Chase Equipment Finance Escrow Agreements'/~~/iv R 7.U
ESCROW AGREEMENT
Dated as of MAY 25. 2010
(Gross Fund-Earnings to Lessee)
ao/D- X73 ~~
This Escrow Agreement together with all addenda, riders and attachments hereto, as the same may from time to time be amended,
modified or supplemented ("Agreement") is made and entered as of the date set forth above: by and among the Escrow Agent
identified below ("Escrow Agent"), the Lessee identified below ("Lessee") and CHASE EQUIPMENT FINANCE, INC. ("Lessor"). As
used herein, "Party" shall mean any of Lessee, Lessor or Escrow Agent, and "Parties" shall mean all of Lessee, Lessor and Escrow
Agent.
Escrow Agent: The Bank of New York Mellon Trust Company, N.A.
Lessee: CITY OF MIAMI BEACH, FLORIDA
For good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Recitals.
1.01 Lessor and Lessee have entered into the Lease identified below whereby Lessor has agreed to lease and sell certain
property described therein (the "Equipment") to Lessee, and Lessee has agreed to lease and purchase the Equipment from Lessor, in
the manner and on the terms set forth in the Lease.
1.02 "Lease" means, collectively, the Lease Schedule identified below and the Master. Lease-Purchase Agreement identified
in said Lease Schedule (to the extent that it relates to said Lease Schedule) together with all exhibits, schedules, addenda, riders and
attachments thereto. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of, nor have any
requirements to comply with ,the terms and conditions of any other agreement, instrument or document between Lessee and Lessor,
in connection herewith, if any, including without limitation the Lease, nor shall the Escrow Agent be required to determine if any person
or entity has complied with any such agreements, nor shall any such obligations of the Escrow Agent be inferred from the terms of such
agreements, even though reference thereto may be made in this Escrow Agreement. In the event of any conflict between the terms
and provisions of this Escrow Agreement, those of the Lease, any schedule or exhibit attached to the Escrow Agreement, or any other
agreement among the Parties, the terms and conditions of this Escrow Agreement shall control.
Lease Schedule No. 1000134097
1.03 LESSOR'S DEPOSIT: $13,279.659.00. Lessor shall pay or cause to be paid to the Escrow Agent the amount of the
Lessor's Deposit which will be credited to the Equipment Acquisition Fund established in Section 2 hereof. To the extent that the
purchase price of the Equipment exceeds the Lessor's Deposit, Lessee shall either deposit with Escrow Agent funds which will be
credited to the Equipment Acquisition Fund and used to pay the balance of the purchase price of the Equipment or Lessee shall pay
such balance directly to the suppliers.
1.04 FUNDING EXPIRATION DATE: Mav 24, 2012 Lessee and Lessor agree that all Equipment should be delivered and
installed, and all funds disbursed from the Equipment Acquisition Fund, no later than the above Funding Expiration Date.
1.05 Under the Lease, Lessee will cause each item of Equipment to be ordered from the applicable suppliers. Lessee shall
furnish to Lessor as soon as available, a copy of the purchase orders or purchase contracts for all Equipment ordered pursuant to the
Lease, showing the supplier, the purchase price and the estimated delivery dates.
1.06 Subject to such control by Lessee and Lessor as is provided herein, Lessor and Lessee agree to employ the Escrow
Agent to receive, hold, invest and disburse the moneys to be paid to the Escrow Agent as described in this Agreement. The Escrow
Agent shall not be obligated to assume or perform any obligation of Lessee or Lessor under the Lease or of any supplier with respect to
any Equipment by reason of anything contained in this Agreement. Any funds in the. Equipment Acquisition Fund not needed to pay the
purchase price of Equipment will be paid to Lessor or Lessee, all as hereinafter provided.
1.07 This Agreement is not intended to alter or change in any way the rights and obligations of Lessor and Lessee under the
Lease, but is entirely supplemental thereto. The provisions of this Agreement may be waived, altered, amended or supplemented, in
whole or in part, only by a writing signed by all Parties.
1.08 Each of the parties hereto has authority to enter into this Agreement, and has taken all actions necessary to authorize
the execution of this Agreement by the officers whose signatures are affixed hereto. Where, however, the conflicting provisions of any
such applicable law may be waived, they are hereby irrevocably waived by the Parties hereto to the fullest extent permitted by law, to
the end that this Agreement shall be enforced as written.
Section 2. Equipment Acquisition Fund.
2.01 The Escrow Agent shall establish a special escrow fund designated as the Equipment Acquisition Fund (the "Equipment
Acquisition Fund"), shall keep such fund separate and apart from all other funds and money held by it, and shall administer such fund
as provided in this Agreement.
WS 436 (Escrow Agreement-CEL-muni std 12109) Page 1 of 9
2.02 The Lessor's Deposit and any funds deposited by Lessee under Section 1.03 hereof shall be credited to the Equipment
Acquisition Fund which shall be used to pay the balance of the purchase price of each item of Equipment subject to the Lease. The
Escrow Agent shall pay to the suppliers of the Equipment the payment amounts then due and payable with respect thereto upon receipt
of a written request executed by Lessor which specifies each supplier and its address or wire instructions and the applicable portion of
the purchase price of the items of Equipment to be paid (the "Receipt Certificate/Payment Request"). As between Lessee and Lessor
only, Lessee agrees that it will submit to Lessor for Lessor's signature a Receipt Certificate/Payment Request that has been executed
by Lessee together with (a) the suppliers' invoices specifying the applicable portion of the purchase price of the items of Equipment
described in said Receipt Certificate, (b) if the item of Equipment is a titled vehicle, a copy of the Manufacturer's Statement of Origin
(MSO) covering such item showing Lessor as first and sole lienholder, and (c) any other documents required by the Lease, and Lessee
agrees that Lessor shall not be obligated to execute any such Receipt Certificate until all of the foregoing have been submitted to
Lessor.
