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2008-26766 Reso
RESOLUTION NO. 2008-26766 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY TO ENTER INTO AN EQUIPMENT LEASE LINE OF CREDIT IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $37,500,000 WITH SUNTRUST EQUIPMENT FINANCE & LEASING CORP.; AUTHORIZING THE EXECUTION AND DELIVERY OF A FINAL TERMS SHEET AND A MASTER EQUIPMENT LEASE AGREEMENT IN CONNECTION THEREWITH; AUTHORIZING THE REFINANCING OF CERTAIN EQUIPMENT, THE LEASE AND PURCHASE OF ADDITIONAL EQUIPMENT AND THE PAYMENT OF RELATED COSTS OF ISSUANCE AND THE EXECUTION OF SCHEDULES WITH RESPECT TO SUCH EQUIPMENT; AUTHORIZING THE EXECUTION OF SUCH OTHER DOCUMENTS AS MAY BE NECESSARY TO COMPLETE THE TRANSACTIONS CONTEMPLATED HEREBY; DECLARING THE CITY'S OFFICIAL INTENT TO ENTER INTO LEASES TO REIMBURSE ITSELF FOR FUNDS ADVANCED FOR THE PURCHASE OF EQUIPMENT; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED by the Mayor and City Commission of the City of Miami Beach, Florida (the "City") as follows: Section 1. Findings. It is hereby ascertained, determined and declared that: (a) Pursuant to a Master Equipment Lease/Purchase Agreement dated October 30, 2001 and related Schedules of Property, each between the City and Banc of America Leasing & Capital, LLC (the "Prior Lessor"), the City has previously leased and purchased from the Prior Lessor certain equipment (the "Prior Equipment"). (b) The City has a need for additional equipment described in Exhibit A hereto (the "Additional Equipment" and together with the Prior Equipment, the "Equipment"). (c) The City has determined that it is in the best financial interest of the City and its inhabitants that the City refinance the Prior Equipment and, from time to time, lease and purchase the Additional Equipment pursuant to an Equipment Lease Line of Credit in an aggregate principal amount not tp exceed $37,500,000 (the "Lease Line of Credit") with SunTrust Equipment Finance & Leasing Corp. (the Lessor"), all in accordance with the terms of a Final Terms Sheet (the "Final Terms Sheet") from Lessor and a Master Lease Agreement (the "Master Lease Agreement") to be entered into between the City and the Lessor. (d) The City has advanced and will advance internal funds for the purchase of the Additional Equipment and intends to reimburse itself for such advances by entering MIAM U4212440.4 into Leases (as defined in the Master Lease Agreement) for such Additional Equipment under the Master Lease Agreement. (e) The City is authorized and empowered by the Constitution and laws of the State of Florida, including particularly Chapter 166, Florida Statutes, and other applicable provisions of law, to enter into the Lease Line of Credit and to fully perform its obligations thereunder. (f) The structure of lease/purchase financing, current market conditions and other circumstances require that the refinancing of the Prior Equipment and the lease and purchase of the Additional Equipment thereunder be negotiated at private sale rather than offered by competitive bid. Section 2. Authorization of Lease Line of Credit. The City is hereby authorized to enter into the Lease Line of Credit in an aggregate principal amount not to exceed $37,500,000 with Lessor. Section 3. Authorization of Execution and Delivery of Final Terms Sheet. The Final Terms Sheet, substantially in the form attached hereto as Exhibit B, with such omissions, insertions and variations as may be approved on behalf of the City by the Mayor, or in his absence, the Vice Mayor, after consultation with the Chief Financial Officer and the City Attorney, such approval to be evidenced conclusively by the Mayor's (or Vice Mayor's) execution thereof, is hereby approved and authorized. The City hereby authorizes and directs the Mayor, or in his absence, the Vice Mayor to execute the Final Terms Sheet and deliver the same to the Lessor. Section 4. Authorization of Execution and Delivery of Master Lease Agreement. The Master Lease Agreement, substantially in the form attached hereto as Exhibit C, with such omissions, insertions and variations as may be approved on behalf of the City by the Mayor, or in his absence, the Vice Mayor, after consultation with the Chief Financial Officer and the City Attorney, such approval to be evidenced conclusively by the Mayor's (or Vice Mayor's) execution thereof, is hereby approved and authorized. The City hereby authorizes and directs the Mayor, or in his absence, the Vice Mayor to execute the Master Lease Agreement and deliver the same to the Lessor. Section 5. Authorization of Refinancing of Prior Equipment and Lease and Purchase of Additional Equipment. The refinancing of the Prior Equipment, the lease and purchase of the Additional Equipment and the payment of related costs of issuance, all in accordance with the terms of the Final Terms Sheet, the Master Lease Agreement and Equipment Schedules, substantially in the form attached as Exhibit A to the Master Lease Agreement, with such omissions, insertions and variations as may be necessary to describe the Equipment and the terms of such lease and purchase of the Equipment and approved on behalf of the City by the Chief Financial Officer, after consultation with the City Attorney (the "Schedules"), such approval to be evidenced conclusively by the Chief Financial Officer's execution thereof, is hereby approved and authorized. The City hereby authorizes and directs the Chief Financial Officer to execute each of the Schedules and related documents and deliver the same to the Lessor. 2 MIAMU4212440.4 Section 6. General Authority Additional Documents. The Mayor, the Chief Financial Officer, the City Attorney, the City Clerk and the other officers, attorneys, agents and employees of the City are hereby authorized to do all acts and things required of them by this Resolution or desirable or consistent with the requirements hereof for the full, punctual and complete performance of all of the terms, covenants and agreements contained in the Final Terms Sheet, the Master Lease Agreement and the Schedules, and they are hereby authorized to execute, deliver and file, as applicable, all agreements, documents, certificates and forms which appear as Exhibits to the Master Lease Agreement or which are necessary or shall reasonably be required by the Lessor to effectuate the transactions described herein, including without limitation, to execute and deliver Escrow Agreements among the City, the Lessor and SunTrust Bank, as escrow agent, and Tax Agreement and Arbitrage Certificates, substantially in the forms attached as Exhibits to the Master Lease Agreement, with such omissions, insertions and variations as may be approved on behalf of the City by the Chief Financial Officer, after consultation with the City Attorney, such approval to be evidenced conclusively by the Chief Financial Officer's execution thereof. Section 7. Declaration of Official Intent. The City hereby declares its official intent to enter into Leases in an aggregate principal amount of approximately $27,000,000, proceeds of which will, to the extent permissible under the Internal Revenue Code of 1986, as amended, be used to reimburse the City for funds advanced by it for the purchase of the Additional Equipment. This Resolution is intended as a declaration of official intent under Treasury Regulation § 1.150-2. Section 8. Severabilit~of Invalid Provisions. If any one or more of the covenants, agreements or provisions of this Resolution shall be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements d provisions shall be null and void and shall be deemed separable from the remaining covena agreements and provisions of this Resolution, and shall in no way affect the validity of any of the other covenants, agreements or provisions hereof. Section 9. Effective Date. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 13thday cif Fo,,,-„„-~:nnR [SEAL] ATTEST: City Clerk Robert Parcher APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION 3 ~ Lorne w Z a MIAMI/4212440.4 COMMISSION ITEM SUMMARY :ondensed Title: A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida Authorizing The City To Enter Into An Equipment Lease Line Of Credit In An Aggregate Principal Amount Not To Exceed $37,500,000 With SunTrust Equipment Finance & Leasing Corp.; Authorizing The Execution And Delivery Of A Final Terms Sheet And A Master Equipment Lease Agreement In Connection Therewith; Authorizing The Refinancing Of Certain Equipment, The Lease And Purchase Of Additional Equipment And The Payment Of Related Costs Of Issuance And The Execution Of Schedules With Respect To Such Equipment; Authorizing The Execution Of Such Other Documents As May Be Necessary To Complete The Transactions Contemplated Hereby; Declaring The City's Official Intent To Enter Into Leases To Reimburse Itself For Funds Advanced For The Purchase Of Equipment And Providing An Effective Date. Key Intended Outcome Supported: • Improve the City's overall financial health and maintain overall bond rating. Supporting Data (Surveys, Environmental Scan, etc.): N/A Issue: Shall the City Commission Adopt the Resolution? Item Summary/Kecommenaaiion: The purpose of this financing is to pay for vehicle and heavy equipment purchases, information technology and communications equipment and systems and other types of equipment required by the City. The amount of the credit line will not exceed the lower of $37,500,000 or the fair market value of the equipment financed, over the utilization period of the transaction. The Master Equipment Lease Agreement with SunTrust will be set up for five, seven and ten year lease terms to match the useful lives of the equipment being financed. The City will advance internal funds for the purchase of the equipment and intends to reimburse itself for such advances by entering into leases under the Master Lease Agreement. The loan will be repaid with non-ad valorem revenues over the life of the equipment. In addition, the required principal and interest payments will be paid from the operating budget of each of the departments purchasing the equipment. The City used this tool each year to finance the purchase of new and replacement equipment over their usual lives of five, seven or ten years. This financing method permitted the City to acquire equipment when it was needed, while spreading the cost over the life of the equipment at very low interest rates. The attached Resolution authorizes the execution of the Master Lease Agreement, the refinancing of prior equipment, lease/purchase of additional equipment including all costs of issuance. Further, it authorizes the Mayor, the Chief Financial Officer, the City Attorney, the City Clerk and the other officers, attorneys, agents and employees of the City to do all acts and things required of them consistent with the requirements of all of the terms, covenants and agreements contained in the Final Terms Sheet, the Master Lease Agreement and the Schedules. ADOPT THE RESOLUTION. Adviso Board Recommendation: N/A Financial Information: Source of Amount Account Approved Funds: 1 Various: Operating Budget of each department buying the a ui ment. O 2 OBPI Total Financial Impact Summary: Cit Clerk's Office Le islative Trackin Trish Walker, ext. 6461 __ Depa ent Director A sta t City Manager City Manager GE PD JMG T:WGENDA\2008\feb1308\regular\Equip Loan Summary.doc m MIAMIBEACH A+GEfVDA ITEfN R'1 Da~~ Z' 13~ b8 m MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: February 13, 2008 suB~ECr: A RESOLUTION OF THE .MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY TO ENTER INTO AN EQUIPMENT LEASE LINE OF CREDIT IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $37,500,000 WITH SUNTRUST EQUIPMENT FINANCE & LEASING CORP.; AUTHORIZING THE EXECUTION AND DELIVERY OF A FINAL TERMS SHEET AND A MASTER EQUIPMENT LEASE AGREEMENT IN CONNECTION THEREWITH; AUTHORIZING THE REFINANCING OF CERTAIN EQUIPMENT, THE LEASE AND PURCHASE OF ADDITIONAL EQUIPMENT AND THE PAYMENT OF RELATED COSTS OF ISSUANCE AND THE EXECUTION OF SCHEDULES WITH RESPECT TO SUCH EQUIPMENT; AUTHORIZING THE EXECUTION OF SUCH OTHER DOCUMENTS AS MAY BE NECESSARY TO COMPLETE THE TRANSACTIONS CONTEMPLATED HEREBY; DECLARING THE CITY'S OFFICIAL INTENT TO ENTER INTO LEASES TO REIMBURSE ITSELF FOR FUNDS ADVANCED FOR THE PURCHASE OF EQUIPMENT; AND PROVIDING AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION Adopt the Resolution KEY INTENDED OUTCOMES SUPPORTED Improve the City's overall financial health and maintain overall bond rating. ANALYSIS The purpose of this financing is to pay for vehicle and heavy equipment purchases, information technology and communications equipment and systems and other types of equipment required by the City. Last year, the City with its Financial Advisor, Richard Montalbano, Managing Director, RBC Capital Markets, initiated discussions with various local banks in an effort to obtain continuing financing for capital equipment needs. We worked closely with both Mr. Montalbano and our Bond Counsel, Luis Reiter, Squire Sanders & Dempsey L.L.P. as the structure of lease/purchase financing, current market conditions and other circumstances require that the refinancing of the existing equipment and the lease/ purchase of the additional equipment be negotiated rather than offered by competitive Commission Memo Re Equipment Loan February 73, 2008 Page 2 of 3 bid. To that end, we requested proposals from Banc of America Leasing & Capital, LLC ("Banc of America"), SunTrust Equipment Finance & Leasing Corp ("SunTrust") and Wachovia Leasing Corporation ("Wachovia"). We received proposals from both Banc of America and SunTrust