and maintenance of the Helicopters by the
Sheriffs Office and other matters related thereto.
SECTION 12. GENERAL AUTHORIZATION. The Mayor, the Clerk and
the County Administrator are authorized to execute and deliver such documents,
4
instruments and contracts, whether or not expressly contemplated hereby, and the County
Attorney, Bond Counsel, the Financial Advisor and other employees or agents of the
County are hereby authorized and directed to do all acts and things required hereby or
thereby as may be necessary for the full, punctual and complete performance of all the
terms, covenants, provisions and agreements herein and therein contained, or as otherwise
may be necessary or desirable to effectuate the purpose and intent of this ReSOILItion.
SECTION 13. REPEAL OF INCONSISTENT DOCUMENTS. All prior
ordinances, resolutions, or parts thereof in conflict herewith are hereby superseded and
repealed to the extent of such conflict.
SECTION 14. EFFECTIVE DATE. 'This Resolution shall take effect
immediately upon its adoption.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe
County, Florida, at a regular meeting of said Board held on the 19th day of April 2023.
Mayor Craig Cates Yes
Mayor Pro Tem Holly Raschein Yes
Commissioner Michelle Lincoln Yes,
Commissioner James K. Scholl Yes
Commissioner David Rice Yes
B01ARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
Attest: Kevin Madok,Clerk
4
By: By:
As Deputy Clerk Mayor
MONROECOUNTY ATTORNEY' OFFICE
4/28/23
Approved for form and legal sufficiency X
Pedro Mercado, Sr. Assistant County Attorney
2
Exhibit A
Bane of America Public Capital Corp Proposal
BANK OF AMERICA ":r�
Charles T.Maguire Government Finance Group
Senior Vice President I I I I E.Main Street, 18"FL,VA2-300-18-02
Richmond,VA 23219
T 804.489,5044 1,'804.2618344 M 804432,9572
Charl es,maguire@11ofA.corn
March 20,2023
Tina Boan
Budget&Finance Dept.
Scnior Director
Monroe County, FL.
Dear Ms.Boan,
Banc of America Public Capital Corp ("BAPCC") is pleased to Submit to you ("Lessee") the lease financing
proposal (the"Proposed Transaction")described in the attached Summary of Terms and Conditions(the"Term
Sheet").
Please note that aircraft financing requires a deep understanding and experience in order to properly docurnent
and close in a timely and cost-effective manner,add the specific Florida statutes that run counter to some FAA
requirements,and you have a transaction best suited for experienced lessors.
In addition to the basic Master Equipment Lease/Purchase Agreement and related documents,an Aircraft
Addendum will be crafted that will contain all the terms necessary for such a specialized asset. Those types of
provisions include maintenance,insurance and other requirements that are normal for helicopter
financings. Once Lessor has additional information about the helicopters and their use,Lessor will work with
counsel to prepare and provide a draft of this Addendum.
Banc of America Public Capital Corp is a leader in municipal leasing both nationally and in Florida(currently
hold State of Florida's master lease program),as well as a leader in aircraft leasing,including aircraft with Bay
County,FL.(closed March 2023), Florida Keys Mosquito District and Let,County Mosquito Control District.
This letter and the Tenn Sheet(collectively,the"Proposal"or"Proposal Letter")include only a brief description
of the principal terms of the Proposed Transaction and are intended for discussion purposes only. This Proposal
Letter is not intended to and does not create any binding legal obligation on the part of either party. BAPCC will
not be obligated to provide any financing until the satisfactory completion of its credit, legal and investment
approval process. The tennis and conditions of this Proposal Letter shall be superseded by and shall no longer be
effective upon the execution and delivery of final legal documentation with respect to,this Proposed Transaction.
This Proposal must be accepted on or before Maii-ch 27,2023,for BAPCC to proceed with its consideration of the
Proposed Transaction. To accept this proposal,please sign the enclosed copy of this letter and return it, by no
later than March 27 1h to:
'Bank of America'is the marketing name used by certain Global Banking and Global Markets businesses of Bank of Arnerica Corporation.
Lending,leasing,mulpment Finance and other commercial banking activities,and trading in certain financiail instruments are performed
globally by banking affiliates of Bank of America Corporation,including Bank of America,N.A.,Member FDIC.Banc of America Public Capital
Corp,a wholly-owned subsidiary of Bank of America,National Association,is not a municipal advisor and is not subject to the fiduciary duty
established pn Section of t�he Securities Exchange Act of 1934,as amended, with respect to any municipal financial product or
issuance of municipal securities.The information provided in this document is not Intended to be and should not be construed as"advice"
with the meaning Section 15B of the Securities Exchange Act of 1934 and the municipal advisor rules of the SECAO 2019 Bank of Arnerica
Corporation,All rights reserved,
Page 2
Bane of America Public Capital Corp
1111 E.Main Street,18"Floor
Richmond,VA 23831
P—804489-5044
We appreciate this,opportunity to preseni Bank of America.
Very truly yours,
nagaeu
Charles T.Maguire
Senior Vice President
The undersigned,by its authorized representative below,accepts the above proposal,agTCCS,to furnish Lessor,its
successors and assigns,any information relating to the business or financial condition of Lessee or its,affiliates,
and authorizes Lessor,Bank of Arrierica,National Association,and their affiliates to disclose to,discuss with and
distribute such information (and any information they may already have) to any other affiliates or proposed
assignees or successors,of Lessor,
Monroe County FL,.
By: By:
Title: Title:
Date: Date:
Tiie contents of'tiiispioposolapada)�y
subsequent discussions be lween us,including any and all irybo-snation,reconotnetu'loations,opinions,indicative pricing,quo tarions and
enunidpalsecurifies,are provided to you in reliance upon she
The Stall qf 1he SEC's Of fice qlMunicipal Securities has issbedgwidanre which provides that in order for a request.forproposals to be,
consistent with this exesnprion,is musi art leer rif y aparficularobjprrive, (b)be open far nor Ynore than a reasonable period of liniv(Alp to six
m)whs heing generalFv Considered as reasonable),and(c)iuvolve a compelitiveprocesi(such as by being provided toot least three
reasonalol conipelitii,,�,tria?,kelparticiptit�f.�)oi�bybci�iAp;ib,lielypoytcdto)�o�iirof proposal,Y ficial websife, In submilfing this prop s, we have reUled
upon your complianee.with this guidance,
M suboniauki;thiF proposal,we are not undertaking to act as:a"Plunicival advisor"to you or any other person within tile meaning,0j'the
Rules. In connection o vieh tolsis proposal and the transaclions described herein,we are not subject to,and we Is ereby disclaim,any,fidou ciary
fatty la you ar to aaay"other persara, We understand than you svIll consult with and mly on the advice olyour own rnutlicipal,"fbiandal.lax.
lisol and other advisort,as and to she exseneyou deem necesseny in connection with,your evaluation of`this and the rransactions
described herein,
7&2 thu doe um eon is tin am's leregill,
Jrarane rat'rill•rscrr¢d��,wua rr-golly lr�V l'C"�'Pans e�lcr Ja"rdcdcrrary�'bry yabrwsrrd�t¢rra wvvrexrvrr 15{!drf Pie,9a�¢arrl tuea twxclra�rga;.�d,r
of 1934 so you wlsh raipece to stars Iransacsion and Ow doscumonv,underIsAvogs arodpmceduray leading thrrafs ofwAsether RAPC(":ur ao,,y ofits
affiliate's has pro wided ofivo-services or is rurrend),pro WKsong other servicay lo you On Oliver matt, (e l')thr orsip,obitgatio,av BAPCC has u,lve,wools ravpexe so
ably fireseffimeh in the de"finisive Iranyoution agreenlenly he rover us:and RAI"Cl-,is Pool recollmovdinp that you taAe an action wiM resslwa to the
sramaction dese-mbed in flan dotament,ond before inki g n ev y action wall respect to Oxf"silos fransaction,yaa should duckoss the ivfi�wpvasiopl,roporained I'lembo wilh
yol'u,own legol),al.r u5valling,fai iuvancial and o0px adwsons,as.yeou vieum if yoso would luwa onunocipal advisor m this ltausac6an Ifum hay legal
fidlicuOy dzah'rs so youa ynod are jree lo L'oopV4,a o"Vnicipal WWYO'lO sI'rI"e in that aedtya.