2.03 If Lessor delivers to the Escrow Agent written notice of the occurrence of an event of default under the Lease or of a
termination of the Lease due to anon-appropriation event or non-renewal event under the Lease, then the Escrow Agent shall
immediately remit to Lessor the remaining balance of the Equipment Acquisition Fund.
2.04 Upon the Escrow Agent's receipt of a Full Funding Notice (as defined below), the Escrow Agent shall apply the balance
remaining in the Equipment Acquisition Fund:
first, to all reasonable fees and expenses incurred by the Escrow Agent in connection herewith as evidenced. by its statement
forwarded to Lessee and Lessor; and
second, to Lessor to be applied by Lessor for benefit of Lessee either: (a) toward the principal portion of the Rent Payment
next corning due under the Lease; or (b) toward a partial prepayment of the principal amount remaining due under the Lease and
thereupon Lessor shall prepare and deliver to Lessee a revised Payment Schedule reflecting such partial prepayment of principal.
"Full Funding Notice" means the Final Receipt Certificate/Payment Request which confirms that all Equipment covered by the Lease
has been delivered to and accepted by Lessee under the Lease and that the full amount of the Lessor's Deposit has been paid to the
applicable suppliers.
2.05 Upon the Funding Expiration Date stated in Section 1.04 above, the Escrow Agent shall apply the balance of the Lessor's
Deposit remaining in the Equipment Acquisition Fund:
first, to all reasonable fees and expenses incurred by the Escrow Agent in connection herewith as evidenced by its statement
forwarded to Lessee and Lessor; and
second, to Lessor to be applied by Lessor for benefit of Lessee either: (a) toward the principal portion of the Rent Payment
next coming due under the Lease; or (b) toward a partial prepayment of the principal amount remaining due under the Lease and
thereupon Lessor shall prepare and deliver to Lessee a revised Payment Schedule reflecting such partial prepayment of principal.
Upon the Funding Expiration Date stated in Section 1.04 above, the Escrow Agent shall apply the interest earnings on the Lessor's
Deposit as set forth in Section 2.04 above.
2.06 The Escrow Agent shall not be responsible for the sufficiency of the moneys credited to the Equipment Acquisition Fund
to make the payments herein required.
Section 3. Monev in Equipment Acquisitions Fund• Investment.
3.01 The money and investments held by the Escrow Agent under this Agreement are irrevocably held in trust for the benefit
of Lessee and Lessor, and such money, together with any income or interest earned thereon, shall be expended only as provided in
this Agreement, and shall not be subject to levy or attachment, or to any security interest or lien, by or for the benefit of any creditor of
either Lessee or Lessor; provided, that the money and investments held by the Escrow Agent under this Agreement shall be subject to
the security interests provided in Sections 3.07 and 4.03 hereof.
3.02 Money held by the Escrow Agent hereunder shall be invested and reinvested by the Escrow Agent at the written direction
of Lessee in Qualified Investments (as defined below). Such investments shall be registered in the name of the Escrow Agent and held
by the Escrow Agent. The Escrow Agent may purchase or sell to itself or any affiliate, as principal or agent, investments authorized by
this Section. Such investments and reinvestments shall be made giving consideration for the time at which funds are .required to be
available. No investment shall be made that would cause the Agreement to be deemed an "arbitrage bond" within the meaning of
Section 148(a) of the Internal Revenue Code of 1986, as amended. The Escrow Agent shall not be responsible for determining
whether any investment made hereunder complies with the aforementioned tax code.
3.03 The Escrow Agent shall have no discretion whatsoever with respect to the management, disposition or investment of the
Equipment Acquisition Fund and is not a trustee or fiduciary to Lessee. Lessee acknowledges and agrees that all investments made
pursuant to this section shall be for the account and risk of Lessee and any losses associated with investments shall be borne solely by
Lessee. Escrow Agent shall from time to time invest and reinvest the funds held in the Equipment Acquisition Fund, as and when
instructed by Lessee, in writing, in any one or more of the following (hereinafter, "Qualified Investments"): (a) obligations of the United
States of America or any agency created thereby; (b) general obligations of any State of the United States of America; (c) general
WS_436 (Escrow Agreement-CEL-muni std 12/09) Page 2 of 9
obligations of any political subdivision of a State of the United States of America, if such obligations are rated by at least two recognized
rating services as at least AA; (d) certificates of deposit of any national bank or banks (including, if applicable, Escrow Agent or an
affiliate of Escrow Agent) insured by the Federal Deposit Insurance Corporation (FDIC) with a net worth in excess of $100,000,000
("Acceptable Bank"); (e) obligations of State or Municipal Public Housing Authorities chartered by the United States of America and
guaranteed by the United States of America; (f) demand interest bearing accounts of Escrow Agent or an affiliate of Escrow Agent if
Escrow Agent or an affiliate of Escrow Agent is an Acceptable Bank; (g) money market funds whose assets are solely invested in
obligations listed in (a) through (f) above, including repurchase agreements secured by such obligations and prime commercial paper,
so long as the money market funds are rated in either of the two highest categories of any Rating Agency at the time of purchase,
including, without limitation, the Dreyfus Funds, or any other mutual fund for which the Escrow Agent or an affiliate of the Escrow Agent
serves as investment manager, administrator, shareholder servicing agent, and/or custodian or subcustodian, notwithstanding that (1)
the Escrow Agent or an affiliate of the Escrow Agent receives fees from such funds for services rendered, (2) the Escrow Agent
charges and collects fees for services rendered pursuant to the Lease or this Agreement, which fees are, separate from the fees
received from such funds and (3) services performed for such funds and pursuant to this Agreement may at times duplicate those
provided to such funds by the Escrow Agent or its affiliates; and (h) any other obligations approved in writing by Lessor. Unless
otherwise directed in writing by Lessee, the Escrow Agent shall invest the Equipment Acquisition Fund, including all income earnings,
as selected by the Lessee on schedule 1 hereto ("Schedule 1") upon the execution of this Agreement. In the event that no election is
made at the time of execution of this Agreement, Escrow Agent shall not be required to invest any monies in the Equipment Acquisition
Fund.