however, Wachovia declined to propose. SunTrust proposed both variable and fixed rate financing programs; Banc of America proposed only a variable rate program. SunTrust proposed variable interest rates based on 67% of the 6-month LIBOR (London Interbank Offered Rate, ashort-term interest rate often quoted as a 1, 3, 6-month rate for U.S. dollars) plus 74 basis points ("bps") (0.74%) for the 5-year lease, 78 bps (0.78%) for the 7-year lease, and 82 bps (0.82%) for the 10-year lease. As of 1/31/08, these interest rates were 2.78%, 2.82%, and 2.86%, respectively. The existing Banc of America variable interest rates are based on 64% of the 3-month LIBOR plus 108 bps (1.08%) for the 5-year lease, 114 bps (1.14%) for the 7-year lease, and 121 bps (1.21%) for the 10-year lease. As of 1/31/08, these interest rates were 3.07%, 3.13%, and 3.20%, respectively. The proposed Banc of America variable interest rates are based on 64% of the 3-month LIBOR plus 100 bps (1.00%) for the 5-year lease, 106 bps (1.06%) for the 7-year lease, and 112 bps (1.12%) for the 10-year lease. As of 1/31/08, these interest rates were 2.99%, 3.05%, and 3.11 %, respectively. The fixed rates for each financing proposed by SunTrust vary with the AA- SWAP rate (The AA- SWAP rate is the indicative rate at which SunTrust can borrow money) as shown in the Federal Reserve Board Statistical Release and as of the week ending January 31, 2008 ranged from 2.97% for a five year term to 3.50% for a ten year term. We have reviewed the above provisions, along with our Financial Advisor and our Bond Counsel and have determined that the proposed SunTrust lease/financing program best meets the goals of the City, in terms of providing a low cost credit facility. Additionally, SunTrust will refinance the remaining outstanding balance of the Banc of America loans in the amount of $9,716,855, over their remaining terms, at a net present value savings to the City of approximately $696,000. The remaining balance of $9,716,855 will be refinanced at a fixed rate estimated at 2.97%, as opposed to the existing rate of 3.07%. The amount of the credit line will not exceed the lower of $37,500,000 or the fair market value of the equipment financed, over the utilization period of the transaction. The Master Equipment Lease Agreement with SunTrust will be set up for five, seven and ten year lease terms to match the useful lives of the equipment being financed. The City will advance internal funds for the purchase of the equipment and intends to reimburse itself for such advances by entering into leases under the Master Lease Agreement. Some of the types of equipment that will be purchased are cars, light trucks, heavy equipment vehicles, dump trucks, sweepers, ATVs, trailers, VMS Sign vehicles, pressure cleaners, information technology and communications equipment, wireless internet access equipment, boat, garbage trucks and utility vehicles. The loan will be repaid with non-ad valorem revenues over the life of the equipment. In addition, the required principal and interest payments will be paid from the operating budget of each of the departments purchasing the equipment. Commission Memo Re Equipment Loan February 73, 2008 Page 3 of 3 The attached Resolution authorizes the execution of the Master Lease Agreement, the refinancing of prior equipment, lease/purchase of additional equipment including all costs of issuance. Further, it authorizes the Mayor, the Chief Financial Officer, the City Attorney, the City Clerk and the other officers, attorneys, agents and employees of the City to do all acts and things required of them consistent with the requirements of all of the terms, covenants and agreements contained in the Final Terms Sheet, the Master Lease Agreement and the Schedules. BACKGROUND On September 20, 2001, the City Commission approved Resolution No.2001-24600 for the execution and delivery of a Master Equipment Lease/Purchase Agreement with Banc of America Leasing & Capital, LLC. The program served as a $21,000,000 variable rate credit line that allowed the City to fund equipment purchases in a flexible and cost effective manner over a six year period. Over the course of six years the City financed, $18,197,640 with a remaining balance of approximately $9,716,855. The City used this tool each year to finance the purchase of new and replacement equipment over their usual lives of five, seven or ten years. This financing method permitted the City to acquire equipment when it was needed, while spreading the cost over the life of the equipment at very low interest rates. CONCLUSION The Administration recommends that the Mayor and City Commission of the City of Miami Beach, Florida, adopt the attached resolution, authorizing the Administration to enter into an equipment lease line of credit in an aggregate principal amount not to exceed $37,500,000 with SunTrust Equipment Finance & Leasing Corp.; authorizing the execution and delivery of a final terms sheet and a master equipment lease agreement in connection therewith; authorizing the refinancing of certain equipment, the lease and purchase of additional equipment and the payment of related costs of issuance and the execution of schedules with respect to such equipment; authorizing the execution of such other documents as may be necessary to complete the transactions contemplated hereby; declaring the City's official intent to enter into leases to reimburse itself for funds advanced for the purchase of equipment; and providing an effective date. JMG: PDW: jr T:\AGENDA\2008\feb1308Vegular\Equip Loan Comm Memo.doc EXHIBIT A ADDITIONAL EQUIPMENT INFORMATION TECHNOLOGY Acquisition of a Computer Aide Dispatching (CAD) System. Acquisition of Wireless Internet Access (WIFI) equipment. Replacement and purchase of Motorola radios/safety equipment. Purchase of vehicle. FLEET MANAGEMENT: Replacement and purchase of cars, light trucks and heavy equipment vehicles. Purchase of trailers, boat, ATVs, and other lightweight and heavy equipment. PARKING Replacement and purchase of cars and light trucks, including VMS Sign vehicles. PROPERTY MANAGEMENT Replacement and purchase of cars and light trucks and pressure cleaners. STORMWATER Replacement of dump truck and utility body truck. SANITATION Replacement and purchase of garbage trucks, sweepers, and utility vehicles. MIAMI/4212440.4 EXHIBIT B FINAL TERMS SHEET MIAMI/4212440.4 FINAL TERMS SHEET Prepared In Connection With: A Proposal For An Equipment Lease Line of Credit By and Between SunTrust Equipment Finance & Leasing Corp., and The City of Miami Beach, Florida ~~~ .a~ ~~y Equipment Finance & Leasing Corp. Prepared by: G. Victor Bryson, January 15, 2007 FINAL TERMS SHEET: BACKGROUND AND PARTIES City of Miami Beach, Florida PURPOSE: The purpose of this Final Term Sheet is to outline the basic terms, conditions, and pricing matrices under which Lessor shall provide equipment and/or other lease financing, as from time to time permitted by Lessor, to Lessee. Although these terms and conditions are intended to be comprehensive, they are not necessarily inclusive of all the anticipated terms and conditions that will be applicable to each lease financing. All of the final terms and conditions will be set forth more fully in the definitive and final lease documents. LESSOR: SunTrust Equipment Finance & Leasing Corp. ("STEFL"), or its designee, if applicable. Lessee understands that STEFL may from time to time assign schedules or leases to other investors. LESSEE: The City of Miami Beach, Florida (the "City"), which is a political subdivision within the meaning of Section 103(c) of the Internal Revenue Code of 1986, as amended, and the applicable Treasury regulations (the "Code"), and has been or will be authorized by its governing body and all applicable laws of the State or City to enter into tax exempt leases for refinancing of existing lease finance debt, and for the purchase of various Equipment. PARTIES: Lessor and Lessee. ESCROW AGENT: If applicable, SunTrust Banks, Inc., Corporate Agency Division. STATE: State of Florida. The laws of the State shall govern all contracts and documentation. LEASES: A net Master Equipment Lease Agreement with various Schedules thereto where Lessee is responsible for all costs of operation, maintenance, insurance, taxes (if applicable) and the like. Said Leases shall be subject to the annual appropriation of funds by Lessee's governing body. Leases shall be calculated on a 30/360 amortization basis, and all compounding of interest shall occur monthly. -2- C:\Documents and Settings\finarodj\Local Settings\Temporary Internet Files\OLK304\Final Terms Sheet v5 FINAL (clean).doc FINAL TERMS SHEET: LEASE TERMS, AMOUNT, & RATES City of Miami Beach, Florida TYPE OF FINANCING: The terms of each lease financing will be five, seven, and/or ten years, with quarterly payments in advance ("Lease Terms"). Takedown is expected to commence in February 2008. LEASE LINE OF CREDIT: Lessor agrees to provide the Lessee with anon-revolving Lease Line of Credit of up to a maximum of $37,500,000, in the aggregate (the "Lease Line of Credit"), or such additional amount as is mutually agreed upon by the Parties. Any terms of increase to the amount of the Credit Limit shall be subject to the credit approval of the Lessor, additional negotiation, legal approval, and the mutual agreement of the Parties. The Lease Line of Credit will be designated as an Uncommitted Guidance Line of Credit, and the Lease Line of Credit will expire one year from today's date. The Lease Line of Credit will be subject to annual renewal by the Lessor, at its sole discretion. EQUIPMENT/COLLATERAL: Various essential use equipment and one refinancing of Banc of America Leasing & Capital, LLC Leases. The Parties agree and understand there may be soft costs and/or soft collateral being financed as well as other tangible collateral. Any such soft costs, soft collateral, and/or equipment not previously identified by Lessee and agreed to by Lessor are subject to review and acceptance by the Lessor, the approval of which shall not be unreasonably withheld or delayed. TAX-EXEMPT STRUCTURE: For tax purposes, the lease financings contemplated kereunder will be intended as "non-bank-qualified", tax exempt financing transactions. Lessee reasonably anticipates the annual amount of tax-exempt obligations (other than private activity bonds) to be issued by Lessee during each of calendar year 2008 and future calendar years will exceed ten million dollars ($10,000,000). The Lessee will hold legal title to the Equipment, and federal tax ownership will be deemed to be with the Lessee. The Lessor has not provided nor will it provide tax or accounting advice to the Lessee regarding this transaction or the treatment thereof for tax and accounting purposes. The Lessee has obtained independent tax and accounting advice as it deems necessary. An 8038-G will be provided with respect to each Lease and/or Schedule executed hereunder. SECURITY: Generally, Lessor will be provided with the right to recover the Equipment following an Event of Default, default, or Event of Non-Appropriation. Lessee is obligated to make all Rental and other Payments due under each -3- C:\Documents and Settings\finazodj\Local Settings\Temporazy [ntemet Files\OLK304\Final Terms Sheet v5 FINAL (clean).doc Lease/Schedule subject to its appropriation in each Fiscal Year of sufficient legally available non-ad valorem revenues INTEREST RATE: Pricing of individual Leases and Schedules under the Lease Line of Credit (the "Interest Rates") will be indexed to the AA- Swap Rates for "Fixed Term Rates" and LIBOR for "Floating Rates." The Interest Rates established for each separate Lease/Schedule shall be set between three to five days prior to each transaction's funding date, and shall be based on the one of the following methodologies. The Parties understand that should any of the yields on the Fixed Term Rates or Floating Rates increase or decrease, then a rate adjustment would become necessary. For any Leases or Schedules not already funded under the City's Lease Line of Credit, Lessor reserves the right to modify the following methodologies should either mechanism result in Lessor not receiving its anticipated yield. FIXED TERM RATES: The proposed Fixed Interest Rates are based upon a fixed percentage from the average of the AA- SWAP rates as quoted daily to SunTrust Banks, Inc. and as published in the Wall Street Journal, plus a liquidity premium. The rates would be adjusted by multiplying the like term rate of the AA-SWAP rate as shown in the FRB H.15 statistical release 3 days prior to the funding of a Schedule/Lease by the following percentages: Lease Term % of SWAP Lease Rate* 5 years 82.0% 3.554% 7 years 80.2% 3.651 10 years 81.1 % 3.892% *For sample purposes only, the following rates would have been offered as of December 13, 2007. FLOATING RATES: The proposed Floating Interest Rates are to be reset every six months and based upon six-month LIBOR as quoted to SunTrust Banks, Inc. and as published in the Wall Street Journal, plus a liquidity premium. The rates would be calculated in accordance with the following methodology by multiplying the LIBOR, as published the week ending just prior to the funding or rate reset of a Schedule/Lease, with the corresponding percentage and adding basis points: Percentage of 6- Additional Basis Lease Term Month LIBOR Points 5 years 67% 74 bps 7 years 67% 78 bps 10 years 67% 82 bps -4- C:\Documents and Settings\finarodj\Local Settings\Temporary Internet Files\OLK304\Final Terms Sheet v5 FINAL (clean).doc RATE LOCK: On occasion, Lessee may choose to lock in a fixed rate