SUMMARY OF TERMS AND CONDITIONS
Date: March 20,2023
Lessee: Monroe County,FL.
Lessor. Bane of America Public Capital Corp("BAPCC")or its assignee:or designee
Equipilient: Three(3)Agustawestland Philadelphia Corporation helicopters,Model AWI 39.
Structure: The Lease will be structured as a NON-BANK QUALIFIED TAX-EXEMPT transaction.
This is a lease intended as security transaction;all tax benefits will remain with Lessee;the
lease will be a net financial lease,and all expenses,including(but not limited to)insurance,
maintenance,and taxes,will be for the account of Lessee.
Term: 15 years.
Maximum
Funding: Not to exceed S,52,000,000.
Rate: 3.2591%
The current rates are locked until May 20,2023,and will be honoredso long as theiransadion
is./anded before such date. After May 20,2023, Lessor inay adjust the rate upward depending
on changes in interest rates between May 20,2023,and the date the final pricing is,detcrmined.
To lock the,rate,the Lcssec must notify(email is fine)BAPC.(., of acceptance offlic rates wAiili
7 business days from the issuance of 1his proposal.
Pavments- Payments will be in accordance with the attached amortization sell edule. Please note if
alternative payment frequencies(i.e.quarterly,semiannual or annual)or changes to the
principal amounts dare on each payment date are requested,this may be accommodated but any
changes to the average life may also impact the rate quoted herein.
Insurance: Lessee may be required to provide,at its expense,casualty insurance(with such deductibles as
Lessor may approve)Lessor has the ability, if necessary, to obtaill and provide any insurance
certificate required.
Prepayment- Half term black out followed by prepayment at par with no penalty.
L-Averise Lessee and Lessor will each be responsible for their own legal and closing costs.
Escrow
Account: Lessee may deposit, subject to compliance with applicable regulations under the Internal
Revenue Code,including, but not limited to arbitrage regulations,the proceeds of the Lease in
an escrow arrangement acceptable to Lessor for a term not to exceed 3 years,and disbursements
made therefrom to pay for the Project upon the execution and delivery of an acceptance
certificate(and related documents)by Lessee and approved by Lessor.
Governmental
Entity Least.,; The Base Rent installments are calculated on the assumptions, and Lessee will represent, that
Lessee is a state or political subdivision of a state within the meaning of Section 103(c)of the
Internal Revenue Code(the"Code"),that this transaction will constitute an obligation of Lessee
within the meaning of Section 103(a)of the Code,notwithstanding Section 103(b)of the Code.
Lessee shall provide Lessor with such evidence as Lessor may request to substantiate and
maintain such tax status.
the filis ekt,04ment is an armor iengfh,copypwrcial transaction bermonyou undBanc qjAmerxxi Nblic Capital C*oy or one,
q(id,y subsjdiarfes or affiiiuees(Colh,"clael "BA PCC")in which.(i)BA PCC is aceirrA,'Wok,
'V� , 4y a5 a prhrcjruaf fl�e,,as a lender or femsor)andjbr its own in eei cw.flv,�
BAPCC is not aefing av a nun Pit,ipal ach4s o r or,finarruh2i adwyor royt)u'(iW BA PCC has nofiduciary dzq puywnoni to Secrion 15 B q/the Securities Exchange A cl
ef 191f to,y0a with respect t(i dfi.W truetyaction and the dacussions,underfakingi and proceelieres lcadip,%thereto(irrespective of whegher DA11CC or m7y offts
qffiflalus ha,,p... n,is 4Vnf4,ProWdmgoiher services tar you on (w)the 0011y obfig.6—BA11ccBaas to you ah respect to
this 10ansar-fion arc see forth in the dtfinilivu 0'ansaWonagmements hatween uyr and(v)BAPCC is noirreommending thur you take anac7ion wN mvimatlo Me
transaction deveribedin this docantenf,andbefure takhigany aciion 10th reypecl 10 Me shis ervolsaction,ymshoulddiscws the,injbrnposion consaine d herehi ivith
your civet'legal,accounding,taK,financial and 0sher wiviyfws,as you deem apirupriate, llyvti would like o pjuenco W ativisor in Addis rransacrton Oboe bas legal
fiduciary duties I&you,you arefiee to erigoge a manUlyal o&uor Fo serve in that ceipaci(v
Non-Appropriation
Termination: Lessee affirms that funds are available for the current fiscal year and reasonably believes that
sufficient funds can be obtained to make all rental payments during each subsequent fiscal year.
Lessee will regularly budget for and otherwise use its best efforts to obtain funds for the
continuation of the rentals in this transaction,
Documents- Lease documents in forth and substance satisfactory to Lessor and its local counsel must be
executed and delivered. If Lessor requests,Lessee will also furnish duly executed landlord and
mortgage waivers and supporting information, Lessee will also provide board resolutions,
incumbency certificates and other documentation required by Lessor.
Conditions
Precedent: If the vendor is receiving advance payments from the loan proceeds prior to delivery,then
BAPCC will receive a payment and performance bond from the manufacturer,also,BAPCC
will take assignment of the vendor contract which is,to be reviewed by our legal department,
Private
Placement: The proposed transaction is a private placement that will not require (i) any additional public
ongoing disclosure requirements, (ii) any additional public offering document generation
requirements,or(iii)any underwriting or related fees.
SEC Disclosure: Lessee acknowledges and agrees that,if,in connection with its,efforts to comply with the
requirements of SEC Rule l5c2-12(b)(5)of the Securities and Exchange Act of 1934,Lessee
decides to file any documentation related to the proposed transaction to EMMA (the
"DisclosedDoeuttnentv"),such Disclosed Documents shall be filed with redactions that will be
mutually agreed upon by the parties to ensure that there is no confidential inforrnation of
Lessor included in the posted documents(i.e.account information,names of signatories).
USA Patriot Act
Compliance: The 1,,,essee acknowledges that pursuant to the requirements of the USA Patriot Act,as amended
from time to time(including as amended by the USA Freedom Act of 2015)(the"Patriot Act"),
the Lessor is required to obtain,verify and record information that identifies the Lessee,which
information includes the name and address of the Lessee and other information that will allow
the Lessor to identify the Lessee in accordance with the Patriot Act.