3.04 If any of the above-described Qualified Investments are not legal investments of Lessee, then Lessee shall immediately
notify Escrow Agent which of said Qualified Investments are not legal investments of Lessee, and shall provide Escrow Agent with
direction to invest funds in accordance with Section 3.03.
3.05 The Escrow Agent shall, without further direction, sell such investments as and when required to make any payment from
the Equipment Acquisition Fund. Any income received on such investments shall be credited to the Equipment Acquisition Fund.
3.06 The Escrow Agent shall furnish a monthly statement listing all investments to Lessor and to Lessee. The Escrow Agent
shall not be responsible or liable for any loss suffered in connection with any investments of moneys made by it in accordance with this
Section.
3.07 Lessee hereby grants Lessor a security interest in the money and investments held by the Escrow Agent under this
Agreement as collateral security for the payment and performance of all of Lessee's obligations under the Lease, this Agreement and
any agreement, contract or instrument related to the Lease or this Agreement. Lessee represents and warrants to Lessor that the
money and investments held by the Escrow Agent under this Agreement are free and clear of any liens, security interests or
encumbrances other than the security interests created under this Agreement. Escrow Agent hereby acknowledges that it holds the
money and investments held by the Escrow Agent under this Agreement subject to such security interest created by Lessee as bailee
for Lessor; provided, that Escrow Agent's security interest in such money and investments as created under Section 4.03 hereof shall
be superior to Lessor's security interest therein.
Section 4. Escrow Agent's Authority: Indemnification.
4.01 The Escrow Agent may: act in reliance upon any writing, notice, certificate, instruction, instrument or signature which it, in
good faith, believes to be genuine; assume the validity and accuracy of any statement or assertion contained in such a writing, notice,
certificate, instruction or instrument; and assume that any person purporting to give any such writing, notice, certificate, instruction or
instrument in connection with the provisions hereof has been duly authorized to do so. Except as expressly provided otherwise in this
Agreement, the Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form of, the manner of execution
of, or the validity, accuracy or authenticity of any writing, notice, certificate, instruction or instrument deposited with it, nor as to the
identity, authority or right of any person executing the same. The Escrow Agent shall not be liable for any action taken, suffered or
omitted to be taken by it except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow
Agent's gross negligence or willful misconduct was the primary cause of any loss to either Party. The Escrow Agent's duties hereunder
(including, without limitation, its duties as to the safekeeping, investment and disbursement of moneys in the Equipment Acquisition
Fund) shall be limited to those specifically provided herein.
4.02 Lessee, to the extent permitted by law, and Lessor jointly and severally shall indemnify defend and save harmless the
Escrow Agent from any and all claims, liabilities, losses, damages, fines, penalties and expenses (including out-of pocket and incidental
expenses and fees and expenses of in house or outside counsel) ("Losses") arising out of or in connection with (i) its execution and
performance of this Agreement, except to the extent and that such Losses are due to the gross negligence or willful misconduct of the
Escrow Agent. The provisions of this Section 4.02 shall survive the termination of this Agreement and the resignation or removal of the
Escrow Agent for any reason. The indemnifications set forth herein are intended to and shall include the indemnification of all affected
agents, directors, officers and employees of the Escrow Agent. In no event shall the Escrow Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been
advised of the likelihood of such loss or damage ahd regardless of the form of action.
4.03 Lessee and Lessor hereby grant Escrow Agent a first priority security interest in the money and investments held by the
Escrow Agent under this Agreement as collateral security for the costs and expenses of the foregoing of Section 4.02 and for any other
expenses, costs, fees or charges of any character or nature which may be incurred by the Escrow Agent (including reasonable
attorneys' fees and court costs) relating to any suit (interpleader or otherwise) or other dispute arising between Lessee and Lessor as to
the correct interpretation of the Lease, this Agreement or any instructions given to the Escrow Agent hereunder, with the right of the
WS_436 (Escrow Agreement-CEL-muni std 12/09) Page 3 of 9
Escrow Agent, regardless of the instructions aforesaid, to hold the said property until and unless, said expenses, costs, fees and
charges shall be fully paid. '
4.04 If Lessee or Lessor disagree about the interpretation of the Lease or this Agreement, about their rights and obligations
under the Lease or this Agreement, or about the propriety of any action contemplated by the Escrow Agent hereunder, then the Escrow
Agent may, but shall not be required to, file an appropriate civil action to resolve the disagreement. Lessee and Lessor shall pay all
costs, including reasonable attorneys' fees, in connection with such action. The Escrow Agent shall be fully protected in suspending all
or any part of its activities under this Agreement until a final judgment in such action is received. Lessor and Lessee agree to pursue
any redress or recourse in connection with any dispute without making the Escrow Agent a party to the same.
4.05 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 facts or errors of
judgment, or for any acts or omissions of any kind unless caused by the Escrow Agent's gross negligence or willful misconduct. None of
the provisions contained in this Agreement shall require the Escrow Agent to use or advance its own funds in the performance of any of
its duties or the exercise of any of its rights or powers hereunder.
4.06 The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any
other agreement, instrument or document between the other parties hereto, in connection herewith, including without limitation the
Lease.
Section 5. Change of Escrow Agent.