well in advance of funding by requesting a rate lock from the Lessor for a period of 30 to 90 days. Should Lessee select this option, Lessee shall notify Lessor by email or otherwise in writing, and Lessor will quote the rate of the financing, plus the spread to lock in said rate, at that time. There would be no penalty if the transaction does not occur and the rate lock is not utilized. REIMBURSEMENT: If Lessee intends to be reimbursed for any equipment cost associated, intent for reimbursement from the proceeds of this Final Terms Sheet or any Lease hereunder must be evidenced in form qualifying under the Treasury Regulation Section 1.150.2 and otherwise satisfy all applicable requirements of law. INSURANCE: The Lessee must provide evidence of continuing all-risk property and casualty coverage for the full cost and/or replacement value of the Equipment and liability coverage of at least $1,000,000 per occurrence for each property and bodily injury liability, with a minimum of $3,000,000 aggregate for any Lease or Schedule financed hereunder for the full term thereof. Such property and liability coverages shall, respectively, name Lessor as loss payee and additional insured. Lessee may choose to self-insure on the terms and conditions acceptable to the Lessor. AUTHORIZED SIGNORS: The Lessee's governing body shall provide Lessor with a Master Financing Resolution, and other ancillary resolutions if from time to time warranted, confirming the proper authority authorizing the Lease Line of Credit, confirming the terms and documentation, and authorizing and designating the individual(s) authorized to execute all necessary documents used therein. REPRESENTATIONS, WARRANTIES & COVENANTS: All Leases shall contain customary and reasonable financial and performance representation, warranties and covenants as required in the form of Lease Documents provided by STEFL and approved by a Master Financing Resolution. OPINIONS OF COUNSEL: Special Counsel to the Lessee shall deliver opinions to the Lessor at closing in form and substance satisfactory to the Lessor, and as more fully outlined in the proposed form of Lease Documentation, Exhibit E-l. Additional opinions will be provided by the Lessee's City Attorney in the form of Lease Documentation, Exhibit E-2. An opinion of City Attorney will for each additional schedule shall be issued in the form of Lease Documentation, Exhibit E-3, for each additional Lease Schedule entered into by Lessee. -5- C:\Documents and Settings\finazodjU.ocal Settings\Temporazy Internet Files\OLK304\Final Terms Sheet v5 FINAL (clean).doc FINANCIAL STATEMENTS: Lessee shall provide to Lessor, if it already has not, updated financial statements as needed so that the Lessor has the last three consecutive years of financial information, as well as a current budget, demographics, and proof of appropriation for the ensuing Fiscal Year and such other financial information relating to the ability of Lessee to continue to make timely payments under its Leases and Schedules executed under this Final Terms Sheet as may be reasonably requested by Lessor. PRE-PAYMENT PENALTY: Lessee will have the option to pre-pay the remaining principal balance of any fixed term rate Schedule or Lease, in whole, on any payment due date for 101 % of the remaining unpaid principal balance in addition to the Lease Payment and interest due and owing on that date. The Lessee shall have the right to pre-pay any Floating Rate Lease or Schedule on any payment due date following 30 days prior to written notice to Lessor at par, without premium or penalty. LEASE DOCUMENTATION: Lessor's form of lease documents, exhibits, and attachments ("Lease Documents") will be used. A copy of the Lease Documentation is attached herewith, and has, in substantially the form as presented, been approved for the funding of any Lease Schedules hereunder. The Lessee shall pay the sum of $1,000 to the Lessor upon following acceptance of this Final Terms Sheet as a one time Administrative Fee. An additional documentation fee of $150 per Lease Schedule will be charged, if more than one schedule is required under the Lease Line of Credit. EXPIRATION: The terms contained in this Final Term Sheet must be accepted and finalized by February 22, 2008 (or as otherwise agreed by the parties) or said terms and conditions shall become null and void. Upon acceptance of the terms and conditions and Lease Documentation, the Lessee understands that this is a Guidance Lease Line of Credit, and all funding under this Lease Line of Credit and the attached form of Lease Documentation will not exceed one year from today's date, unless extended by the mutual agreement of the parties. -6- C:\Documents and Settings\finarodjU.ocal Settings\Temporary Internet Files\OLK304\Final Terms Sheet v5 F[NAL (clean).doc FINAL TERMS SHEET: DISCLOSURES & GENERAL DISCLAIMERS City of Miami Beach, Florida This proposal is confidential (until such time as it is received by the City) and may be presented to and reviewed by the City of Miami Beach, Florida, its officers, employees, lawyer, financial advisors, and agents only, until such time as it is accepted by Lessee or presented to the Lessee's governing body for final ratification and approval and award to SunTrust Equipment Finance & Leasing Corp. Neither SunTrust Banks, Inc., nor SunTrust Equipment Finance & Leasing Corp. has authorized the disclosure and/or dissemination of the terms of this proposal to any other person or entity. This Final Terms Sheet and Lease Line of Credit shall not be construed as a commitment to lend by SunTrust Equipment Finance & Leasing Corp. or SunTrust Bank, and approval of the Lease Documentation shall be in SunTrust's sole discretion. Once credit approved any variations to the terms and conditions contained herein, will likewise be subject to the approval by SunTrust and/or its credit and legal departments. As noted previously, interest rate methodologies used to calculate the proposed rates in deals to be funded under the Lease Line of Credit and more fully described herein will be used so long as they accurately reflect the anticipated yield to SunTrust. In the event that unforeseen changes to the current interest rate environment would result in SunTrust not receiving its anticipated yield or return on investment, then Lessor reserves the right to modify the interest rate calculation methodology for any Leases or Schedules not previously executed and funded as draws under the Lease Line of Credit, subject to the reasonable agreement of the Parties. If the Parties cannot mutually agree on a suitable replacement interest rate methodology, then either of the Parties may, without fee, cost, or liability, unilaterally terminate the Lease Line of Credit, or suspend future financings of Lease Schedules under the Master Lease Agreement. The terms and conditions contained in this Final Terms Sheet shall, upon final approval of the Lessee, expire one year from the date of this Final Terms Sheet. Upon the expiration of the this Final Terms Sheet, the Lease Documentation and Final Terms Sheet may be extended for subsequent one year periods, by the mutual agreement of the Parties. Any and all capitalized terms not specifically defined herein shall be given their meaning under the Lease Documents. -7- C:\Documents and Settings\finarodjU.ocal Settings\Temporary Internet Files\OLK304\Final Terms Sheet v5 FINAL (clean).doc FINAL TERMS SHEET: CERTIFICATE OF ACCEPTANCE City of Miami Beach, Florida The Final Terms Sheet, submitted by SunTrust Equipment Finance & Leasing Corp., on January 15, 2008 has been reviewed, agreed to, and accepted by the City of Miami Beach, Florida. AGREED AND ACCEPTED: By: City of Miami Beach, Florida Name: Matti Herrera Bower Title: Mayor -8- C:\Documents and Settings\finazodj\Local Settings\Temporary Internet Files\OLK304\Final Tenns Sheet v5 FINAL (clean).doc EXHIBIT C MASTER LEASE AGREEMENT MIAMI/4212440.4 CITY OF MIAMI BEACH, FLORIDA INDEX TO LEGAL DOCUMENTS NON BANK-QUALIFIED NON-ESCROW Master Lease Agreement No. ,Dated ; Exhibit A -Equipment Schedule No. O1 (To be filed with each Schedule); Acceptance Certificate (To be filed with each Schedule); Payment Schedule (To be filed with each Schedule); Exhibit B-1 -Tax Agreement and Arbitrage Certificate for Combined New Money and Refunding Principal Amounts (filed with schedule O1, 02, and 03 only); Exhibit B-2 -Tax Agreement and Arbitrage Certificate for New Money (to be filed with each schedule) Exhibit C -Master Resolution of Governing Body for Financing up to $37.SMM; Exhibit D -Master Incumbency Certificate for Financing up to $37.SMM; Exhibit E-1 -Opinion of Outside Counsel; Exhibit E-2 -Opinion of. City Attorney; Exhibit E-3 -Form of Opinion of City Attorney for Future Schedules; Exhibit F -Escrow Agreement with Schedule I and Form of Disbursement Request; Exhibit G-1 Confirmation of Outside Insurance (To be filed with each Schedule); Exhibit G-2 Questionnaire for Self-Insurance to Lease and Addendum (To be filed with each Schedule); Form 8038-G (To be filed with each Schedule). 01 /31 /2008: FL-Bq-nest. dot/rev.01 /04stl SUNTRUST EQUIPMENT FINANCE & LEASING CORP. MASTER LEASE AGREEMENT LEASE NUMBER [Ol] This MASTER LEASE AGREEMENT (the "Agreement"), dated as of [DATE] is made and entered into by and between SUNTRUST EQUIPMENT FINANCE & LEASING CORP., a Virginia corporation, as lessor (the "Lessor"), and CITY OF MIAMI BEACH, FLORIDA, a political subdivision of the State of Florida, as lessee ("Lessee"). In consideration of the mutual covenants herein contained, the parties hereto agree as follows: ARTICLE I. DEFINITIONS AND EXHIBITS Section 1.1. Definitions. The following terms have the meanings specified below. "Acceptance Certificate" means each Acceptance Certificate delivered by Lessee as part of an Equipment Schedule certifying as to the delivery, installation and acceptance of Equipment. "Agreement" means this Master Lease Agreement and all Equipment Schedules hereto. "Agreement Date" means the date first written above. "Code" means the Internal Revenue Code of 1986, as amended, together with Treasury Regulations promulgated from time to time thereunder. "Equipment" means all items of property described in Equipment Schedules and subject to this Agreement. "Equipment Group" means each group of Equipment listed in a single Equipment Schedule. "Equipment Schedule" means each sequentially numbered schedule executed by Lessor and Lessee with respect to an Equipment Group. "Escrow Account" means the equipment acquisition account established by Lessor and Lessee with the Escrow Agent pursuant to the Escrow Agreement. "Escrow Agent" means SUNTRUST BANK, a Georgia banking corporation, and any successor escrow agent under the Escrow Agreement . "Escrow Agreement" means the Escrow Agreement, substantially in the form of Exhibit F hereto, to be executed by Lessor, Lessee and the Escrow Agent upon the first funding of an Equipment Schedule using the procedure described in Section 2.4. "Events of Default" means those events described in Section 12.1. "Fiscal Year" means each 12-month fiscal period of Lessee. "Funding Date" means, with respect to each Lease, the date Lessor makes payment to the Vendor(s) named in the related Equipment Schedule or reimburses Lessee for the purchase price of the related Equipment Group or, if the procedure described in Section 2.4 is utilized, the date Lessor deposits funds equal to such purchase price into the Escrow Account. "Interest" means the portion of a Rental Payment designated as and comprising interest as provided in a Payment Schedule. "Lease" means, with respect to each Equipment Group, this Agreement and the Equipment Schedule relating thereto, which together shall constitute a separate contract between Lessor and Lessee relating to such Equipment Group. "Lease Date" means, with respect to each Lease, the date so designated in the related Equipment Schedule. "Lease TetYn" means, with respect to each Equipment Group, the period during which the related Lease is in effect as specified in Section 3.1. "Net Proceeds" means any insurance proceeds or condemnation awards paid with respect to any Equipment remaining after payment O I M I /2008: FL-Bq-nac. DOC/rev.0104st1 2 therefrom of all expenses incurred in the collection thereof. "Non-Appropriation" means the failure of Lessee, Lessee's governing body, or, if applicable, the governmental entity from which Lessee obtains its operating and/or capital funds to appropriate money for any Fiscal Year sufficient for the continued performance by Lessee of all of Lessee's obligations under this Agreement, as evidenced by adoption and ratification of an annual budget without appropriations to pay Rental Payments for the Equipment due in such Fiscal Year and/or resolution specifically prohibiting Lessee from performing its obligations under this Agreement with respect to any Equipment, and from using any moneys to pay any Rental Payments due under this Agreement for a designated Fiscal Year and all subsequent Fiscal Years. "Payment Date" means each date upon which a Rental Payment is due and payable as provided in a Payment Schedule. "Payment Schedule" means the schedule of Rental Payments attached to an Equipment Schedule. "Principal" means the portion of any Rental Payment designated as and comprising principal as provided in a Payment Schedule. "Prepayment Price" means the amount so designated and set forth opposite a Payment Date in a Payment Schedule indicating the amount for which Lessee may purchase the related Equipment Group as of such Payment Date after making the Rental Payment due on such Payment Date. "Rental