Credit Due
Dilia-pee: In order to complete its credit due diligence, Bane of America Public Capital Corp Credit
Administration will need you to provide:
- Three years of most recent audited financial statements;
- Most recent fiscal year's Budget
- Insurance Certificate
The trwosveiaop descrbd i,,fhia dun ovw is an arm',N knfiOr,Commercial lownsatrion heonovenytou ao?d Rraoicao A merka Public Capital Corp or go Poo
Qf;(S wilsidiaric's orallihates g'c()Heclively, "BAPX")on which,(4)BAPCC is octitT soieiy em apnflapal(i e,as a lenoeo-rare lesqor anr far its owey iyotereaf (6
BAPO.-is mol actoog ay a m ao P;i6pal adviyor orfincuydap advisor to yo g,,,(itr,)BA PCC hx no fidtocwq duty P101suant fo&,vtpon 1.5 6 eV Me Sec oo ifies Acre
tL!f I 9J4 ro Wna 'm Wh YespXICI X0 M is ly-anyaction and the discussiamy,l w4ertaA in gy and jnmedvo es leadiny,,1her0.no,(Irrctvecrjve qfwpwrloer BAM Or any e#ots
fjfflhatc"v hm pro Vidood Other servocers dW is currend'vprovijing wherN ervices luwou on wh er noatfer.v)',r(ivL)the only o hl�gwiwos HAPCC has rojyju wifix r r�ViNoel to
this fmoisadion are sei,fiorth ho the d�,fintdve�Pvosaction heiKvew us,aful(v)BAKC 4v nW toweyou oth!m�4xNon with rnpact to the
transac(iuot de"clibedito Mis doeurpoem,andbejbre takrng wty action with rospea to the Mis you shazddchscusv the in1bonkaton with
YOu �wn r let"al acconNong yeor,j manbal and odwr mjvisors,as,,lou ode ern alof)rropriaie, ffyou vvvuld lihe a nowficipgI advisor in 11jis tranyactiun rhat/ua leval
fiduciary duties roywi,yov are,/ve to enpgw a nnlgficvpa.a advisor ro sarve lop Owt caf;Q(,'Wy,
AMQRTIZATION
Interest
Date Funding Payment @ 3.2591 Principal Balance
-----—---- ------------
4/28/2023 $52,000,000.00 $52,000,000.00
4/1/2024 $ 4,077,627.10 $ 1,567,627.10 $ 2,510,000,00 $49,490,000,00
10/1/2024 $ 806,46430 $ 806,464.30 $ - $49,490,000-00
4/1/2025 $ 3,606,464,30 $ 806,464.30 $ 2,800,000.00 $46,690,000.00
10/112025 $ 760,836.90 $ 760,836.90 $ - $46,690,000.00
4/1/2026 $ 3,66,0,836.90 $ 760,836.90 $ 2,900;000,00 $43,790,000.00
1011/2026 $ 713,,5179.95 $ 713,579.95 $ - $43,790,000.00
4/1/2027 $ 3,713,579.95 $ 713.579.95 $ 3,000,000.00 $40,790,000.00
10/1/2027 $ 664,693.45 $ 664,693.45 $ - $40,790,000M
4/1/2028 $ 3,769,693,45 $ 664,693.45 $ 3,105,000.00 $37,685,000-00
10/1/2028 $ 614,095.92 $ 614,095.92 $ - $37,685,000.00
4/112029 $ 3,829,095.92 $ 614,095.92 $ 3,215,000.00 $34,470,000-00
10/1/2029 $ 561,705.89 $ 561,705,89 $ - $34,470,000.00
4/112030 $ 3,886,705.89 $ 561,705-89 $ 3,325,000.00 $31,145,1000,00
10/1/2030 $ 507,523,35 $ 507„523.35 $ - $31,146,000.00
411/2031 $ 3,947,523.35 $ 507,523.35 $ 3,440,000-00 $27,705e000.00
10/112031 $ 451,466.83 $ 451,466.83 $ - $27,705,000.00
4/112032 $ 4,011,466.83 $ 451,466.83 $ 3,560,000-00 $24,145,000.00
10/112032 $ 393,454.85 $ 393,454.85 $ - $24,145,000-00
4/1/2033 $ 4,078,454,85 $ 393,454.85 $ 3,685,000-00 $20,460,000.00
10/1/2033 $ 333,405.93 $ 333,405.93 $ - $20,460,000.00
4/112034 $ 4,148,405.93 $ 333,405.93 $ 3,815,00,0.00 $16,645,000.00
10/1/2034 $ 271,238.60 $ 271,238.60 $ $16,645,000.00
4/112035 $ 4,221,238.60 $ 271,238.60 $ 3,950,000.00 $12,695,000-00
10/1/2035 $ 206,871.37 $ 206,871,37 $ - $12,695,000.00
4/112036 $ 4,291,871.37 $ 206,871.37 $ 4,085,000.00 $ 8,610,000.00
10/1/2036 $ 140,304,26 $ 140,304.26 $ - $ 8,610,000m
4/1/2037 $ 4,370,304.26 $ 140,304,26 $ 4,230,000-00 $ 4,380,000.00
10/1/2037 $ 71,374.29 $ 71,374.29 $ - $ 4,380,000M
4/1/2038 $ 4,451,374.29 $ 71,374.29 $ 4,380,000.00 $
------- -------—-- --—-------
$52,000,000.00 $66,561,658.80 $14,561,658-80 $52,000,000.00
The trejasarlcwd dgwcribcd ioa this due-ument is an urrn'x length,coff1wrvial graax=iorp hulwecn you andBane ol"Arnerica Public Capiial Coep or wk,
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i
E[oA sal
Monroe County, Florida —2023 Equipment Lease/Purchase (Helicopter) Financing
The Lender(the "Lessor," "Barak," or "Lender") hereby agrees to extend a lease/purchase
financing (the"Lease')�" to Monroe County, Florida (the "County") subject to the terms and
conditions set forth in the Request for Proposals(the "RFR"),dated March 1, 2023, which
is attached hereto and incorporated herein by this reference. By submitting this proposal,
the Lender agrees to be legally bound to such terms from the dater of this Proposal to the
Closing Date of the Lease.
Interest Rate
The County shall only consider proposals which clearly express the fixed rate of interest.
and/or the method of setting such rate of interest and the maximum rate of interest to be
charged during the full term of the Lease.
Fixed Rate of Interest with Maturity on April 1 201 8 r
A fixed, non-bank qualified, tax-exempt rate of interest equal to . 2 s I i% per annurn for
the term of the Lease..
Cost Expenses
The Lender shall request the reimbursement of its legal fees in an amount not to exceed
$ . r .
Lender Counsel
The Lender is requested to list the name of at least two firms who may represent it as
Len is counsel.
}�a _C yy L
Prepayment Option
If there is any prepayment penalty associated with the proposed financing please detail
the conditions below:
N
wcC �A
e 7 1 Mr Y
N �I
` q1c ". Cvt
The Lender acknowledges that the County reserves the right to reject any and all
proposals received in connection with the RFP. The Lender also acknowledges that the
County has no responsibility and has no liability whatsoever for any costs incurred by
the Lender in preparing or submitting this response,
Resectfudly Ala fitted
iNare of Lehd'er]
✓" r�
lhordzed Cffi
[typed or printed name Of officer]
Date; 3 12.o.)2,-5
Address:
[Address for Correspondence]
Tel.No„ _ " s - () L1
[Telephone Number]
Fax No.
[Pax Number] ,
Email
ACCEPTED this day of
2023
M,ONROE COUNTY, FLORIDA
By
Authorized Officer
Q
Exhibit B
See Master Equipment Lease/Purchase Agreement
Exhibit C
See Escrow Agreement
Exhibit D
See Aircraft Addendum
INCUMBENCY AND AUTHORIZATION CERTIFICATE
The undersigned, the duly appointed and acting Senior Assistant County Attorney of
Monroe County, Horida (-Lessee") certifies as follows.,
A. The following listed persons are duly elected or appointed and acting officials of
Lessee (the "Oj.ficials") in the capacity set forth opposite their respective names below and the
facsimile signatures below are true and correct as of the date hereof; and
B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and
deliver Equipment Schedule No. I dated May 19, 20,23 (the "Schedide") to that certain Master
Equipment Lease/Purchase Agreement, dated as of May 19, 2023 (the "Agreement")and separate
Schedules relating thereto from time to tirne as provided in the Agreement (collectively, the
"Scheelule.y"), each by and between Lessee and Banc of Arnerica Public Capital Corp("Lessor"),
the Escrow Agreement dated as of May 19, 2023, by and among Lessor, Lessee and TMI Trust
Company, as Escrow Agent, all documents related thereto and delivered in connection therewith,
and any future modification(s)or amendments thereof(collectively,the "Operative Agp eement.g"),
and the Operative Agreements are binding and authorized agree gents of Lessee,enforceable in all
respects in accordance with their respective terms.