5.01 Upon agreement of the parties hereto, a national banking association or a state bank having capital (exclusive of
borrowed capital) and surplus of at least $10,000,000.00, qualified as a depository of public funds, maybe substituted to act as Escrow
Agent under this Agreement. Such substitution shall not be deemed to affect the rights or obligations of the parties hereto. Upon any
such substitution, the Escrow Agent agrees to assign to such substitute Escrow Agent all of its rights under this Agreement.
5.02 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, which shall be a date not less than thirty (30) days after such notice is deposited in
the United States mail with postage fully prepaid, unless an earlier resignation date and the appointment of a successor Escrow Agent
has been approved by Lessee and Lessor.
5.03 The Escrow Agent may appoint an agent to exercise any of the powers, rights or remedies granted to the Escrow Agent
under this Agreement, to hold title to property or to take any other action which may be desirable or necessary hereunder.
5.04 Any corporation, association or other entity into which the Escrow Agent may be converted or merged, or with which it
may be consolidated, or to which it may sell or otherwise transfer all or substantially all of its corporate trust assets and business to any
corporation, association or other entity resulting from any such conversion, sale, merger consolidation or other transfer to which it is a
parry, ipso facto, shall be and become successor escrow agent hereunder, vested with all other matters.as was its predecessor, without
the execution or filing of any instrument or any further act on the part of the parties hereto, notwithstanding anything herein to the
contrary.
Section 6. Administrative Provisions.
6.01 The Escrow Agent shall keep complete and accurate records of all money received and disbursed under this Agreement,
. which shall be available for inspection by Lessee or Lessor, or the agent of either of them, at any. time during regular business hours.
6.02 This Agreement shall be construed and governed in accordance with the laws of the State of Florida without reference to
conflict of laws. Each Party irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds
and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the
jurisdiction of the courts located in Miami Dade County in the State of Florida.
6.03 Any provision of this Agreement found to be prohibited by law shall be ineffective only to the extent of such prohibition,
and shall not invalidate the remainder of this Agreement.
6.04 This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
Specifically, the term "Lessor" as used herein means any person or entity to whom Lessor has assigned its right to receive Rent
Payments under the Lease and any otfier payments due to Lessor hereunder from and after the date when a written notice of such
assignment is filed with the Escrow Agent.
6.05 This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same Agreement. A person who is not a Party to this Agreement shall have no right to enforce
any term of this Agreement.
6.06 This Agreement shall terminate upon disbursement by the Escrow Agent of all money held by it hereunder. All
signatures of the Parties to this Escrow Agreement may be transmitted by facsimile, and such facsimile will, for all purposes, be
deemed to be the original signature of such Party whose signature it reproduces, and will be binding upon such. Party.
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i
Section 7. Securitv Procedures. In the event funds transfer instructions are given (other than in writing at the time of
execution of this Escrow Agreement), whether in writing, by telecopier or otherwise, the Escrow Agent is authorized to seek
confirmation of such instructions by telephone call-back to the person or persons designated on schedule 2 hereto ("Schedule 2"), and
the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. Each funds transfer
instruction shall be executed by an authorized signatory, a list of such authorized signatories is set forth on Schedule 2. The
undersigned is authorized to certify that the signatories on Schedule 2 are authorized signatories. The persons and telephone numbers
for callbacks may be changed only in a writing actually received and acknowledged by the Escrow Agent. The Escrow Agent and the
beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the
Lessee or Lessor to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank. The Escrow Agent may apply
any of the escrowed funds for any payment order it executes using any such identifying number, even. where its use may result in a
person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary's bank or an intermediary
bank designated. The parties to this Escrow Agreement acknowledge that these security procedures are commercially reasonable.
Section 8. Escrow Agent Fees. $2,500 ("Acceptance Fee") and $5,000 ("Annual Fee"). As compensation for Escrow Agent's
services hereunder, Lessee agrees to pay Escrow Agent the above Acceptance Fee and Annual Fee; provided, that Escrow Agent will
reduce the Acceptance Fee to $1,000 and the Annual Fee to $2,000 so long as the Qualified Investment for the Lessor's Deposit shall
be an eligible deposit of any bank affiliate of the Escrow Agent andlor any Dreyfus Fund (in which case, Lessor agrees to pay such
fees). If the Acceptance Fee and Annual Fee are payable by Lessee, then Lessee authorizes Escrow Agent either to deduct said
Acceptance Fee and Annual Fee from the interest and earnings otherwise payable to Lessee under this Agreement or to bill and collect
said Acceptance Fee and Annual Fee upon the establishment of the Equipment Acquisition Fund and the Annual Fee on the
anniversary date annually thereafter. In addition, Lessee agrees to reimburse Escrow Agent for its reasonable out-of-pocket costs and
expenses and any extraordinary fees and expenses for performing its obligations hereunder (including, but not limited to, attorney's
fees and expenses) and to pay all other amounts expressly due and payable to Escrow Agent hereunder.
Section 9. Notices. Any notice, consent or request to be given in connection with any of the terms or provisions of this
Agreement shall be given to the party at the address below or any address as the Party may provide to the other Parties hereto in
writing from time to time. Notices shall be in writing and be given in person, by facsimile transmission, courier delivery service or by
mail, and shall become effective (a) on delivery if given in person, (b) on the date of delivery if sent by facsimile or by courier delivery
service, or (c) three business days after being deposited in the mail, with proper postage prepaid for first-class registered or certified
mail, return receipt requested.
Notices shall be addressed as follows:
if to the Lessee:
City of Miami Beach, Florida
1700 Convention Center Drive
Miami Beach, FL 33139
Attention: Chief Financial Officer
Fax Number: 305-673-7795
(ii) if to the Lessor
Chase Equipment Finance, Inc.
1111 Polaris Parkway, Suite A-3
Columbus, Ohio 43240
Attention: Escrow Specialist
Fax Number: 866-276-4068
(iii) if to the Escrow Agent:
The Bank of New York Mellon Trust Company, N.A.