Payment" means each payment due from Lessee to Lessor on a Payment Date. "Specifications" means the bid specifications and/or purchase order pursuant to which Lessee has ordered any Equipment from a Vendor. "State" means the state or commonwealth in which Lessee is situated. "Vendor" means each of the manufacturers or vendors from which Lessee has ordered or with which Lessee has contracted for the manufacture, delivery and/or installation of the Equipment. Section 1.2. Exhibits. Exhibit A: Equipment Schedule including form of Acceptance Certificate and form of Payment Schedule. Exhibit B-1: Tax Agreement and Arbitrage Certificate for Combined New Money and Refunding Principal Amounts (filed with schedule O1, 02, and 03 only).. Exhibit B-2: Form of Tax Agreement and Arbitrage Certificate for New Money (to be filed with each schedule) Exhibit C: Master Resolution of Governing Body for Financing up to $37.SMM. Exhibit D: Master Incumbency Certificate for Financing up to $37.SMM . Exhibit E-1: Opinion of Outside Counsel. Exhibit E-2: Opinion of City Attorney. Exhibit E-3: Form of Opinion of City Attorney for Future Schedules. Exhibit F: Escrow Agreement with Schedule I and Form of Disbursement Request. Exhibit G-1: Confirmation of Outside Insurance (each Schedule). Exhibit G-2: Questionnaire for Self-Insurance and Addendum to Equipment Schedule Relating to Self-Insurance (each Schedule). Form 8038-G to be filed with each Schedule. ARTICLE II. LEASE OF EQUIPMENT Section 2.1. Acquisition of Equipment. Prior to the addition of any Equipment Group, Lessee shall provide Lessor with a description of the equipment proposed to be subject to a Lease hereunder, including the cost and vendor of such equipment, the expected delivery date and the desired lease terms for such equipment, and such other informafion as the Lessor may require. If Lessor, in its sole discretion, deternunes the proposed equipment may be subject to a Lease hereunder, Lessor shall fiunish to Lessee a proposed Equipment Schedule relating to the Equipment Group for execution by Lessee and then Lessor. By execution hereof, Lessor has made no commitment to lease any equipment to Lessee. Section 2.2. Disbursement. Lessor shall have no obligation to make any disbursement to a Vendor or reimburse Lessee for any payment made to a Vendor for an Equipment Group (or, if the escrow procedure described in Section 2.4 hereof is utilized, consent to a disbursement by the Escrow Agent) until five (5) business days after Lessor has received all of the following in form and substance satisfactory to Lessor: (a) a completed Equipment Schedule executed by Lessee; (b) an Acceptance Certificate in the form included with Exhibit A hereto; (c) a resolution or evidence of other official action taken by or on behalf of the Lessee to authorize the acquisition of the Equipment Group on the terms provided in such Equipment Schedule; (d) a Tax Agreement and Arbitrage Certificate in the form of O I /31 /2008: FL-Bq-nesc.DOC/rev.0104st1 Exhibit B-1 (as applicable) attached hereto; (e) evidence of insurance with respect to the Equipment Group in compliance with Article VII of this Agreement; (f) Vendor invoice(s) and/or bill(s) of sale relating to the Equipment Group, and if such invoices have been paid by Lessee, evidence of payment thereof and evidence of official intent to reimburse such payment as required by the Code; (g) the original certificate of title or manufacturer's certificate of origin and title application, if any, for any Equipment which is part of such Equipment Group and is subject to certificate of title laws; (h) a completed and executed Form 8038-G or 8038-GC, as applicable, or evidence of filing thereof with the Secretary of Treasury; (i) an opinion of counsel to the Lessee substantially in the form of Exhibit E hereto, and (j) any other documents or items reasonably required by Lessor. Section 2.3. Lease: Possession and. Use. Lessor hereby leases the Equipment to Lessee, and Lessee hereby leases the Equipment from Lessor, upon the terms and conditions set forth herein. Lessee shall have quiet use and enjoyment of and peaceably have and hold each Equipment Group during the related Lease Term, except as expressly set forth in this Agreement. Section 2.4. Escrow Procedure. If Lessor and Lessee agree that the cost of an Equipment Group is to be paid from an Escrow Account: (a) Lessor and Lessee shall execute an Escrow Agreement substantially in the form of Exhibit F; (b) Lessor and Lessee shall execute an Equipment Schedule relating to such Equipment Group; and (c) Lessor shall deposit an amount equal to the cost of the Equipment Group into the Escrow Account. All amounts deposited by Lessor into the Escrow Account shall constitute a loan from Lessor to Lessee which shall be repaid by the Rental Payments due under the related Lease. ARTICLE III. TERM Section 3.1. Term. This Agreement shall be in effect from the Agreement Date until the earliest of (a) termination under Section 3.2 or (b) termination under Section 12.2; provided, however, no Equipment Schedules shall be executed after any Non-Appropriation or Event of Default. Each Lease with respect to an Equipment Group shall be in effect for a Lease Term commencing upon the Lease Date and ending as provided in Section 3.4. Section 3.2. Termination by Lessee. In the sole event of Non-Appropriation, this Agreement and each Lease hereunder shall terminate, in whole, but not in part, as to all Equipment effective upon the last day of the Fiscal Year for which funds were appropriated, in the manner and subject to the terms specified in this Article. Lessee will provide Lessor with written notice of termination and by paying to Lessor any Rental Payments and other amounts which are due and have not been paid at or before the end of its then current Fiscal Year. Lessee shall endeavor to give notice of such ternrination not less than ninety (90) days prior to the end of the Fiscal Year for which appropriations were made, and shall notify Lessor of any anticipated termination. The foregoing shall not obviate the Lessee's obligation to return the Equipment in accordance with all other applicable terms and conditions. In the event of termination of this Agreement as provided in this Section, Lessee shall comply with the instructions received from Lessor in accordance with Section 12.3. Section 3.3. Effect of Termination. Upon termination of this Agreement as provided in Section 3.2, Lessee shall not be responsible for the payment of any additional Rental Payments coming due in succeeding Fiscal Years, but if Lessee has not complied with the instructions received from Lessor in accordance with Section 12.3, the termination shall nevertheless be effective, but Lessee shall be responsible for the payment of damages in an amount equal to the amount of the Rental Payments that would thereafter have come due if this Agreement had not been temunated and which are attributable to the number of days after which Lessee fails to comply with Lessor's instructions and for any other loss suffered by Lessor as a result of Lessee's failure to take such actions as required; provided, however, that Lessee shall not be obligated to pay amounts in excess of the funds budgeted and appropriated for payments due under this Agreement in the current Fiscal Year. Section 3.4. Termination of Lease Term. The Lease Term with respect to any Lease will terminate upon the occurrence of the first of the following events: (a) the termination of this Agreement by Lessee in accordance with Section 3.2; (b) the payment of the Prepayment Price by Lessee pursuant to Article V; (c) an Event of Default by Lessee and Lessor's election to terminate such Lease pursuant to Article XII; or (d) the payment by Lessee of all Rental Payments and all other amounts authorized or required to be paid by Lessee pursuant to such Lease. ARTICLE IV. RENTAL PAYMENTS Section 4.1. Rental Payments. Lessor and Lessee confirm their understanding and agreement that (a) all payments due under the Agreement are to be made from any of Lessee's legally available and appropriated revenues from sources other than ad valorem or other expressly prohibited taxes, (b) Lessee shall not be obligated to pay any sums due under the Agreement from the proceeds of ad valorem or other taxes, (c) Lessee's contractual obligations to request annual appropriations from which payments due under the Agreement may be made does not constitute an indebtedness of Lessee within the meaning of any constitutional or statutory provision or limitation, and (d) Lessee is not obligated to appropriate revenues for payments due under this Agreement in any future Fiscal Year. The Lessee agrees to pay the Rental Payments due as specified in the Payment Schedule in Exhibit A, subject to the appropriation in each year of sufficient legally available non ad valorem revenue to make Rental Payments due in such fiscal year. A portion of each Rental Payment is paid as interest as specified in the Payment Schedule of each lease, and the first Rental Payment will include Interest accruing from the Funding Date. Lessor is authorized to insert the due date of the first Rental Payment in the Payment Schedule in Exhibit A. All O 1 /31 /2008: FL-Bq-nest. DOC/rev.0104sti Rental Payments shall be paid to Lessor, or to such assignee(s) Lessor has assigned as stipulated in Article XI, at such places as Lessor or such assignee(s) may from time to time designate by written notice to Lessee. Lessee shall pay the Rental Payments with lawful money of the United States of America from moneys legally available therefor. Section 4.2. Current Expense. The obligations of Lessee, including its obligation to pay the Rental Payments or other amounts due in any Fiscal Year of a Lease Term, shall constitute a current expense of Lessee for such Fiscal Year and shall not constitute an indebtedness of Lessee within the meaning of the Constitution and laws of the State. Nothing herein shall constitute a pledge by Lessee of any taxes or other moneys (other than moneys lawfully appropriated from time to time by or for the benefit of Lessee for this Agreement and the Net Proceeds of the Equipment) to the payment of any Rental Payment or other amount coming due hereunder. Section 4 3. Unconditional Rental Payments. The Lessee's obligation to make Rental Payments and other payments required hereunder shall be absolute and unconditional, subject to the annual appropriation of sufficient legally available non ad valorem revenue to make such payments. Lessee shall make these payments when due and shall not withhold any of these payments pending final resolution of any disputes. 'The Lessee shall not assert any right of set-off or counterclaim against its obligation to make these payments. Lessee's obligation to make Rental Payments or other payments shall not be abated through accident, unforeseen circumstances, failure of the Equipment to perform as desired, damage or destruction to the Equipment, loss of possession of the Equipment or obsolescence of the Equipment. The Lessee shall be obligated to continue to make payments required of it by this Agreement if title to, or temporary use of, the Equipment or any part thereof shall be taken under exercise of the power of eminent domain. ARTICLE V. OPTION TO PREPAY Section 5.1. Option to Prepay. Lessee shall have the option to prepay its obligations under any Lease in whole but not in part on any Payment Date for the then applicable Prepayment Price (which, to the extent provided in the related Payment Schedule, may include a prepayment fee) as set forth in the related Payment Schedule, provided there has been no Non-Appropriation or Event of Default. Section 5.2. Exercise of Option. Lessee shall give notice to Lessor of its intention to exercise its option not less than thirty (30) days prior to the Payment Date on which the option will be exercised and shall pay to Lessor not later than such Payment Date an amount equal to all Rental Payments and any other amounts then due or past due under the related Lease (including the Rental Payment due on the Payment Date on which the option shall be effective) and the applicable Prepayment Price set forth in the related Payment Schedule. In the event that all such amounts are not received by Lessor on such Payment Date, such notice by Lessee of exercise of shall be void and the related Lease shall continue in full force and effect. Section 5.3. Release of Lessor's Interest. Upon receipt of the Prepayment Price in good funds with respect to any Equipment Group, the Lease with respect to such Equipment Group shall terminate and Lessee shall become entitled to such Equipment Group AS IS, WHERE IS, WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY LESSEE, except that such Equipment Group shall not be subject to any lien or encumbrance created by or arising through Lessor. ARTICLE VI. REPRESENTATIONS, WARRANTIES AND COVENANTS Section 6.1. Representations and Warranties of Lessee. Lessee represents and warrants as of the Agreement Date and as of each Lease Date as follows: (a) Lessee is a state or political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and existing under the Constitution and laws of the State, and is authorized under the Constitution and laws of the State to enter into this Agreement, each Lease and the transactions contemplated hereby and thereby, and to perform all of its obligations under this Agreement and each Lease. (b) The execution and delivery of this Agreement and each Lease have been duly authorized by all necessary action of Lessee's governing body and such action is in compliance with