Name of Official Title Signature
Craig Cates Mayor
Roman Gastesi County Administrator
Parnela J. Radloff Deputy Clerk
Kevin Madok Clerk of the Circuit Court
D�ated: May 19, 2023 By:
Name-, Pedro Mercado
Title: Senior/Assistant County Attorney
L
(The signer of this Certificate cannot be listed above as authorized to execute the Operative Agreements)
69161684.0
INCUMBENCY CERTIFICATE
1, Liz Yongue, the undersigned Deputy Clerk of the Circuit Court of Monroe
County, Florida (the "County") and Ex-Officio Deputy Clerk to the Board of County
Commissioners (the "Board") of the County, am delivering this Certificate relating to the
execution by the County of the Master Equipment Lease/Purchase Agreement, dated as of
May 19, 2023, between the County and Banc of America Public Capital Corp. (the
"Agreement"). I hereby certify, to the best of my knowledge, as follows:
1. The following are now, and have continuously been since the dates of
beginning of their respective current terms shown below, the duly appointed or elected (as
the case i-nay be), qualified and acting members of the Board of County Commissioners of
the County, and the dates of the beginning and ending of their respective current terms are
hereunder correctly designated opposite their names:
Beginning Date Ending Date
Member of Current Term of Current Tenn
Craig Cates, Mayor November 2020 November 2024
Michelle Lincoln November 2022 November 2026
Holly Merrill Raschein November 2022 November 2026
David Rice November 2022 November 2026
James K. Scholl November 2022 November 2026
3. The following are now, and have continuously been since the dates of
beginning of their respective current terms of office shown below, the duly appointed or
elected (as the case may be), qualified and acting officers of the County and the dates of
the beginning and ending of their respective current terms of office are hereunder correctly
designated opposite their names:
Beginning Date Ending Date
Office Name of Current Term of Current Tenn
Mayor Craig Cates November 2022 November 2023
Clerk Kevin Madok January 2021 January 2025
Deputy Clerk Liz Yongue March 7, 2022 At discretion of Clerk
[Remainder of page intentionally left blank]
IN 'FITNESS 'WHEREOF, I have hereunto set my hand and affixed the official
seal of the County the lath day of May, 2023.
Kevin Madok, Clerk of the Circuit Court and
Comptroller in and for Monroe County, Florida
and Ex-Officio Clerk to the Board of County
4 Commissioners of Monroe County, Florida
Lip onue, le ltyCl[erk �-
CERTIFICATE AS TO SIGNATURES
We, the undersigned, DO HEREBY CERTIFY as follows:
1, That we did heretofore cause to be officially executed the Master Equipment
Lease/Purchase Agreement, dated as of May 19, 2023, between Monroe County, Florida
(the "County") and Banc of America Public Capital Corp and other documents and
certificates related thereto (collectively, the "Agreements").
2. That Craig Cates, Mayor of the Board of County Commissioners (the
"Board") of the County, has executed the Agreements by his manual signature, and said
Mayor was on the date he executed the Agreements and is now the duly elected, qualified
and acting Mayor of the County.
3. That Roman Gastesi, County Administrator of the County, has executed
certain of the Agreements, and that said County Administrator was on the date he signed
such Agreements, and is now a duly qualified and acting County Administrator,
4. That Kevin Madok, Clerk of the Circuit Court and Comptroller in and for the
County and Ex-Officio Clerk to the Board, has executed certain of the Agreements, and
that said Clerk was on the date he signed such Agreements, and is now a duly qualified and
acting Clerk.
5. That Liz Yongue, Deputy Clerk of the Circuit Court for the County and Ex-
Officio Deputy Clerk to the Board, has executed certain of the Agreements, and that said
Clerk was on the date he signed such Agreements, and is now a duly qualified and acting
Clerk.
6. That the seal which has been impressed on or otherwise reproduced on
certain of the Agreements and upon this certificate is the legally adopted, proper and only
seal of the County.
IN WITNESS WHE EOF,we have hereunto set our hands and affixed the official
aunty as of the I )th day of May, 2023,
Signature Title of Office Term of Office Expires
Mayor November 2023
County Administrator At Discretion of Board
Clerk January 2025
CRyy Deputy Clerk At Discretion of Clerk
CERTIFICATE OF MONROE COUNTY, FLORIDA
We, Craig Cates, Mayor of the Board of County Commissioners of Monroe County,
Florida (the "County") and Roman Gastesi, County Administrator, are delivering this
Certificate relating to the execution by the County of the Master Equipment
Lease/PUrchase Agreement, dated as of May 19, 2023, between the County and Bane of
America Public Capital Corp, and certain other agreements related thereto (collectively,
the "Agreements"). We hereby certify, to the best of our knowledge, as follows:
1. The County has complied or is presently in compliance with all agreements
related to the Agreements and has satisfied all conditions on its part to be observed or
satisfied under the Agreements and resolution 'No. 149-2023 adopted by the County on
April 19, 2023.
2, The representations, warranties, covenants and agreements of the County
contained in the Agreements and the Resolution are true and correct in all respects on and
as of the date hereof as if made on the date hereof.
1 The County is not presently in default nor has it been in default since
December 31, 1975 as to the payment of principal or interest with respect to any obligations
issued by it.
4. There is no litigation pending or threatened (A) to restrain or enjoin the
execution or delivery of any of the Agreements, (13) in any way contesting or affecting any
authority for the execution and delivery of the Agreements or the validity of the Resolution
or the Agreements, (C) in any way contesting the existence or powers of the County, (D)
to restrain or enjoin the collection of any revenues to be used to pay the Rental Payments
(as defined in the Agreements), or(E)which may result in any material adverse change in
the business, properties, assets or the financial condition of the County taken as a whole.
5. The County is not in material breach of or material default under any
applicable constitutional provision, law or administrative regulation of the State or the
United States or any applicable judgment or decree or any loan agreement, indenture,bond,
note, material resolution, material agreement or other material instrument to which the
County is a party or to which the County or any of its property or assets is otherwise subject,
and no event has occurred and is continuing that with the passage of time or the giving of
notice, or both, would constitute a default or event of default under any such instrument;
and the execution and delivery of the Agreements and the adoption of the Resolution and
compliance with the provisions on the County's part contained therein, will not conflict
with or constitute a material breach of or default under, any constitutional provision, law,
administrative regulation, judgment, decree, loan agreement, indenture, bond, note,
resolution., agreement or other instrument to which the County is a party or to which the
County or any of its property or assets is otherwise subject, and any such execution,
delivery, adoption or compliance will not result in the creation or imposition of any lien,
charge,or other security interest or encumbrance of any nature whatsoever upon any of the
property or assets of the County under the terms of any such ordinance, law, regulation or
instrument, except as expressly provided by the Resolution or the Agreements.
6. The interest rate described in the Agreements shall be in compliance with the
maximum interest rate provisions contained in Section 215.84, Florida Statutes.
IN WITNESS WHEREOF, we have hereunto set our hands, as of the 19th day of
May, 2023.