2 North LaSalle Street, Suite 1020
Chicago, IL 60602
Attention: Corporate Trust Services
Fax Number: 312.827.8542
Notwithstanding the above, in the case of communications delivered to the Escrow Agent pursuant to (a), (b) and (c) of this Section
6.02, such communications shall be deemed to have been given on the date received by an officer of the Escrow Agent or any
employee of the Escrow Agent who reports directly to any such officer at the above-referenced office. fn the event that the Escrow
Agent, in its sole discretion, shall determine that an emergency exists, the Escrow Agent may use such other means of communication
as the Escrow Agent deems appropriate. "Business Day" shall mean any day other than a Saturday, Sunday or any other day on which
the Escrow Agent located at the notice address set forth above is authorized or required by law or executive order to remain closed.
Section 10. Force Maieure. Notwithstanding any other provision of this Agreement, the Escrow Agent shall not be obligated
to perform any obligation hereunder and shall not incur any liability for the nonperformance or breach of any obligation hereunder to the
extent that the Escrow Agent is delayed in performing, unable to perform or breaches such obligation because of acts of God, war,
terrorism, fire, floods, strikes, electrical outages, equipment or transmission failures, or other causes reasonably beyond its control.
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Section 11. Jury Waiver. ALL PARTIES TO THIS AGREEMENT WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY,
ACTION, PROCEEDING OR COUNTER CLAIM BROUGHT BY ANY PARTY AGAINST ANOTHER PARTY ON ANY MATTER
WHATSOEVER ARISING OUT OF, IN CONNECTION WITH OR IN ANY RELATED TO THIS AGREEMENT.
Section 12. Miscellaneous.
12.01 Patriot Act Disclosure. Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT Act") requires the Escrow Agent to implement reasonable
procedures to verify the identity of any person that opens a new account, with it. Accordingly; the other Parties acknowledge that
Section 326 of the USA PATRIOT Act and the Escrow Agent's identity verification procedures require the Escrow Agent to obtain
information which may be used to confirm the other Parties identity including without limitation name, address .and organizational
documents ("identifying information"). The other Parties agree to provide the Escrow Agent with and consent to the .Escrow Agent
obtaining from third parties any such identifying information required as a condition of opening an account with or using any service
provided by the Escrow Agent.
12.02 Taxpayer Identification Numbers ("TINs"). The other Parties have provided the Escrow Agent with their respective
fully executed Internal Revenue Service ("IRS") Form W-i3, or W-9 and/or other required documentation. The other Parties each
represent that its correct TIN assigned by the IRS, or any other taxing authority, is set forth in the delivered forms.
12.03 Tax Reporting. All interest or other income earned under the Escrow Agreement shall be allocated to the Lessee and
reported, as and to the extent required by law, by the Escrow Agent to the IRS, or any other taxing authority, on IRS Form 1099 or
1042S (or other appropriate form) as income earned from the Escrow by the Lessee whether or not said income has been distributed
during such year. Any other tax returns required to be filed will be prepared and filed by the Lessee and/or Lessor with the IRS and any
other taxing authority as required by law, including but not limited to any applicable reporting or withholding pursuant to the Foreign
Investment in Real Property Tax Act ("FIRPTA"). Lessee and Lessor acknowledge and agree that Escrow Agent shall have no
responsibility for the preparation and/or filing of any tax return or any applicable FIRPTA reporting or withholding with respect to the
Escrow Deposit or any income earned by the Escrow Deposit. Lessee and Lessor further acknowledge and agree that any taxes
payable from the income earned on the investment of any sums held in the Escrow Deposit shall be paid by Lessee. In the absence of
written direction from the Lessee and Lessor, al! proceeds of the Equipment Acquisition Fund shall be retained in the Equipment
Acquisition Fund and reinvested from time to time by the Escrow Agent as provided in this Agreement. Escrow Agent shall withhold
any taxes it deems appropriate, including but not limited to required withholding in the absence of proper tax documentation, and shall
remit such taxes to the appropriate authorities.
[1"he next page is the signature page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
The Bank of New York Mellon Trust Comaanv, N.A., as escrow agent
("Escrow Agent")
By:
Title:
CHASE EQUIPMENT FINANCE INC.
("Less rs~~) =/y ' / ,
By:
Title: /~lTl~riCy° ~' ~'/~/N/~"6'~'`~.~
CITY OF M I BEACH FLORIDA
("Lessee
By:
Title: Chief Financial Officer
Artachments: Schedule 1 (Investment Authorization)
Schedule 2 (Nameltelephone # of call-back person(s) designated by Section 7 above)
WS_436 (Escrow Agreement-CEL-muni std 12/09) Page 7 of 9
i
fN 1~°ITN`cSS WHcREOr, t:~~ pariies have exec~tee this agreement as of the date first written above.
Tne Bank of PJew York Melton Tr:~st Comoany. Pd.A., as escrow agent
("escrow Agent")
Title: ICE PRESIDENT
CHRSy EQU{PMENT FINANCE, iNC.
("lessor")
By:
.a a
Title: ~"'~-~lft%`~~' ~/~7'~! Y ~,~~/~.r,.
-CITY OF M{AMI BEACH. FLQRIDA
("Less=e")
By:
Title: Chief Financial Officer
Aftachrnents: .Schedule 1 (Investment Authorization)
Schedule 2 (NameJtetephone # of-cal{-back persan(s} deslgna#ed by Section 7 above)
Vt~S 436 (Escrow Agreement-CEL-muni std t2/09) ?age 7 of 9
Schedule 1
Investment Authorization
City of Miami Beach, Florida 1000134097
Investment: SELECT INVESTMENT BELOW
A money market mutual fund, including without limitation the Dreyfus Fund or any other mutual fund for which the Escrow
Agent or any affiliate of the Escrow Agent serves as investment manager, administrator, shareholder servicing agent and/or
custodian orsub-custodian, notwithstanding that (i) the Escrow Agent or an affiliate of the Escrow Agent receives fees from such
funds for services rendered, (ii) the Escrow Agent charges and collects fees for services rendered pursuant to this Escrow
Agreement, which fees are separate from the fees received from such funds, and (iii) services performed for such funds and
pursuant to this Escrow Agreement may at times duplicate those provided to such funds by the Escrow Agent or its affiliates.