all public bidding and other State and federal laws applicable to this Agreement, each Lease and the acquisition and fmancing of the Equipment by Lessee. (c) 'This Agreement and each Lease have been duly executed and delivered by and constitutes the valid and binding obligation of Lessee, enforceable against Lessee in accordance with their respective terms. (d) The execution, delivery and performance of this Agreement and each Lease by Lessee shall not (i) violate any State or federal law or local law or ordinance, or any order, writ, injunction, decree, or regulation of any court or other governmental agency or body applicable to Lessee, or (ii) conflict with or result in the breach or violation of any term or provision of, or constitute a default under, any note, bond, mortgage, indenture, agreement, deed of trust, lease or other obligation to which Lessee is bound. (e) There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Lessee's knowledge, threatened against or affecting Lessee, challenging Lessee's authority to enter into this Agreement or any Lease or any other action wherein an unfavorable ruling or fmding would adversely affect the enforceability of this Agreement or any Lease. (f) No lease, rental agreement, lease-purchase agreement, payment agreement or contract for purchase to which Lessee has been a Ol /} 112008: FL-Bq-nesc.DOC/rev.Ol04stl party at any time during the past ten (10) years has been terminated by Lessee as a result of insufficient funds being appropriated in any Fiscal Year. No event has occurred which would constitute apayment-related event of default under any debt, revenue bond or obligation which Lessee has issued during the past ten (10) years. (g) Lessee or Lessee's governing body has appropriated and/or taken other lawful actions necessary to provide moneys sufficient to pay all Rental Payments during the current Fiscal Year, and such moneys will be applied in payment of all Rental Payments due and payable during such current Fiscal Year. (h) Lessee has an immediate need for, and expects to make immediate use of, the Equipment, which need is not temporary or expected to diminish during the applicable Lease Term. Lessee presently intends to continue each Lease hereunder for its entire Lease Term and to pay all Rental Payments relating thereto. Section 6.2. Covenants of Lessee. Lessee agrees that so long as any Rental Payments or other amounts due under this Agreement remain unpaid: (a) Lessee shall not install, use, operate or maintain the Equipment improperly, carelessly, in violation of any applicable law or regulation or in a manner contrary to that contemplated by this Agreement. Lessee shall obtain and maintain all permits and licenses necessary for the installation and operation of the Equipment. Lessee shall not, without the prior written consent of Lessor, affix or install any accessory equipment or device on any of the Equipment if such addition would change or impair the originally intended functions, value or use of such Equipment. (b) Lessee shall provide Lessor access at all reasonable times to examine and inspect the Equipment and provide Lessor with such access to the Equipment as may be reasonably necessary to perform maintenance on the Equipment in the event of failure by Lessee to perform its obligations hereunder. (c) Lessee shall not, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or other claim with respect to the Equipment, other than the respective rights of Lessor and Lessee as herein provided. Lessee shall promptly, at its own expense, take such actions as may be necessary duly to discharge or remove any such claim if the same shall arise at any time. Lessee shall reimburse Lessor for any expense incurred by Lessor in order to discharge or remove any such claim. (d) The person or entity in charge of preparing Lessee's budget intends to, but is not obligated to, include in the budget request for each Fiscal Year the Rental Payments to become due during such Fiscal Year, and, to the extent included in the budget for a Fiscal Year, will use reasonable and lawful means to secure the appropriation of money for such Fiscal Year sufficient to pay all Rental Payments coming due therein. Lessor acknowledges that appropriation for Rental Payments is a discretionary governmental function which Lessee cannot contractually commit itself in advance to perform. Lessee acknowledges that this Agreement does not constitute such a commitment. However, Lessee reasonably believes that moneys in an amount sufficient to make all Rental Payments can be lawfully appropriated and made available to pemut Lessee's continued utilization of the Equipment in the performance of its essential functions during the applicable Lease Terms. (e) Lessee shall assure that its obligation to pay Rental Payments is not directly or indirectly secured by any interest in property, other than Lessor's interest in the Equipment as provided hereunder, and that the Rental Payments will not be directly or indirectly secured by or derived from any payments of any type or any fund other than Lessee's general purpose fund. (f) Upon Lessor's request, Lessee shall provide Lessor with current financial statements, budgets, and proof of appropriation for the ensuing Fiscal Year and such other financial information relating to the ability of Lessee to continue this Agreement and each Lease as may be reasonably requested by Lessor. (g) Lessee shall promptly and duly execute and deliver to Lessor such fiuther documents, instruments and assurances and take such further action as Lessor may from time to time reasonably request in order to carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created in favor of Lessor hereunder. Section 6.3. Tax Related Representations, Warranties and Covenants. (a) Incorporation of Tax Agreement and Arbitrage Certificate. As of each Lease Date and with respect each Lease, Lessee makes each of the representations, wan anfies and covenants contained in the Tax Agreement and Arbitrage Certificate delivered with respect to such Lease. By this reference each such Tax Agreement and Arbitrage Certificate is incorporated in and made a part of this Agreement. (b) Event of Taxability. If Lessor either (i) receives a fmal, non-appealable notice, in any form, from the Internal Revenue Service or (ii) reasonably determines, based on an opinion of independent and nationally recognized tax counsel selected by Lessor, that Lessor may not exclude any Interest paid under any Lease from its Federal gross income (each an "Event of Taxability"), the Lessee shall pay to Lessor upon demand (x) an amount which, with respect to Rental Payments previously paid and taking into account all penalties, fines, interest and additions to tax (including all federal, state and local taxes [state and local taxes only to the extent that such taxes are imposed by the Lessee's taxing authority or some other taxing authority with jurisdiction due to the location of the Equipment] imposed, and actually paid, on the Interest due through the date of such event), will restore to Lessor its after-tax yield (assuming tax at the highest marginal tax rate and taking into account the time of receipt of Rental Payments and reinvestment at the after-tax yield rate) on the transaction evidenced by such Lease through the date of such event and (y) as additional Rental Payments to Lessor on each succeeding Payment Date such amount O 1 /31 /2008: FL-Bq-nes~.I)OC/rev.0104st1 as will maintain such after-tax yield to Lessor. ARTICLE VII. INSURANCE AND RISK OF LOSS Section 71 Liability and Property Insurance. Lessee shall, at its own expense, procure and maintain continuously in effect during each Lease Term: (a) public liability insurance for death or injuries to persons, or damage to property arising out of or in any way connected to the Equipment sufficient to protect Lessor and/or assigns from liability in all events, with a coverage of not less than $1,000,000 per occurrence unless specified differently in the related Equipment Schedule, and (b) insurance against such hazards as Lessor may require, including, but not limited to, all-risk casualty and property insurance; in an amount equal to the greater of the full replacement cost of the Equipment or the applicable Prepayment Price of each Equipment Group. Section 7 2 Workers' Compensation Insurance. If required by State law, Lessee shall carry workers' compensation insurance covering all employees on, in, near or about the Equipment, and upon request, shall furnish to Lessor certificates evidencing such coverage throughout the Lease Term. Section 7.3. Insurance Requirements. (a) Insurance Policies. All insurance policies required by this Article shall be taken out and maintained with insurance companies acceptable to Lessor and shall contain a provision that thirty (30) days prior to any change in the coverage the insurer must provide written notice to the insured parties. No insurance shall be subject to any co-insurance clause. Each insurance policy shall name Lessor and/or its assigns as an additional insured party and loss payee regardless of any breach of warranty or other act or omission of Lessee and shall include a lender's loss payable endorsement for the benefit of Lessor and/or is assigns. Prior to the delivery of Equipment, Lessee shall deposit with Lessor evidence satisfactory to Lessor of such insurance and, prior to the expiration thereof, shall provide Lessor evidence of all renewals or replacements thereof. (b) Self Insurance. With Lessor's prior consent, Lessee may self-insure the Equipment by means of an adequate insurance fund set aside and maintained for that purpose which must be fully described in a letter delivered to Lessor in form acceptable to Lessor. Once Lessor's consent to permit the Lessee to self-insure has been given, the Lessor cannot rescind such consent unless the Lessee's credit and/or bond rating has been downgraded to less than BBB. (c) Evidence of Insurance. Lessee shall deliver to Lessor upon acceptance of any Equipment evidence of insurance which complies with this Article VII with respect to such Equipment to the satisfaction of Lessor, including, without limitation, the confirmation of insurance in the form of Exhibit G-1 attached hereto together with Certificates of Insurance, when available, or the Questionnaire for Self- Insurance and Addendum to Equipment Schedule Relating to Self-Insurance in the form of Exhibit G-2 attached hereto, as applicable. Section 7.4. Risk of Loss. To the extent pernutted by applicable laws of the State, as between Lessor and Lessee, Lessee assumes all risks and liabilities from any cause whatsoever, whether or not covered by insurance, for loss or damage to any Equipment and for injury to or death of any person or damage to any property. Whether or not covered by insurance, to the extent not expressly prohibited by the applicable laws of the State, Lessee hereby assumes responsibility for and agrees to indemnify Lessor from all liabilities, obligations, losses, damages, penalties, claims, actions, costs and expenses, including reasonable attorneys' fees, imposed on, incurred by or asserted against Lessor that relate to or arise out of this Agreement, including but not limited to, (a) the selection, manufacture, purchase, acceptance or rejection of Equipment or the ownership of the Equipment, (b) the delivery, lease, possession, maintenance, use, condition, return or operation of the Equipment, (c) the condition of the Equipment sold or otherwise disposed of after possession by Lessee, (d) the conduct of Lessee, its officers, employees and agents, (e) a breach of Lessee of any of its covenants or obligations hereunder, (f) any claim, loss, cost or expense involving alleged damage to the environment relating to the Equipment, including, but not limited to investigation, removal, cleanup and remedial costs, and (g) any strict liability under the laws or judicial decisions of any state or the United States. This provision shall survive the termination of this Agreement. Section 7.5. Destruction of Equipment. Lessee shall provide a complete written report to Lessor immediately upon any loss, theft, damage or destruction of any Equipment and of any accident involving any Equipment. Lessor may inspect the Equipment at any time and from time to time during regular business hours. If all or any part of the Equipment is stolen, lost, destroyed or damaged beyond repair ("Damaged Equipment"), Lessee shall within thirty (30) days after such event either: (a) replace the same at Lessee's sole expense with equipment having substantially similar Specifications and of equal or greater value to the Damaged Equipment immediately prior to the time of the loss occurrence, such replacement equipment to be subject to Lessor's approval, whereupon such replacement equipment shall be substituted in the applicable Lease and the other related documents by appropriate endorsement or amendment; or (b) pay the applicable Prepayment Price of the Damaged Equipment determined as set forth in the related Equipment Schedule. Lessee shall notify Lessor of which course of action it will take within fifteen (15) days after the loss occurrence. If, within forty-five (45) days of the loss occurrence, (a) Lessee fails to notify Lessor; (b) Lessee and Lessor fail to execute an amendment to the applicable Equipment Schedule to delete the Damaged Equipment and add the replacement equipment or (c) Lessee has failed to pay the applicable Prepayment Price, then Lessor may, at its sole discretion, declare the applicable Prepayment Price of the Damaged Equipment, to be immediately due and payable. The Net Proceeds of insurance with respect to the Damaged Equipment shall be made available by Lessor to be applied to discharge Lessee' obligation under this Section. 