MONROE COUNTY, FLORIDA
By:
Mayor, oard I of County Commissioners
By:
County Administrator
2
CERTIFICATE AS TO ARBITRAGE AND CER'FAIN arlIER TAX MATTERS
1, the undersigned Mayor of the Board of County Commissioners of Monroe County,
Florida(the "County"), do hereby certify that this Certificate is issued pursuant to Sections 1.14 1-
I through 1,141-16, 1.148-0 through 1.148-11, 1.150-1 and 1,150-2 of the Treasury Regulations
(the "Regulations")promulgated pursuant to the Internal Revenue Code of 1986, as amended (the
"Code"), to set forth the County's reasonable expectations on the date of issue of the obligations
of the County under that certain (1)the Master Equipment Lease/Purchase Agreement dated as of
May 19, 2023 (the "Master Lease/Purchase Agreement"), between the County and Bane of
America Public Capital Corp (the "Lessor"), and (2) Equipment Schedule No. 1, dated May 19,
2023, between the County and Bane of America(the "Equipment Schedule" and together with the
related Payment Schedule attached thereto and the Agreement, the "Agreement."
and (3) the Escrow Agreement dated as of May 19, 2023 (the "Escrow Agreement"), by
and among the County,Banc of America,TMI Trust Company,as Escrow Agent, The Agreement,
the Equipment Schedule, the Payment Schedule, the Escrow Agreement and the documents
relating thereto are herein collectively referred to as the "Transaction Documents."
Lease/Purchase Agreement (as hereinafter defined) and as to future events regarding the amount
and use of the proceeds thereof, and (4) an executed counterpart of
The Agreement
1.. "I'lle, undersigned is charged, together with other officials and officers, with the
responsibility for entering into the Agreement, which is authorized pursuant to laws of the State
of Florida, and Resolution No. 149-2023 adopted by the Board of County Commissioners of the
County on April 19, 2023, (the "Resolution"). This certificate shall constitute a document related
to the Agreement.
2, The Agreement is being entered into to finance the cost of purchasing certain
Equipment (as such term is defined in the Agreement and described in the Equipment Schedule)
and related costs of issuance in the amount of $53,000,000.00 ("Equipment Proceeds"). The
Equipment will be used for public purposes of the County. Capitalized terms, not defined herein
shall have the meaning assigned to such terms in the Agreement.
Proceeds
3. 'fhe Equipment Proceeds shall be used for the acquisition of the Equipment and to
reimburse the County for the cost of purchasing the Equipment in an amount not exceeding
$100,000 for payment of a$150,000 deposit which occurred more than sixty(60)days prior to the
adoption of the Resolution and/or to also reimburse the County for the cost of purchasing portions
of the Equipment which did not occur more than sixty (60) days prior to the adoption of the
Resolution by the County and to pay expenses related to the issuance of the Agreement. As
contemplated by the Agreement, the Lessor will fund the Equipment Proceeds to TMI Trust
Company, as escrow agent (the "Escrow Agent"), under that certain Escrow Agreement dated as
17. The County shall file or cause to be filed, the requisite: Form 8038-G on or before
the 15"' day of the second month after the calendar quarter in which the Agreement is executed.
The County has reviewed the Form 803 8-G prepared for the Agreement and all of the information
contained therein is,to the best of the County's knowledge, true and complete.
18. At least 85% of the net Equipment Proceeds of the Agreement will be allocated to
expenditures for the Equipment no later than three years from the date hereof and therefore not
more than 50% of the proceeds of the Agreement will be invested in nonpurpose investments (as
defined in Section 148(f)(6)(A)of the Code)having a substantially guaranteed yield for four years
or more.
19. The County has,not received notice of deficiency or other notice from the Intemal
Revenue Service, the Department of'Treasury or any other governmental agency or department
challenging or questioning in any way the status of the interest portion of the Rental Payments as
being excludable from gross income for federal income tax purposes, nor has the County been
notified of any listing or proposed listing of it by the Internal Revenue Service as an issuer that
may not enter into the type of lease/purchase transaction as contemplated here.
On the basis of the: foregoing facts, estimates and circumstances in existence on the date
hereof it is not expected that the proceeds of the Agreement will be used in a manner that would
cause the Agreement to be "arbitrage bonds" under Section 148 of the Code and the Regulations.
To the best of our knowledge and belief there are no other facts,estimates or circumstances which
would materially change such expectations.
Dated as of the 19th day of May, 2023 the same being the date of delivery of and payment
for the Agreement.
IN wiTNESS WHEREOF, I have hereunto set my hand.
MONROE COUN'I'Y,FLORIDA
By:
Name: Orai * tes
Title: Mayor, Board of County Conunissioners
4
Form 8038-G Information Return for Tax-Exempt Governmental Bonds
(Rev.October 2021) ►Under Internal Revenue Code section 149(e)
►See separate instructions. OMB No.1545-0047
Department of the Treasury Caution:If the issue price is under$100,000,use Form 8038-GC.
Internal Revenue Service ►Go to www.irs.gov/F8038G for instructions and the latest information.
Reporting Authority Check box if Amended Return► ❑
1 Issuer's name 2 Issuer's employer identification number(EIN)
Monroe County, Florida 59-6000749
3a Name of person(other than issuer)with whom the IRS may communicate about this return(see instructions) 3b Telephone number of other person shown on 3a
Steven E. Miller, Bond Counsel 813/281-2222
4 Number and street(or P.O.box if mail is not delivered to street address) Room/suite 5 Report number(For IRS Use Only)
c/o Nabors, Giblin& Nickerson, P.A., 2502 N. Rocky Point Drive 1060 3
6 City,town,or post office,state,and ZIP code 7 Date of issue
Tampa, Florida 33607 05/19/2023
8 Name of issue 9 CUSIP number
Monroe County,Florida Master Equipment Lease/Purchase Agreement None
10a Name and title of officer or other employee of the issuer whom the IRS may call for more information 10b Telephone number of officer or other
Oa
Kevin Madok, Clerk of Circuit Court employee shown on 305/292-3-3550
FUTM Type of Issue (Enter the issue price.)See the instructions and attach schedule.
11 Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12 Health and hospital . . . . . . . . . . . . . . . . . . . . . . . . . . 12
13 Transportation . . . . . . . . . . . . . . . . . . . . . 13
14 Public safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 53,000,000.00
15 Environment(including sewage bonds) . . . . . . . . . . . . . . . . . . . . 15
16 Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
18 Other. Describe► 18
19a If bonds are TANS or RANs,check only box 19a . . . . . . . . . . . . . . . ► ❑
b If bonds are BANS,check only box 19b . . . . . . . . . . . . . . . . . . ► ❑
20 If bonds are in the form of a lease or installment sale,check box . ► ✓
Description of Bonds.Complete for the entire issue for which this form is being filed.
(a)Final maturity date (b)Issue price (c)Stated redemption (d)Weighted (e)Yield
price at maturity average maturity
21 04/01/2038 $53,000,000.00 $53,000,000.00 8.43 years 3,2595 %
LiEM Uses of Proceeds of Bond Issue(including underwriters' discount)
22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . . . . 22 0.00
23 Issue price of entire issue(enter amount from line 21,column(b)) . . . . . 23 53,000,000.00
24 Proceeds used for bond issuance costs(including underwriters'discount) 24 0.00
25 Proceeds used for credit enhancement . . . . . . . . . . . . 25 0.00
26 Proceeds allocated to reasonably required reserve or replacement fund 26 0.00
27 Proceeds used to refund prior tax-exempt bonds.Complete Part V . . . 27 0.00
28 Proceeds used to refund prior taxable bonds.Complete Part V . . . . 28 0.00
29 Total(add lines 24 through 28) . . . . . . . . . . . . . . . . . . . . . . . 29 0.00
30 Nonrefunding proceeds of the issue(subtract line 29 from line 23 and enter amount here) 30 53,000,000.00
Description of Refunded Bonds.Complete this part only for refunding bonds.