Check One:
_ Dreyfus Cash Management Participant Shares (DPCXX)
_ Dreyfus Government Cash Management Participant Shares (DPGXX)
_ Dreyfus Treasury & Agency Cash Management Participant Shares (DTPXX)
_ Dreyfus Government Prime Participant Shares (DGPXX)
_ Dreyfus Tax Exempt Cash Management Participant Shares (DEPXX)
Notes:
1) An investment in any of the above investment options is subject to the availability of such money market mutual fund as
determined at the discretion of BNY Mellon Asset Management. If the selected investment is not available at the present time
you will be contacted by a BNY Mellon representative. ,
2) Each investment instrument above has a rating not lower than the highest rating category from Standard & Poor's or Moody's.
SHAREHOLDER SERVICES FEES: Customer acknowledges that the Fund is authorized to make payments from its management fee
or any other source available to parties such as banks or broker-dealers ("Service Organizations") that provide shareholder support
services to the Fund and that Service Organizations currently are compensated at a rate of up to the Maximum Rate of .50% annually
of the average net assets of each Fund with respect to which they provide or have provided shareholder support services. Customer
further acknowledges that The Bank of New York Mellon is a Service Organization and is paid, and hereby consents to such payment,
by the Fund up to the Maximum Rate annually of the average daily balance of the Account invested in the Fund for shareholder support
services rendered to the Fund by The Bank of New York Mellon, which services may include, without limitation, answering client's
inquiries regarding the Fund, assistance to clients in changing dividend options, account designations and addresses, processing
purchase and redemption transactions, providing periodic statements showing a client's account balance and the integration of such
statement with other transactions, arranging for Bank of New York Mellon wires, and providing such other information and services as
the Fund's distributor or Customer reasonably may request. Customer further acknowledges that the Fund may purchase securities
from or through The Bank of New York Mellon or its affiliates, may engage in repurchase transactions with The Bank of New York
Mellon or its affiliates, may place funds on deposit in accounts with The Bank of New York Mellon or its affiliates and receive interest
income thereon and may obtain other services from The Bank of New York Mellon for which The Bank of New York Mellon is paid a
fee.
WS 436 (Escrow Agreement-CEL-muni std 1?J09) Page 8 of 9
Schedule 1
Investment Authorization
City of Miami Beach, Florida 1000134097-
Investment: SELECT INVESTMENT BELOW
A money market mutual fund, including without limitation the.Dreyfus Fund or any other mutual fund for which the Escrow
Agent or any affiliate of the Escrow Agent serves as investment manager, administrator, shareholder servicing agent and/or
custodian orsub-custodian; notwithstanding that (i) the Escrow Agent or an affiliate of the Escrow Agent receives fees from .such
funds for services rendered, (ii) the Escrow Agent charges and collects fees for services rendered pursuant to this Escrow
Agreement, which fees are separate from the fees received from such funds, and (iii) services performed for such funds and
pursuant to this Escrow Agreement may at times duplicate those provided to such funds by the Escrow Agent or its affiliates.
Check One:
Dreyfus Cash Management Participant Shares (DPCXX)
Dreyfus Govemment Cash Management Participant Shares (DPGXX)
,Dreyfus Treasury & Agency Cash Management Participant Shares (DTPXX)
Dreyfus Govemment Prime Participant Shares (DGPXX)
Dreyfus Tax Exempt Cash Management Participant Shares (DEPXX)
Notes:
1) An investment in any of the above investment options is subject to the availability of such money market mutual fund as
determined at the discretion of BNY Mellon Asset Management. If the selected investment is not available at the present time
you will be contacted by a BNY Mellon representative. '
2) Each investment instrument above has a rating not lower than the highest rating category from Standard & Poor's or Moody's.
SHAREHOLDER SERVICES FEES: Customer acknowledges that the Fund is authorized to make payments from its management fee
or any other source available to parties such as banks or broker-dealers ("Service Organizations") that provide shareholder support
services to the Fund and that Service Organizations currently are compensated at a rate of up !o the Maximum Rate of .50% annually
of the average net assets of each Fund with respect to which they provide or have provided shareholder support services. Customer
further acknowledges that The Bank of New York Mellon is a Service Organization and is paid, and hereby consents to such payment,
by the Fund up to the Maximum Rate annually of the average daily balance of the Account invested in the Fund for shareholder support
services rendered to the Fund by The Bank of New York Mellon, which services may include, without limitation, answering client's
inquiries regarding the Fund, assistance to clients in changing dividend options, account designations and addresses, processing
purchase and redemption transactions, providing periodic statements showing a client's account balance and the integration of such
statement with other transactions, arranging for Bank of New York Mellon wires, and providing such other information and services as
the Fund's distributor or Customer reasonably may request. Customer further acknowledges that the Fund may purchase securities
from or through The Bank of New York Mellon or its affiliates, may engage in repurchase transactions with The Bank of New York
Mellon or its affiliates, may place funds on deposit in accounts with The Bank of New York Mellon or its affiliates and receive intE;est
income thereon and 'may obtain other services from The Bank of New York Mellon for which The Bank of New York Mellon is paid a
fee.