01 /31 /2008: FL-Bq-nesc. DOC/rev.0104stI ARTICLE VIII. OTHER OBLIGATIONS OF LESSEE Section 8.1. Maintenance of Equipment. Lessee shall notify Lessor in writing prior to moving the Equipment to another address and shall otherwise keep the Equipment at the address specified in the related Equipment Schedule. Lessee shall, at its own expense, maintain the Equipment in proper working order and shall make all necessary repairs and replacements to keep the Equipment in such condition including compliance with State and federal laws. Any and all replacement parts must be free of encumbrances and liens. All such replacement parts and accessories shall be deemed to be incorporated immediately into and to constitute an integral portion of the Equipment and as such, shall be subject to the terms of this Agreement. Section 8.2. Taxes. Lessee shall pay all taxes and other charges which are assessed or levied against the Equipment, the Rental Payments or any part thereof, or which become due during the Lease Term, whether assessed against Lessee or Lessor, except as expressly limited by this Section. Lessee shall pay all utilities and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the Equipment, and all special assessments and charges lawfully made by any governmental body that may be secured by a lien on the Equipment. Lessee shall not be required to pay any federal, state or local income, succession, transfer, franchise, profit, excess profit, capital stock, gross receipts, corporate, or other similar tax payable by Lessor, its successors or assigns, unless such tax is made as a substitute for any tax, assessment or charge which is the obligation of Lessee under this Section. Section 8.3. Advances. If Lessee shall fail to perform any of its obligations under this Article, Lessor may take such action to cure such failure, including the advancement of money, and Lessee shall be obligated to repay all such advances on demand, with interest at the rate of 18% per annum or the maximum rate permitted by law, whichever is less, from the date of the advance to the date of repayment. ARTICLE IX. TITLE Section 9.1. Title. During the Lease Term and subject to the rights of the Lessor under Section 12.2 and 12.3 hereof, ownership and legal title of all Equipment and all replacements, substitutions, repairs and modification shall be in Lessee and Lessee shall take all action necessary to vest such ownership and title in Lessee. Lessor is merely financing the acquisition of such equipment for Lessee. Lessor has not been in the chain of title of the Equipment, does not operate, control or have possession of the Equipment and has no control over the Lessee or the Lessee's operation, use, storage or maintenance of the Equipment. Section 9.2. Security Interest. All provisions referencing Lessor having a security interest in the Equipment are hereby cancelled and shall not have any force or effect. Lessor and Lessee agree that the Agreement does not result in the creation of any lien, charge, security interest or other encumbrance upon the Equipment or any other asset of Lessee. Section 9.3. Modification of Equipment. Lessee will not, without the prior written consent of Lessor, affix or install any accessory equipment or device on any of the Equipment if such addition will change or impair the originally intended value, function or use of the Equipment. Section 9.4. Personal Property. The Equipment is and shall at all times be and remain personal property and not fixtures. ARTICLE X. WARRANTIES Section 10.1. Selection of Equipment. Each Vendor and all of the Equipment have been selected by Lessee. Lessor shall have no responsibility in connection with the selection of the Equipment, the ordering of the Equipment, its suitability for the use intended by Lessee, the acceptance by any Vendor or its sales representative of any order submitted, or any delay or failure by such Vendor or its sales representative to manufacture, deliver or install any Equipment for use by Lessee. Section 10.2. Vendor's Warranties. Lessor hereby assigns to Lessee for and during the related Lease Term, all of its interest, if any, in all Vendor's warranties, guarantees and patent indemnity protection, express or implied issued on or applicable to an Equipment Group, and Lessee may obtain the customary services furnished in connection with such warranties and guarantees at Lessee's expense. Lessor has no obligation to enforce any Vendor's warranties or obligations on behalf of itself or Lessee. Section 10.3. Disclaimer of Warranties. LESSEE ACKNOWLEDGES THAT THE EQUIPMENT IS OF A SIZE, DESIGN, CAPACITY, AND MANUFACTURE SELECTED BY LESSEE. LESSEE ACKNOWLEDGES THAT IT SELECTED THE EQUIPMENT WITHOUT ASSISTANCE OF LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR IS NOT A MANUFACTURER OF THE EQUIPMENT OR A DEALER IN SIMILAR EQUIPMENT, AND DOES NOT INSPECT THE EQUIPMENT BEFORE DELIVERY TO LESSEE. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, QUALITY, DURABILITY, SUITABILITY, MERCHANT-ABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY LESSEE OF THE EQUIPMENT, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE EQUIPMENT. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE EQUIPMENT OR LESSEE'S USE OF THE EQUIPMENT. ARTICLE XI. ASSIGNMENT AND SUBLEASING O I /31 /2008: FL-Bq-nesc. DOC/rev.0104st1 Section 11.1. Assignment by Lessor. Lessor, without Lessee's consent, may assign and reassign all of Lessor's right, title and/or interest in and to this Agreement or any Lease, including, but not limited to, the Rental Payments and other amounts payable by Lessee and Lessor's interest in the Equipment, in whole or in part to one or more assignees or subassignee(s) by Lessor at any time. No such assignment shall be effective as against Lessee unless and until written notice of the assignment is provided to Lessee. When presented with a notice of assignment, Lessee will acknowledge in writing receipt of such notice for the benefit of Lessor and any assignee. Lessee shall keep a complete and accurate record of all such assignments. Section 11.2. Assignment and Subleasing by Lessee. Neither this Agreement nor any Lease or any Equipment may be assigned, subleased, sold, transferred, pledged or mortgaged by Lessee. ARTICLE XII. EVENTS OF DEFAULT AND REMEDIES Section 12.1. Events of Default Defined. The occurrence of any of the following events shall constitute an Event of Default under this Agreement and each Lease: (a) Lessee's failure to pay, within ten (10) days following the due date thereof, any Rental Payment or other amount required to be paid to Lessor (other than by reason of Non-Appropriation). (b) Lessee's failure to maintain insurance as required by Article VII. (c) With the exception of the above clauses (a) & (b), Lessee's failure to perform or abide by any condition, agreement or covenant for a period of thirty (30) days after written notice by Lessor to Lessee specifying such failure and requesting that it be remedied, unless Lessor shall agree in writing to an extension of time prior to its expiration. (d) Lessor's reasonable determination that any representation or warranty made by Lessee in this Agreement was untrue in any material respect upon execution of this Agreement or any Equipment Schedule. (e) The occurrence of an Event of Taxability. (f) The filing of a petition in bankruptcy by or against Lessee, or failure by Lessee promptly to lift any execution, garnishment or attachment of such consequence as would impair the ability of Lessee to carry on its governmental functions or assignment by Lessee for the benefit of creditors, or the entry by Lessee into an agreement of composition with creditors, or the approval by a court of competent jurisdiction of any adjustment of indebtedness of Lessee, or the dissolution or liquidation of Lessee. Section 12.2. Remedies on Default. In the event of default by Lessee under the Agreement, Lessor's sole remedies shall be to sue Lessee for compensatory damages, which Lessee agrees to pay, subject to Article IV hereof, and which are hereby agreed to be the Prepayment Price applicable to the immediately preceding Rental Payment due date, as set forth on the Payment Schedule, plus any Rental Payments accrued and unpaid as of the date of default, provided that in the event that Lessee voluntarily returns the Equipment to Lessor to a location specified by Lessor, at Lessee's sole risk, cost and expense and in the condition required by Section 8.1 of the Agreement, Lessor shall not have any further remedies against Lessee. Lessor shall also have the right in the event of default to exercise any other right, remedy or privilege which may be available to it, including without limitation proceedings by appropriate court action to require specific performances of any provision of the Agreement other than Lessee's covenant to return possession of and title to the Equipment, which covenant shall not be subject to enforcement by specific performance. Lessee shall remain liable for all reasonable legal fees and other costs and expenses; including court costs, incurred by Lessor in the enforcement of its remedies under the Agreement except to the extent prohibited by the Constitution and laws of the State of Florida. Section 12.3. Return of Equipment: Release of Lessee's Interest. With respect to any provision of the Agreement requiring Lessee to return all or any portion of the Equipment to Lessor or to transfer title to all or any portion of the equipment to Lessor, Lessee agrees to voluntarily do so. Upon return of Equipment to the Lessor due to an event of Non-Appropriation or the occurrence of an Event of Default, the Lessor shall use commercially reasonable efforts to sell or lease or cost efficiently dispose of such Equipment as the case is conditioned upon the Equipment and market variables. If the Lessee returns the Equipment for any reason not related to Non- Appropriation 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 provided in Section 12.4, Upon return of Equipment to the Lessor due to an event of Non- Appropriation, Lessee shall not be liable for any deficiency after sale, lease or other disposition of the Equipment. In the event that Lessee fails for refuses to return or transfer the Equipment or title thereto voluntarily as set forth above, Lessor acknowledges that the Agreement does not and shall not create a right in Lessor to involuntarily dispossess Lessee of title to or possession of all or any item of the Equipment. In lieu of such right Lessor shall be entitled to and Lessee agrees to pay to Lessor immediately, but only from Lessee's legally available and appropriated revenues from sources other than ad valorem or other taxes, the Prepayment Price applicable to the immediately preceding Rental Payment due date, as set forth on the Payment Schedule, plus any Rental Payments accrued and unpaid as of the date of such payment. Section 12.4 Application of Moneys. Any net proceeds from the sale, lease or other disposition of Equipment by the Lessor following the occurrence of an Event of Default shall be applied in the following order of priority: FIRST, to pay all the Lessor's costs, charges and expenses incurred in taking, holding, repairing, selling, leasing or otherwise disposing of such Equipment, then SECOND, to the extent not previously paid by Lessee, to pay Lessor all Rental Payments under the applicable Lease through the termination date, 9 O l /31 /2008: FL.-Bq-nest. DOC/rev.0104st1 then THIRD, to pay the Prepayment Price applicable as of the end of the then current Fiscal Year as set forth in the related Payment Schedule and then FOURTH, to pay any remainder to the Lessee. Any net proceeds form the sale, lease or other disposition of Equipment by the Lessor following an event of Non-Appropriation shall be kept by the Lessor and applied in any manner that the Lessor determines Section 12.5 Late Charge. Lessor shall have the right to require late payment charge for each Rental or any other amount due hereunder which is not paid within 10 days of the date when due equal to the lesser of 5% of each late payment or the legal maximum. This Section is only applicable to the extent it does not affect the validity of this Agreement. ARTICLE XIII. MISCELLANEOUS PROVISIONS Section 13.1. Notices. All written notices to be given under this Agreement shall be given by mail to the party entitled thereto at its address specified beneath each party's signature, or at such address as the party may provide to the other parties hereto in writing from time to time. Any such notice shall be deemed to have been received 72 hours after deposit in the United States mail in registered or certified fom~, with postage fully prepaid, or, if given by other means, when delivered at the address specified in this Section 13.1. Section 13.2. Binding Effect. This Agreement and each Lease hereunder shall be binding upon and shall inure to the benefit of Lessor and Lessee and their respective successors and assigns. Specifically, as used herein the term "Lessor" means any person or entity to whom Lessor has assigned its right to receive Rental Payments under any Lease. Section 13.3. 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. Section 13.4. Entire Agreement; Amendments. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous writings, understandings, agreements, solicitation documents and representations, express or implied. This Agreement may be amended or modified only by written documents duly authorized, executed and delivered by Lessor and Lessee. Section 13.5. Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions, Articles, Sections or Clauses hereof. Section 13.6. Further Assurances and Corrective Instruments. Lessor and Lessee agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such fiuther instruments as may reasonably be required for correcting any inadequate or incorrect description of the Equipment hereby leased or intended so to be, or for otherwise carrying out the expressed, intention of this Agreement. Section 13.7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State. Section 13.8. Usury. It is the intention of the parties hereto to comply with any applicable usury laws; accordingly, it is agreed that, notwithstanding any provisions to the contrary herein or in any Equipment Schedule, in no event shall this Agreement or any Lease hereunder require the payment or permit the collection of Interest or any amount in the nature of Interest or fees in excess of the maximum amount permitted by applicable law. Any such excess Interest or fees shall first be applied to reduce Principal, and when no Principal remains, refunded to Lessee. In determining whether the Interest paid or payable exceeds the highest lawful rate, the total amount of Interest shall be spread through the applicable Lease Term so that the Interest is uniform through such term. Section 13.9. Lessee's Performance. A failure or delay of Lessor to enforce any of the provisions of this Agreement or any Lease shall in no way be construed to be a waiver of such provision. Section 13.10. Waiver of Jury Trial. Lessor and Lessee hereby waive any right to trial by jury in any action or proceeding with respect to, in connection with or arising out of this Agreement. Section 13.11. USA Patriot Act Compliance Notification. Along with all other U.S. Financial institutions, Lessor began complying with Section 326 of the USA Patriot Act effective October 1, 2003. Designed to assist the government in preventing the funding of terrorist and money laundering activities, this section of the USA Patriot Act requires Lessor to know the business entities that are new to SUNTRUST EQUIPMENT FINANCE & LEASING CORP. To accomplish this Lessor will obtain, verify and record information that identifies business entities that open new accounts with Lessor. What this means to Lessee: when Lessee opens an account with Lessor for Lessee's business, Lessor will ask Lessee for business name, physical address, taxpayer identification number and other information that will allow Lessor to verify Lessee's company's identity. The information requested may include documents, such as Lessee's charter or Articles of Incorporation which will verify the identifying information Lessee is giving Lessor. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 10 O I /31 /2008: FL-Bq-nest. DOC/rev.0104st1 EXECUTION PAGE OF MASTER LEASE AGREEMENT LEASE NUMBER [Ol] IN WITNESS WHEREOF, Lessor has caused this Agreement to be executed in its corporate name by its duly authorized officer, and Lessee has caused this Agreement to be executed in its name by its duly authorized officer. CITY OF MIAMI BEACH, FLORIDA, Lessee SUNTRUST EQUIPMENT FINANCE & LEASING CORP., Lessor By: Name: Matti Herrera Bower Title: Mayor Date: Address: 1700 Convention Center Drive Finance Department; 3rd Floor C/O Chief Financial Officer Miami Beach, FL 33139 Telephone: 305/673-7466 Facsimile: 305/673-7795 Name: Donald S. Keough Title: Vice President Date: Address: 300 East Joppa Road, 7th Floor Towson, MD 21286 Telephone: 410/307-6648 Facsimile: 410/307-6702 11 O I /31 /2008: FLBq-nest. DOC/rev.0104st1 EXHIBIT A EQUIPMENT SCHEDULE NO.Ol TO LEASE NO. (Ol] The following Equipment comprises an Equipment Group which is the subject of the Master Lease Agreement dated as [DATE] (the "Agreement") between the undersigned Lessor and Lessee. The Agreement is incorporated herein in its entirety, and Lessee hereby reaffirms each of its representations, warranties and covenants contained in the Agreement. Lessee warrants that no Non-Appropriation and no Event of Default, or event which, with the passage of time or the giving of notice or both, would constitute an Event of Default, has occurred under the Agreement. An Acceptance Certificate and Payment Schedule are attached to this Equipment Schedule and by reference are made a part hereof. The terms capitalized in this Equipment Schedule but not defined herein shall have the meanings assigned to them in the Agreement. EOUIPMENT GROUP The cost of the Equipment Group to be funded by Lessee under this Lease is [FUNDING AMOUNT] (the "Acquisition Cost"). 'The Equipment Group consists of the following Equipment which has been or shall be purchased from the Vendor(s) named below for the prices set forth below: [DESCRIBE EQUIPMENT GENERALLY; INCLUDE VENDORS AND PRICES] The Equipment Group is or will be located at the following address(es). Prior to relocation of the Equipment Group or any portion thereof during the Lease Term, Lessee will provide written notice to Lessor: [ADDRESS] CITY OF MIAMI BEACH, FLORIDA, Lessee By: Name: Patricia D. Walker Title: Chief Financial Officer Date: Address: 1700 Convention Center Drive Finance Department; 3rd Floor C/O Chief Financial Officer Miami Beach, FL 33139 Telephone: 305/673-7466 Facsimile: 305/673-7795 SUNTRUST EQUIPMENT FINANCE & LEASING CORP., Lessor By: Name: Donald S. Keough Title: Vice President Date: Address: 300 East Joppa Road, 7th Floor Towson, MD 21286 Telephone: 410/307-6648 Facsimile: 410/307-6702 12 01/31 /2008: FL-Bq-nesc.DOC/rev.0104st1 Lease No.: [O1 ] Equipment Schedule: O1 ACCEPTANCE CERTIFICATE I, the undersigned, hereby certify that I am the duly qualified and acting officer of the Lessee identified below and, with respect to the above referenced Equipment Schedule and Lease, that: 1. 'The Equipment described below has been delivered and installed in accordance with Lessee's specifications, is in good working order and is fully operational and has been fully accepted by Lessee on or before the date indicated below: [DESCRIBE EQUIPMENT; INCLUDE SERIAL NUMBERS OR OTHER IDENTIFYING INFORMATION; INCLUDE VENDORS AND INVOICE PRICES; MAY BE DONE AS ATTACHMENT] 2. Attached are (a) evidence of insurance with respect to the Equipment in compliance with Article VII of the Agreement; (b) Vendor invoice(s) and/or bill(s) of sale relating to the Equipment, and if such invoices have been paid by Lessee, evidence of payment thereof (evidence of official intent to reimburse such payment as required by the Code having been delivered separately by Lessee); and (c) and/or the original certificate of title or manufacturer's certificate of origin and title application, if any, for any Equipment which is subject to certificate of title laws. 3. Rental Payments shall be due and payable by Lessee on the dates and in the amounts indicated on the Payment Schedule attached to the Equipment Schedule. Lessee has appropriated and/or taken other lawful actions necessary to provide moneys sufficient to pay all Rental Payments required to be paid under the Lease during the current Fiscal Year of Lessee. Such moneys will be applied in payment of all such Rental Payments due and payable during such current Fiscal Year. Lessee anticipates that sufficient funds shall be available to make all Rental Payments due in subsequent Fiscal Years. 4. Lessee hereby authorizes and directs Lessor to fund the Acquisition Cost of the Equipment by paying, or directing the payment by the Escrow Agent (if applicable) of, the invoice prices to the Vendor(s), in each case as set forth above, or by reimbursing Lessee in the event such invoice prices have been previously paid by Lessee. 5. Final Acceptance Certificate. This Acceptance Certificate constitutes fmal acceptance of all of the Equipment identified in the Equipment Schedule described above. Lessee certifies that upon payment in accordance with paragraph 4 above, or direction to the Escrow Agent (if applicable) to make payment, Lessor shall have fully and satisfactorily performed all of its covenants and obligations under the Lease. [CHECK BOX IF APPLICABLE.] CITY OF MIAMI BEACH, FLORIDA, Lessee By: Name: Patricia D. Walker Title: Chief Financial Officer Date: 13 O 1 /31!2008: FL-Bq-nest. DOC/rev.0104st1 Lease Number: [O1 ] Equipment Schedule: O1 PAYMENT SCHEDULE The Funding Date with respect to the above referenced Equipment Group shall be [DATE]. The Annual Interest Rate applicable to the Equipment Group shall be %. Lessee will make Rental Payments each consisting of Principal and Interest as set forth below for a terns of years. The first Rental Payment is due on and subsequent payments are due [monthly][quarterly] [semi-annually] [annually] on like date thereafter. Payment Payment Total Principal Interest Prepayment Number Date Payment Component Component Price* CITY OF MIAMI BEACH, FLORIDA, Lessee By: Name: Patricia D. Walker Title: Chief Financial Officer Date: * After payment of Rental Payment due on such date. 14 O I /3 I /2008: FL-Bq-nest. DO C/rev.0104st1 EXHIBIT B-1 Lease Number: [O1 ] Equipment Schedule: O1 TAX AGREEMENT AND ARBITRAGE CERTIFICATE This TAX AGREEMENT AND ARBITRAGE CERTIFICATE (this "Certificate") is issued by CITY OF MIAMI BEACH, FLORIDA ("Lessee") in favor of SUNTRUST EQUIPMENT FINANCE & LEASING CORP. ("Lessor") in connection with that certain Master Lease Agreement dated as of [DATE] (the "Agreement"), by and between Lessor and Lessee. The terms capitalized herein but not defined herein shall have the meanings assigned to them in the Agreement. Section 1. In General. 1.1 This Certificate is executed for the purpose of establishing the reasonable expectations of Lessee as to future events regarding the financing and refinancing of certain equipment (as applicable, the "Refinanced Equipment", the "New Money Equipment" and collectively the "Equipment") to be acquired by Lessor and leased to Lessee pursuant to and in accordance with the Equipment Schedule referenced above (the "Equipment Schedule") executed under the Agreement (together with all related documents executed pursuant thereto and contemporaneously herewith, the "Financing Documents"). As described in the Financing Documents, Lessor shall apply [NEW MONEY FUNDING AMOUNT] (the "New Money Principal Amount") and [REFINANCING FUNDING AMOUNT] (the "Refinancing Principal Amount") (collectively, the New Money Principal Amount and the Refinancing Principal Amount shall be known as the "Principal Amount") toward the acquisition of the Equipment and Lessee shall make Rental Payments under the terms and conditions as set forth in the Financing Documents. 1.2. The individual executing this Certificate on behalf of Lessee is an officer of Lessee delegated with the responsibility of reviewing and executing the Financing Documents, pursuant to the resolution or other official action of Lessee adopted with respect to the Financing Documents, a copy of which has been delivered to Lessor. 1.3. The Financing Documents are being entered into for the purpose of providing funds for financing and refinancing the Refinanced Equipment and the cost of acquiring, equipping and installing the New Money Equipment which is essential to the governmental functions of Lessee, which Equipment is described in the Equipment Schedule. The New Money Principal Amount will be disbursed by Lessor on or promptly after the date of issuance of the Financirtg Documents to acquire the New Money Equipment. The Refinancing Principal Amount will be deposited in escrow by Lessor on the date of issuance of the Financing Documents and held by SUNTRUST BANK, as escrow agent (the "Escrow Agent") pending the payment of the Refinancing Principal Amount to the current lessor of the Refmanced Equipment under the terms of that certain Escrow Agreement dated as of [DATE], (the "Escrow Agreement"), by and among Lessor, Lessee, and Escrow Agent. 1.4. Lessee will timely file for each payment schedule issued under the Lease a Form 8038-G (or, if the invoice price of the Equipment under such schedule is less than $100,000, a Form 8038-GC) relating to such Lease with the Internal Revenue Service in accordance with Section 149(e) of the Internal Revenue Code of 1986, as amended (the "Code"). Section 2. Non-Arbitrage Certifications. 2.1. The Rental Payments due under the Financing Documents will be made with monies retained in Lessee's general operating fund (or an account or subaccount therein). No sinking, debt service, reserve or similar fund or account will be created or maintained for the payment of the Rental Payments due under the Financing Documents or pledged as security therefor. 2.2. There have been and will be issued no obligations by or on behalf of Lessee that would be deemed to be (i) issued or sold within fifteen (15) days before or after the date of issuance of the Financing Documents, (ii) issued or sold pursuant to a common plan of financing with the Financing Documents or (iii) paid out of substantially the same source of funds as, or deemed to have substantially the same claim to be paid out of substantially the same source of funds as, the Financing Documents. 2.3. Except as permitted under the Code and excluding the Refinancing Principal Amount held under the Escrow Agreement, Lessee does not and will not have on hand any funds that are or will be restricted, segregated, legally required or otherwise intended to be used, directly or indirectly, as a substitute, replacement or separate source of financing for the Equipment. 