31 Enter the remaining weighted average maturity of the tax-exempt bonds to be refunded . . . IN, NIA years
32 Enter the remaining weighted average maturity of the taxable bonds to be refunded . . . . ► N/A years
33 Enter the last date on which the refunded tax-exempt bonds will be called(MM/DD/YYYY) ► N/A
34 Enter the date(s)the refunded bonds were issued►(MM/DD/YYYY) N/A
For Paperwork Reduction Act Notice,see separate instructions. Cat.No.63773S Form 8038-G(Rev.10-2021)
Form 8038-G(Rev.10-2021) Page 2
IdllScellaneOUS
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
(GIC).See instructions . . . . . . . . . . . . . . . . . . . . . . . . . 36a
b Enter the final maturity date of the GIC (MM/DD/YYYY)
c Enter the name of the GIC provider
37 Pooled financings: Enter the amount of the proceeds of this issue that are to be used to make loans
to other governmental units . . . . . . . . . . . . . . . . . . . . 37
38a If this issue is a loan made from the proceeds of another tax-exempt issue,check box► ®and enter the following information:
b Enter the date of the master pool bond (MM/DD/YYYY)
c Enter the EIN of the issuer of the master pool bond Po-
d Enter the name of the issuer of the master pool bond
Ro-
39 If the issuer has designated the issue under section 265(b)(3)(B)(i)(III)(small issuer exception),check box
40 If the issuer has elected to pay a penalty in lieu of arbitrage rebate,check box . . . . . . . . . . . .
41a If the issuer has identified a hedge,check here 11i and enter the following information:
b Name of hedge provider Do-
c Type of hedge
Dl-
d Term of hedge
42 If the issuer has superintegrated the hedge,check box . . . . . . . . . . . . . . . .
43 If the issuer has established written procedures to ensure that all nonqualified bonds of this issue are remediated
according to the requirements under the Code and Regulations(see instructions),check box . . . . . . . ❑
44 If the issuer has established written procedures to monitor the requirements of section 148, check box . . . . ❑
45a If some portion of the proceeds was used to reimburse expenditures,check here 0. 21and enter the amount
of reimbursement . . . . . . . . . . $100,000.00
b Enter the date the official intent was adopted (MM/DD/YYYY) de minimis exception per Section 1.150-2(f)(1)
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.I further declare that I consent to the IRS's disclosure of the issuer's return information,as necessary to
Signature process this return,to the;perDsonhat I ave authorized above.
and
Consent 05/19/2023 Craig Cates,Mayor
Signature of-iissu§Mauthorized representative Date Type or print name and title
Paid Print/Type preparer's name _ t!2�_
t Date Check ❑ if PTIN
Steven E. Miller, Esq. T/& ""._ 05/19/2023 self-employed P01236498
reparer
Use Only Firm's name Ir Nabors,Giblin&Nickerson,P.A. Firm's EIN►59-2427540
Firm's address P.2502 N.Rocky Point Drive,Suite 1060,Tampa,Florida 33607 Phone no.813/281-2222
Form 8038-G(Rev.10-2021)
BC3A1t[)OF C C t,J r1'C"C "I)IISSIONLRS,
CountyFlorida l one e" �� �� ,, 4 Mayor C"r"�Cates, District 1
rya Mayor Pro Tern 1'1olly MemiII Kaschein,District 5
The Keys ��t fa�,�� t Michelle Lincoln,District 2
�r 1 l' Ja"ayes K, Scholl„'C.tistriet
Robert k.Sbilling,er,C aunty Attorney*'* r ' � David Rice,District 4
Pedro J,Mercado,Sr.Assistant County Attomey *
Cyntbia L. Hall„Sr Assistant County Attorney**
Christine 1-fin aert-Barrows,Assistant County Attorney** Office of the County Attorney
Derek V. Howard,Assistant County Attorney** 1111 1211 Street,Suite 408
Peter H. Mon-is,Assistant County Attorney Key West,FI, 33040
Patricia Fables,Assistant County Attorney (305)292-3470 Office
Joseph X. DiNovo„Assistant County Attorney** (305)292-3516 Fax
Kelly Dugan,Assistant County Attorney
Christina.Cory,Assistant County Attorney
Nathalia Archer„Assistant County Attorney
** Board Certified i"1 City,Crrunty&Local Govt.Lawn
May 19, 2023
Board of County Commissioners
of Monroe County, Florida
Key West, Florida
Banc of America Public Capital Corp
1:..lunt Valley, Maryland.
Re: Master Equipment Lease/Purchase Agreement dated as of May 1.9, 2023,
between Monroe County, Florida and Bane of Anmerica.Public Capital Corp
Ladies and Gentlemen:
I am time Senior Assistant County .Attorney for Monroe County, Florida, a political
subdivision of the state of Florida(the"'County"), and am providing this opinion in connection.
with the execution and delivery by the County of the Master Equipment Lease/Purchase
Agreement dated as of May 19, 2023 (the "Lease/Purchase Agreement"), between tile County
and Bane of America Public Capital Corp("Banc of America"),(2)Equipment schedule No. 1,
dated. May 1.9, 2023, between the County and Banc of Amnerica, which incorporates by
reference the terms and provisions of the Lease/Purchase Agreemnent (such Equipment.
Schedule No. 1 together with such incorporated terns and provisions are herein referred to
collectively as the "Equipment Schedule") and the related.Payment Schedule attached thereto
(the "Payment Schedule"), (3) the Escrow Agreement dated as of May 19, 0:23 (the"Escrow
Agreement"), by and aniong the County, Bane of America, TMI Trust Company, as Escrow
Agent, and (4) an executed counterpart of Resolution No. 149-2023 adopted by the Board of
County Commissioners of the County" on April 19, 2023, with respect to authorization of the
transactions contemplated by the Lease/Purchase Agreement, the Equipment Schedule, the
Escrow Agreement and documents related thereto (the "Resolution"). The Lease,/Purchase
Agreemnent., the Equipment Schedule, the Payment Scbedule, the Escrow Agreement and the
documents relating thereto are herein collectively referred to as the"Transaction Documents."
I have reviewed the Transaction Documents and such other opinions, ordinances,
resolutions, documents and matters of law as I have deemned necessary in connection with the
following opinions. Based on the foregoing, under existing Florida law, I am of the opinion
that:
1. The County is a duly created and validly existing political subdivision of the
State of Florida and had and has good right and lawful authority under the Constitution and
Z�
laws of the State to adopt the Resolution and enter into the Transactions Documents.
2. The County has time requisite power and authority to lease and acquire the
equipment described and listed in the Equipment Schedule (the "Equipment") arid to execute
and deliver the 'I"ransaction Documents and to perfonn its obligations under the Transaction
Documents,
I The Transaction Documents have been duly authorized, approved, executed
and delivered by and on behalf of the County and, assuming the due authorization, execution
and delivery of the Transaction Documents by the other parties thereto, the Transaction
Documents are legal, valid and binding obligations of Lessee, enforceable against the County
in accordance with their respective terms.
4. The authorization, approval, execution and delivery of the Transaction
Documents and all other proceedings of the County relating to time transactions contemplated
thereby have been performed in accordance with all open meeting laws, procurement and
public bidding laws and all other applicable State or Federal laws.