WS 436 (Escrow Agreement-CEL-muni std 12/09) Page 1 of 1
Schedule 2
Telephone Numberls) and Signaturels) for
Person(s) Designated to Give Funds Transfer Instructions
If to Lessor:
Name Telephone Number .Signature
1 (Standing Signature on File)
2 (Standing Signature on File)
3 (Standing Signature on File)
Telephone Numberls) for Call-Backs and
Person(s) Desianated to Confirm Funds Transfer instructions
If to Lessor:
Name Telephone Number
1. Larry E. Spencer (614)213-7177
2. Timothy L. Ellerbrock (614) 213-7645
3. Aric Cambum (614) 213-1932
4. Mary Heubach (614) 213-1557
5. Lory R. King (614) 213-1146
6. Nate J. Ruhe (614) 213-3859
All funds transfer instructions must include the signature of the person(s) authorizing said funds transfer and must not be the same
person confirming said transfer.
WS_436 (Escrow Agreement-CEL-muni std 12/09) Page 9 of 9
_ ._ _ _
i
i
s
ESCROW FUNDING SCHEDULE ADDENDUM
AND ARBITRAGE CERTIFICATE
Dated MAY 25. 2010
Lease Schedule No. 1000134097
Lessee: CITY OF MIAMI BEACH. FLORIDA
Escrow Agent: The Bank of New York Mellon Trust Company, N.A.
Escrow Agreement dated as of MAY 25. 2010
Amount To Be Deposited Into Escrow: $13.279.659.00 ("Lessor's Deposit")
Reference is made to the above Lease Schedule ("Schedule") to the Master Lease-Purchase Agreement
identified in the Schedule ("Master Lease") by and between Chase Equipment Finance, Inc. ("Lessor") and the above
lessee ("Lessee"). As used herein, "Lease" shall mean the Schedule and the Master Lease, but only to the extent that the
Master Lease relates to the Schedule. This Addendum amends and modifies the terms and conditions of the Lease and is
hereby made a part of the Lease. Unless otherwise defined herein, capitalized terms defined in the Master Lease shall
have the same meaning when used herein.
NOW, THEREFORE, as part of the valuable consideration to induce the execution of the Lease, Lessor and
Lessee hereby agree to amend the Lease as follows:
1. Lessee and Lessor together with the above Escrow Agent ("Escrow Agent") have entered into the above
Escrow Agreement ("Escrow Agreement") establishing a fund ("Equipment Acquisition Fund") from which the Purchase
Price of the Equipment will be paid.
2. Lessor shall deposit such amount into escrow as is required by the Escrow Agreement, which amount shall be
credited to the Equipment Acquisition Fund. Lessee shall pay the balance of the Purchase Price of the Equipment, either
by deposit in escrow to the Equipment Acquisition Fund or by direct payment to the Suppliers of the Equipment.
3. The Lease Term of the Lease shall commence on the earlier of the date specified in the Payment Schedule to
the Schedule or the date of Lessor's deposit of funds into the Equipment Acquisition Fund. Notwithstanding the statements
regarding delivery and acceptance of the Equipment in the Schedule, the parties acknowledge that the Equipment will be
accepted as provided in the Escrow Agreement.
4. The delivery of documents and the satisfaction of any other conditions required by the Escrow Agreement or
this Addendum shall be additional Funding Conditions for the Lease.
5. Upon Lessee's execution of the Escrow Agreement, Lessee hereby represents and warrants to Lessor that: (a)
Lessee has full power, authority and legal right to execute and deliver the Escrow Agreement and to perform its obligations
under the Escrow Agreement, and all such actions have been duly authorized by appropriate findings and. actions of
Lessee's governing body; (b) the Escrow Agreement has been duly executed and delivered by Lessee and constitutes a
legal, valid and binding obligation of Lessee, enforceable in accordance with its terms; and (c) the Escrow Agreement is
authorized under, and the authorization, execution and delivery of the Escrow Agreement complies with, all applicable
federal, state and local laws and regulations (including, but not limited to, all open meeting, public bidding and public
investment laws) and all applicable judgments and court orders.
6. The opinion of Lessee's legal counsel will include statements to the same effect as the representations of
Lessee in paragraph 5 above.
7. It shall be an additional event of default under the Lease if Lessee fails to pay or perform any of its obligations
under the Escrow Agreement or this Addendum or if any of the representations of Lessee in the Escrow Agreement or this
Addendum prove to be false, misleading or erroneous in any material respect.
8. ARBITRAGE CERTIFICATE. The authorized representative of Lessee who executes this Addendum hereby
certifies that helshe is the duly qualified and acting representative of Lessee with the title set forth below his/her signature
hereon; that Lessee has executed and delivered the Schedule and the Master Lease (collectively, the "Lease"); that
Lessee is a political subdivision of the State identified in the Lease for purposes of the Code (defined below); and that in
his/her official capacity as such officer he/she is responsible for executing and delivering, on behalf of the Lessee, the
Lease and this Addendum. This paragraph of this Addendum (hereinafter, this paragraph shall be identified as the
"Arbitrage Certificate") is being issued by Lessee as a "no arbitrage certificate" pursuant to Section 148 of the Internal
Revenue Code of 1986, as amended (the "Code"j, and Treasury Regulations, Sections 1.148-0 through 1.148.11 (the
"Regulations"). Lessee represents and warrants to Lessor that the following facts, estimates and circumstances
are in existence on the date of this Arbitrage Certificate or are reasonably expect to occur hereafter.
(a) The Lease provides for the lease of the Equipment described in the Lease by Lessor to Lessee. Under the
Lease, Lessee is required to make Rent Payments with respect to the Equipment, comprising principal and
interest, on the dates and in the amounts stated in the Payment Schedule to the Lease.
(b) Pursuant to the Lease and for the purpose of meeting its obligations thereunder and assuring the Lessee of
the availability of monies needed to pay the cost of the Equipment when due, Lessee, Lessor and the Escrow
Agent have executed the Escrow Agreement.