5. There is no proceeding pending or, to the best of my knowledge, threatened, in
any court or before any govemmental authority or arbitration board or tribunal that, if adversely
deten-nined, would adversely affect the transactions contemplated by the Transaction
Documents or the interest of the Banc, of America or its assigns, as the case may be, in the
Equipment under the Lease/purchase Agreement or the Escrow Account (as defined in the
Escrow Agreement).
All of the above opinions as to enforceability of the legal obligations of the County are
subject to and limited by bankruptcy,insolvency, reorganization,moratorium and similar laws,
in each case relating to or affecting the enforcement of creditors' rights generally, and other
general principles of equity.
very Jilily yours,
ex.
/..........
Pedro I Mer6a&
Sr. Asst. County Attorney
TALLAHASSEE
1500 Mahan Drive
Suite 200
TAMPA Nabors Tallahassee,Florida 32308
2502 RoclW Point Drive (85O)22"070 Tel
Suite 1060 (850 4)224- 073 Fax
Tampa,Florida 33607 G*1 b lin &) ,
(813)2,81-2222 Tel 0 PLANTATION
(813)281-0129 Fax PA 8201 Peters Road
Niekersu� Suite 1000
Plantation,Florida 33324
(954)315-0268 Tel
May 19, 2023
Board of County Commissioners
of Monroe County, Florida
Key West, Florida
Bane of America Public Capital Corp
Hunt Valley, Maryland
Commissioners:
We have examined a record of proceedings relating to the execution by Monroe
County, Florida (the "County") of(1) the Master Equipment Lease/Purchase Agreement
dated as of May 19, 2023 (the "Master Lease/Purchase Agreement"), between the County
and Banc of America Public Capital Corp (including any assignee, the "Lessor"), (2)
Equipment Schedule No. 1, dated May 19, 2023, between the County and the Lessor (the
"Equipment Schedule") and (3) the related Payment Schedule attached to the Equipment
Schedule (the "Payment Schedule" and together with the Master Lease/Purchase
Agreement and the Equipment Schedule, the "Agreement"). The Agreement is executed
and delivered pursuant to the Laws of the State of Florida, including, particularly, Chapter
125, Florida Statutes, and other applicable provisions of law (the "Act"), and pursuant to
Resolution No. 149-2023 adopted by the Board of County Commissioners of the County
(the "Board") on April 19,, 2023 (the "'Resolution").The Agreement is being entered for the
principal purpose of lease-purchasing certain equipment described in the Equipment
Schedule from the Lessor (the "Equipment").
The County is obligated to make Rental Payments (as defined in the Agreement) in
the manner, at the times and in the amounts set forth in the Agreement. The County's
payment obligations under the Agreement shall not be deemed to constitute a debt or a
pledge of the faith and credit of the County, the State of Florida or any other political
subdivision or local governmental entity thereof within the meaning of any constitutional,
legislative provision or limitation and the Lessor shall never have the right, directly or
indirectly, to require or compel the exercise of the ad valorem taxing power of the County
or any political subdivision or local governmental entity of the State of Florida or taxation
Board of County Commissioners of May 19, 2023
Monroe County, Florida
Banc of America Public Capital Corp
Page 2
in any form on any real or personal property for the payment of the Rental Payments or for
any payment of any other amounts provided for in the Agreement.
As to questions of fact material to our opinion, we have relied upon the
representations contained in the Resolution and the Agreement and in the certified
proceedings relating thereto and to the execution and delivery of the Agreement and other
certifications of public officials furnished to us in connection therewith without
undertaking to verify the same by independent investigation. Furthermore, we have
assumed continuing compliance with the covenants and agreements contained in the
Resolution and the Agreement. We have not undertaken an independent audit,
examination, investigation or inspection of the matters described or contained in any
agreements, documents, certificates, representations and opinions relating to the
Agreement, and have relied solely on the facts, estimates and circumstances described and
set forth therein. In Our examination of the: foregoing, we have assumed the genuineness
of signatures on all documents and instruments, the authenticity of documents submitted
as originals and the conformity to originals of documents submitted as copies.
Based upon the foregoing, under existing law, we are of the opinion that:
1. The County is a duly created and validly existing political subdivision of the
State of Florida within the meaning of Section 103(c) of the Internal Revenue Code of
1986, as amended (the "Code") and the regulations promulgated thereunder and the
Agreement will constitute a State or local bond within the meaning of Section 103 of the
Code, notwithstanding Section 103(b) of the Code.
2. The County has the right and power under the Constitution and Laws of the
State of Florida to execute and deliver, the Agreement and adopt the Resolution, and the
Agreement has been executed and delivered by the County and the Resolution has been
duly and lawfully adopted by the Board, each is in full force and effect in accordance with
its respective terms and is valid and binding upon the County and enforceable in
accordance with its respective terms, and no other authorization for the Agreement or the
Resolution is required.
3. The County's obligations under the Agreement do not constitute a general
indebtedness of the County, or the State of Florida or any agency, department or political
subdivision or local government thereof, or a pledge of the faith and credit of such entities,
but are payable solely from legally available revenues of the County budgeted and
appropriated by the County in accordance with the Agreement. 'The Lessor shall never
have the right to compel the exercise of any ad valorem taxing power of the County or the
Board of County Commissioners of May 19, 2023
Monroe County, Florida
Banc of America Public Capital Corp
Page 3
State of Florida or any agency, department or political subdivision thereof to make any
payments under the Agreement.
4. Under existing statutes, regulations, rulings and court decisions, prior to
termination of the Agreement resulting from an Event of Non-appropriation or Event of
Default thereunder(as such terms are defined in the Agreement), the interest portion of the
Rental Payments relating to the Agreement under the Equipment Schedule will (a) be
excluded from gross income for federal income tax purposes and (b) not be an item of tax
preference for purposes of the federal alternative minimum tax; provided, however, with
respect to certain corporations, the interest portion of such Rental Payments is taken into,
account in determining the annual adjusted financial statement income for the purpose of
computing the alternative minimum tax imposed on corporations for tax years beginning
after December 31, 2022. The opinions in this paragraph are subject to the condition that
the County comply with all requirements of the Code that must be satisfied subsequent to
the date of the Agreement in order that the interest portion of the Rental Payments be (or
continues to be) excluded from gross income for federal income tax purposes. Failure to
comply with certain of such requirements could cause the interest portion of the Rental
Payments to be so included in gross income retroactive to the date of the Agreement. The
County has covenanted in the Agreement and other certificates delivered on the date hereof
to comply with all such requirements. There may be collateral federal tax consequences to
the Lessor as a result of its entering into the Agreement. We express no opinion regarding
such federal tax consequences, arising with respect to the Agreement.
We express no opinion regarding the federal income tax or Florida tax consequences
resulting from the receipt by the Lessor of the interest portion of the Rental Payments
following termination of the Agreement resulting from an Event of Non-appropriation or
Event of Default thereunder.
The opinions expressed in paragraph 2 hereof are qualified to the extent that the
enforceability of the Agreement may be limited by any applicable bankruptcy, insolvency,
moratorium,reorganization or other similar laws affecting creditors"rights generally, or by
the exercise of judicial discretion in accordance with general principles of equity.
Furthermore, as such opinions in paragraph 2 relate to the Agreement we are assuming the
due authorization and execution of the Agreement by the Lessor.
It should be noted that we have not been engaged or undertaken to review (1) the
accuracy, completeness or sufficiency of any offering statements or other disclosure
material with respect to the Agreement and we express no opinion relating thereto, and
(2) the compliance with any federal or state law with regard to the execution or delivery
of the Agreement and we express no opinion relating thereto.
Board of County Commissioners of May 19, 2023
Monroe County, Florida
Banc of America Public Capital Corp
Page 4
The opinions set forth herein are expressly limited to, and we opine only with
respect to, the laws of the State of Florida and the federal tax laws of the United States of
America. The only opinions rendered hereby shall be those expressly stated as such herein,
and no opinion shall be implied or inferred as a result of anything contained herein or
omitted herefrom.
This opinion is given as of the date hereof and we assume no obligation to update,
revise or supplement this opinion to reflect any facts or circumstances that may hereafter
come to our attention or any changes in law that may hereafter occur.
No attorney-client relationship has existed or exists between our firm and the Lessor
or any of its related entities in connection with the Agreement and by virtue of our opinion.
Respectfully submitted,
0000057 0�2�09�22
---- -------
DR-14
Consumer's Certificate of Exemption R.01/18
9j Issued Pursuant to Chapter 212, Florida Statutes
FLORIDA
................................
85801 38,2-5294C-7 03131/2022 03,13112027 COUNTY GOVERNMENT
................................................................. ....................................... ....................................... .......... ............................................
...............................................................___-
Certificate Number Effective Date Expiration Date ExempWn Category
This certifies that
MONROE COUNTY BOARD OF COUNTY
COMWS&ONERS
1100 SIMONTON ST
KEY WEST FL 33040-3110
is exempt from the payment of Rorida sales and use tax on real property rented, transient rental property rented, tangible
personal property purchased or rented, or services purchased.
..........
C�ortantln'formation for ExemtOrganiza�ions DR1/-1
.. . ....... 184
FLORIDA
1. You must provide all vendor's and suppliers with an exerription certificate before making tax-exempt purchases,,
See Rule 12A-1.038, Flo6da Administrabve Code(FA. .).
2. Your Consumer's Certificate of ExernptiO17 is to be used solely by your organization for your organization's
customary nonprofit activities.
3. Purchases made by an individual on behalf of the organ zation are taxable, even if the individual will be
reimbursed by the organization.
4. This exemption applies only to purchases your organization makes. The sale or lease to others of tangible
personal property, sleeping accommodations, or other real property is taxable. Your organization must register,
and collect and remit sales and use tax on such taxable transactions. Note: Churches are exernpt from this
requirement except when they are the lessor of real property(Rule 12A.-1.070, FA.C.).
5. It is a criminal offense to fraudulently present this certificate to evade the payment of sales tax. Under no
circumstances should this certificate be used for the personal benefit of any individual. Violators will be liable for
payrnent of the sales tax plus a penalty of 200% of the tax, and may be subject, to conviction of a third-degree'
felony. Any violation will require the revocafion i of this certificate.
6. if you have questions about your exemption certificate, please call Taxpayer Services at 850.488-6800. The
rnafling address is PO Box 6480,Tallahassee, FL 323146480.
E8 16 2022
Finance Dept.
Formw-9 Request for Taxpayer Give Form to the
(Rev.October 2018) Identification Number and Certification requester. Do not
Department of the Treasury send to the IRS.
Internal Revenue Service 10-Go to www.irs.gov/FormW9 for instructions and the latest Information.
1 Name(as shown on your Income tax return).Name is required on this fine;do not leave this line blank,
Monroe County Board of County Commissioners
2 Business name/disregarded entity name,if different from above
Monroe County BOCC
cli
3 Check appropriate box for federal tax classification of the person whose name is entered on line 1.Check only one of the 4 Exemptions(codes apply only to
following seven boxes. certain entities,not individuals;see
W
CL instructions on page 3):
0 C: 0 Individual/sole proprietor or El C Corporation El S Corporation E] Partnership ❑ Trust/estate
U) single-member LLC Exempt payee code(if any)
2
F-1 Limited liability company.Enter the tax classification(C=C corporation,S=S corporation,P=Partnership)►
0 Note:Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check Exemption from FATCA reporting
0 LLC if the LLC is classified as a single-member LLC that is disregarded from the owner unless the owner of the LLC is code(if any)
another LLC that is not disregarded from the owner for U.S.federal tax purposes.Otherwise,a single-member LLC that
0- is disregarded from the owner should check the appropriate box for the tax classification of its owner.
Other(see instructions)10, Government (Applies f.acco.lfs rneintained wtside the U.S.)
(CL 5 Address(number,street,and apt.or suite no.)See instructions. name and address(optional)
500 Whitehead Street
's't_a"'"t""c,an_d Z_6 City, 1P code
Key West, FL 33040
7 List account number(s)here(optional)
- Taxpayer Identification Number(TIN)
Enter your TIN in the appropriate box.The TIN provided must match the name given on line 1 to avoid Social security number
backup withholding.For individuals,this is generally your social security number(SSN).However,for a
resident alien,sole proprietor,or disregarded entity,see the instructions for Part 1,later.For other -M
entities, it is your employer identification number(EIN).If you do not have a number,see How to get a ul�
TIN, later. or
Note:If the account is in more than one name,see the instructions for line 1.Also see What Name and Employer identification number
0
Number To Give the Requester for guidelines on whose number to enter. 5n9 -1' 6[0E-0 7 4
Under penalties of perjury, I certify that:
1.The number shown on this form is my correct taxpayer identification number(or I am waiting for a number to be issued to me); and
2. 1 am not subject to backup withholding because:(a)I am exempt from backup withholding,or(b)I have not been notified by the Internal Revenue
Service(IRS)that I am subject to backup withholding as a result of a failure to report all interest or dividends,or(c)the IRS has notified me that I am
no longer subject to backup withholding;and
& 1 am a U.S.citizen or other U.S. person(defined below);and
4.The FATCA code(s)entered on this form(if any)indicating that I am exempt from FATCA reporting is correct.
Certification instructions.You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because
you have failed to report all interest and dividends on your tax return. For real estate transactions,item 2 does not apply.For mortgage interest paid,
acquisition or abandonment of secured property,cancellation of debt,contributions to an individual retirement arrangement(IRA),and generally,payments
other than interest and dividends,you are not rA)uired to sign the cortifiqation,but you must provide your correct TIN.See the instructions for Part 11,later.
Si gn Signature of
Here U.S.person► Date►
General Instructions •Form 1099-DIV(dividends,including those from stocks or mutual
funds)
Section references are to the Internal Revenue Code unless otherwise *Form 1099-MISC(various types of income,prizes,awards,or gross
noted. proceeds)
Future developments.For the latest information about developments *Form 1099-B(stock or mutual fund sales and certain other
related to Form W-9 and its instructions,such as legislation enacted transactions by brokers)
after they were published,go to www.irs.gov1FormW9. #Form 1099-S(proceeds from real estate transactions)
Purpose of Form -Form 1099-K(merchant card and third party network transactions)
An individual or entity(Form W-9 requester)who is required to file an -Form 1098(home mortgage interest), 1098-E(student loan interest),
information return with the IRS must obtain your correct taxpayer 1098-T(tuition)
identification number(TIN)which may be your social security number -Form 1099-C(canceled debt)
(SSN),individual taxpayer identification number(ITIN),adoption
taxpayer identification number(ATIN),or employer identification number -Form 1099-A(acquisition or abandonment of secured property)
(EIN),to report on an information return the amount paid to you,or other Use Form W-9 only if you are a U.S.person(including a resident
amount reportable on an information return.Examples of information alien),to provide your correct TIN.
returns include,but are not limited to,the following. If you do not return Form W-9 to the requester with a TIN,you might
•Form 1099-INT(interest earned or paid) be subject to backup withholding. See What is backup withholding,
later.
Cat.No.10231X Form W-9(Rev.10-2018)