(c) Contracts or purchase orders providing for the acquisition and delivery of the Equipment have been issued by
Lessee to Equipment Vendors therefor and the Equipment will be acquired and installed with due diligence.
Based upon the provisions of the contracts or purchase orders, the Equipment will be acquired and installed no
later than twenty four (24) months from the date of the Escrow Agreement ("Funding Expiration Date").
(d) The Escrow Agreement provides that Lessor shall deposit the Lessor's Deposit into escrow to be credited to
the Equipment Acquisition Fund created by the Escrow Agreement and utilized to pay for the Equipment as
provided therein. It is presently expected that all such funds initially credited to the Equipment Acquisition Fund
shall be disbursed to pay for the Equipment, but any such amounts ultimately determined not to be needed for
such purposes and the interest earnings on the amounts held in escrow shall be utilized on or after the Funding
Expiration Date to pay part of the principal due under the Lease, as provided in the Escrow Agreement.
(e) All of the spendable proceeds of the Lease will be expended on the Equipment and related expenses on or
before the Funding Expiration Date.
(f) The original proceeds of the Lease, and interest to be earned thereon, do not exceed the amount necessary for
the purpose for which the Lease is issued.
(g) The interest of Lessee in the Equipment has not been and is not expected during the term of the Lease to be
sold or disposed of by Lessee.
(h) No sinking fund is expected to be created by Lessee with respect to the Lease and Rental Payments.
(i) Lessee represents, warrants and covenants to one of the following statements of this clause (i) as is initialed
by Lessee below [and if Lessee fails to initial its selection, then subclause (A) shall be deemed to have been
selected by Lessee]:
X (A) At least 75% of the Equipment represents contraction expenditures under the Regulations.
100% of the proceeds of the Lease shall be paid for the acquisition of the Equipment within 24 months of
the date of the Escrow Agreement in accordance with the following schedule:
No less than 10% within 6 months of the date of the Escrow Agreement;
No less than 45% within 12 months of the date of the Escrow Agreement;
No less than 75% within 18 months of the date of the Escrow Agreement; and
No less than 100% within 24 months of the date of the Escrow Agreement.
(B) 100% of the proceeds of the Lease shall be paid for the acquisition of the Equipment within 6
months of the date of the Escrow Agreement.
(C) Lessee qualifies for the "small issue" exemption in section 148(f)(4)(D) of the Code because all
of the following are true: (1) Lessee is a governmental unit with general taxing powers, and (2) the Lease
is not a "private activity bond" as defined in Section 141 of the Code, and (3) 95% or more of the
proceeds of the Lease shall be used for the governmental activities of Lessee, and (4) the aggregate
face amount of all tax exempt bonds and other tax exempt obligations (other than "private activity
bonds") issued by Lessee (and any subordinate entities of Lessee as contemplated by Section 148(f) of
the Code) during the calendar year in which the Lease is issued is not reasonably expected to exceed
$5,000,000.
(j) Unless the requirements of paragraph (i) above are met, Lessee hereby covenants that Lessee shall comply
with all of the requirements of the Code and Regulations relating to the rebate of arbitrage profit to the United
States of America (including, without limitation Section 148(f) of the Code} and will rebate to the United States of
America all arbitrage profit required thereby.
_ _ _ _ _ _.
(k) To the best of the knowledge and belief of the undersigned, the expectations of Lessee, as set forth above,
are reasonable; and there are no present facts, estimates and circumstances which would change the foregoing
expectations.
9. If there is a partial prepayment of principal pursuant to the terms of either clause (b) of Section 2.04 second of
the Escrow Agreement or clause (b) of Section 2.05 second of the Escrow Agreement, and such prepayment occurs prior
to the end of the 24~' month of the Lease Term, then in addition to the payment of the Partial Principal Amount, Lessee
shall also pay to Lessor a break funding premium equal to the amount, if any, by which (i) the present value of all
Remaining Payments (as defined below) discounted to the date of said partial prepayment of principal (the "Prepayment
Date") at a rate equal to the Interest Rate Swap rate having a term to maturity nearest to the remaining Average Life (as
defined below) of the Schedule as reported on the Federal Reserve H.15 report as of the business day preceding the
Prepayment Date exceeds (ii) the present value of all Remaining Payments discounted to the Prepayment Date at a rate
equal to the Interest Rate Swap rate having a term to maturity nearest to the original Average Life of the Schedule as
reported on the Federal Reserve H.15 report as of the Commencement Date of the Schedule, said amount further
~~
multiplied by the Partial Prepayment Fraction (as defined below). Remaining Payments" means all remaining installment
payments and all other amounts (including, without limitation, any balloon payment and any other payments required to be
paid by Lessee at the end of the Lease Term of the Schedule) payable under the Schedule after such Prepayment Date to
the end of the Lease Term of the Schedule. "Average Life" means the average duration of the original or remaining (as the
case may be) principal payments included in the installment payments and any balloon payment payable under the
Schedule weighted by the amount of the principal payments. "Partial Prepayment Fraction" is a fraction in which the
numerator is the Partial Principal Amount and the denominator is the remaining principal balance of the Schedule as of the
Prepayment Date. If the Federal Reserve Board ceases publication of Interest Rate Swap rates in its Federal Reserve
H.15 report or a similar report, then Lessor shall select an alternate publication for interest rate swap information in its
reasonable discretion.
10. Except as expressly amended by this Addendum and other modifications signed by Lessor, the Lease
remains unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of the date first referenced above.
CITY OF MI MI BEACH FLORIDA
(Lesse
By:
Title: rh~pf Financial Officer
CHASE E UIPMENT FINANCE INC.
(Lessor).
By:
Title: LNG ~l47tii4~lwS~/