2.4. Except as pemutted under the Code, no portion of the Principal Amount is being used by Lessee to acquire investments which produce a yield materially higher than the yield realized by Lessor from Rental Payments received under the Financing Documents. 2.5. The Principal Amount does not exceed the amount necessary for the governmental purpose for which the Financing Documents were entered into. Such funds are expected to be needed and fully expended for payment of the costs of refinancing and acquiring, equipping and installing the Equipment. OI/31/2008:F1rBq-nesc.DOC/rev.0104st1 15 2.6. Lessee does not expect to convey, sublease or otherwise dispose of the Equipment, in whole or in part, at a date which is earlier than the final Payment Date under the Financing Documents. 2.7 The Financing Documents provide that the monies deposited in escrow under the Escrow Agreement shall be invested until payments to the lessor of the Refinanced Equipment can be made. Lessee will ensure that such investment will not result in Lessee's obligations under the Financing Documents being treated as an "arbitrage bond" within the meaning of Section 148(a) of the Code.. Any monies which are earned from the investment of these funds shall be disbursed as set forth in the Escrow Agreement. Section 3 Disbursement of Funds; Reimbursement to Lessee. 3.1 It is contemplated that the entire Principal Amount will be used to refinance the Refinanced Equipment and to pay the acquisition cost of the New Money Equipment to the vendors or manufacturers thereof, provided that, if applicable, a portion of the principal amount may be paid to Lessee as reimbursement for acquisition cost payments already made by it so long as the conditions set forth in Section 3.2 below are satisfied. 3.2. Lessee shall not request that it be reimbursed for New Money Equipment acquisition cost payments already made by it unless each of the following conditions have been satisfied: (a) Lessee adopted a resolution or otherwise declared its official intent in accordance with Treasury Regulation § 1.150-2 (the "Declaration of Official Intent"), wherein Lessee expressed its intent to be reimbursed from the proceeds of a borrowing for all or a portion of the cost of the New Money Equipment, which expenditure was paid to the Vendor not earlier than sixty (60) days before Lessee adopted the Declaration of Official Intent; (b) The reimbursement being requested will be made by a written allocation before the later of eighteen (18) months after the expenditure was paid or eighteen (18) months after the items of New Money Equipment to which such payment relates were placed in service; (c) The entire payment with respect to which reimbursement is being sought is a capital expenditure, being a cost of a type properly chargeable to a capital account under general federal income tax principles; and (d) Lessee will not use any reimbursement payment in a manner which could be construed as an artifice or device under Treasury Regulation § 1.148-10 to avoid, in whole or in part, arbitrage yield restrictions or arbitrage rebate requirements. Section 4. Use and Investment of Funds; Temuorary Period. 4.1. Lessee has incurred or will incur, within six months from the date of issuance of the Financing Documents, binding obligations to pay an amount equal to at least five percent (5%) of the New Money Principal Amount toward the costs of the New Money Equipment. An obligation is not binding if it is subject to contingencies within Lessee's control. The ordering and acceptance of the items of Equipment will proceed with due diligence to the date of final acceptance of the Equipment. 4.2. An amount equal to at least eighty-five percent (85%) of the New Money Principal Amount will be expended to pay the cost of the New Money Equipment by the end of the three-year period commencing on the date of this Certificate. No portion of the New Money Principal Amount will be used to acquire investments that do not carry out the governmental purpose of the Financing Documents and that have a substantially guaranteed yield of four (4) years or more. 4.3. Lessee covenants and agrees that it will rebate an amount equal to excess earnings on the Principal Amount to the Internal Revenue Service if required by, and in accordance with, Section 148(f) of the Code, and make the annual determinations and maintain the records required by and otherwise comply with the regulations applicable thereto. Section 5. No Private Use; No Consumer Loan. 5.1. Lessee will not exceed the private use restrictions set forth in Section 141 of the Code. Specifically, Lessee will not pemut more than ten (10%) of the Principal Amount to be used for a Private Business Use (as defined herein) if, in addition, the payment of more than ten percent (10%) of the Principal Amount plus interest earned thereon is, directly or indirectly, secured by (i) any interest in property used or to be used for a Private Business Use or (ii) any interest in payments in respect of such property or derived from any payment in respect of property or borrowed money used or to be used for a Private Business Use. In addition, if both (A) more than five percent (5%) of the Principal Amount is used as described above with respect to Private Business Use and (B) more than five percent (5%) of the Principal Amount plus interest earned thereon is secured by Private Business Use property or payments as described above, then the excess over such five percent (5%) (the "Excess Private Use Portion") will be used for a Private Business Use related to the governmental use of the Equipment. Any such Excess Private Use Portion of the Principal Amount will not exceed the portion of the Principal Amount used for the governmental use of the particular project to which such Excess Private Use Portion is related. For purposes of this paragraph 5.1, "Private Business Use" means use of bond proceeds or bond financed-property directly or indirectly in a trade or business carried on by a natural person or in any activity carried on by a person other than a natural person, excluding, however, use by a state or local governmental unit and excluding use as a member of the general public. 16 O I /3 I /2008: FL-Bq-nest. DOClrev.0104sti 5.2. No part of the Principal Amount or interest earned thereon will be used, directly or indirectly, to make or fmance any loans to non- governmental entities or to any governmental agencies other than Lessee. Section 6. No Federal Guarantee. 6.1. Payment of the principal or interest due under the Financing Documents is not directly or indirectly guaranteed, in whole or in part, by the United States or an agency or instrumentality thereof. 6.2. No portion of the Principal Amount or interest earned thereon shall be (i) used in making loans the payment of principal or interest of which are to be guaranteed, in whole or in part, by the United States or any agency or instrumentality thereof, or (ii) invested, directly or indirectly, in federally insured deposits or accounts if such investment would cause the fmancing under the Financing Documents to be "federally guaranteed" within the meaning of Section 149(b) of the Code. Section 7. Miscellaneous. 7.1. Lessee shall keep a complete and accurate record of all owners or assignees of the Financing Documents in form and substance satisfactory to comply with the registration requirements of Section 149(a) of the Code unless Lessor or its assignee agrees to act as Lessee's agent for such purpose. 7.2. Lessee shall maintain complete and accurate records establishing the expenditure of the Principal Amount and interest earnings thereon for a period of five years after payment in full under the Financing Documents. 7.3. To the best of the undersigned's knowledge, information and belief, the above expectations are reasonable and there are no other facts, estimates or circumstances that would materially change the expectations expressed herein. IN WITNESS WHEREOF, this Tax Agreement and Arbitrage Certificate has been executed on behalf of Lessee as of [DATE]. CITY OF MIAMI BEACH, FLORIDA, Lessee By: Name: Patricia D. Walker Title: Chief Financial Officer 17 O1 /31 /2008: FI~Bq-nesc.DOC/rev.0104stl EXHIBIT B-2 Lease Number: [O1 ] Equipment Schedule: O1 TAX AGREEMENT AND ARBITRAGE CERTIFICATE This TAX AGREEMENT AND ARBITRAGE CERTIFICATE (this "Certificate") is issued by CITY OF MIAMI BEACH, FLORIDA ("Lessee") in favor of SUNTRUST EQUIPMENT FINANCE & LEASING CORP. ("Lessor") in connection with that certain Master Lease Agreement dated as of [DATE] (the "Agreement"), by and between Lessor and Lessee. The terms capitalized herein but not defined herein shall have the meanings assigned to them in the Agreement. Section 1. In General. 1.1 This Certificate is executed for the purpose of establishing the reasonable expectations of Lessee as to future events regarding the financing of certain equipment (the "Equipment") to be acquired by Lessor and leased to Lessee pursuant to and in accordance with the Equipment Schedule referenced above (the "Equipment Schedule") executed under the Agreement (together with all related documents executed pursuant thereto and contemporaneously herewith, the "Financing Documents"). As described in the Financing Documents, Lessor shall apply [FUNDING AMOUNT] (the "Principal Amount") toward the acquisition of the Equipment and Lessee shall make Rental Payments under the terms and conditions as set forth in the Financing Documents. 1.2. The individual executing this Certificate on behalf of Lessee is an officer of Lessee delegated with the responsibility of reviewing and executing the Financing Documents, pursuant to the resolution or other official action of Lessee adopted with respect to the Financing Documents, a copy of which has been delivered to Lessor. 1.3. The Financing Documents are being entered into for the purpose of providing funds for financing the cost of acquiring, equipping and installing the Equipment which is essential to the governmental functions of Lessee, which Equipment is described in the Equipment Schedule. The Principal Amount will be disbursed by Lessor on or promptly after the date of issuance of the Financing Documents to acquire the Equipment, or said he Principal Amount will be deposited in escrow by Lessor on the date of issuance of the Financing Documents and held by SUNTRUST BANK, as escrow agent (the "Escrow Agent") pending the payment of the Principal Amount to the vendor or manufacturer or provider of Equipment under the terms of that certain Escrow Agreement dated as of [DATE], (the "Escrow Agreement"), by and among Lessor, Lessee, and Escrow Agent. 1.4. Lessee will timely file for each payment schedule issued under the Lease a Form 8038-G (or, if the invoice price of the Equipment under such schedule is less than $100,000, a Form 8038-GC) relating to such Lease with the Internal Revenue Service in accordance with Section 149(e) of the Internal Revenue Code of 1986, as amended (the "Code"). Section 2. Non-Arbitrage Certifications. 2.1. The Rental Payments due under the Financing Documents will be made with monies retained in Lessee's general operating fund (or an account or subaccount therein). No sinking, debt service, reserve or similar fund or account will be created or maintained for the payment of the Rental Payments due under the Financing Documents or pledged as security therefor. 2.2. There have been and will be issued no obligations by or on behalf of Lessee that would be deemed to be (i) issued or sold within fifteen (15) days before or after the date of issuance of the Financing Documents, (ii) issued or sold pursuant to a common plan of financing with the Financing Documents or (iii) paid out of substantially the same source of funds as, or deemed to have substantially the same claim to be paid out of substantially the same source of funds as, the Financing Documents. 2.3. Except as pemutted under the Code and excluding the Principal Amount held under the Escrow Agreement, Lessee does not and will not have on hand any funds that are or will be restricted, segregated, legally required or otherwise intended to be used, directly or indirectly, as a substitute, replacement or separate source of financing for the Equipment. 2.4. Except as permitted under the Code, no portion of the Principal Amount is being used by Lessee to acquire investments which produce a yield materially higher than the yield realized by Lessor from Rental Payments received under the Financing Documents. 2.5. The Principal Amount does not exceed the amount necessary for the governmental purpose for which the Financing Documents were entered into. Such funds are expected to be needed and fully expended for payment of the costs of acquiring, equipping and installing the Equipment. 2.6. Lessee does not expect to convey, sublease or otherwise dispose of the Equipment, in whole or in part, at a date which is earlier than the final Payment Date under the Financing Documents. 2.7 The Financing Documents provide that the monies deposited in escrow under the Escrow Agreement shall be invested until payments to the vendor or manufacturer or provider of the Equipment can be made. Lessee will ensure that such investment will not result in 18 01 /~ 112008: FL-Bq-nest. DOC/rev.0104stl Lessee's obligations under the Financing Documents being treated as an "arbitrage bond" within the meaning of Section 148(a) of the Code. Any monies which are earned from the investment of these funds shall be disbursed as set forth in the Escrow Agreement. Section 3. Disbursement of Funds• Reimbursement to Lessee. 3.1 It is contemplated that the entire Principal Amount will be used to pay the acquisition cost of the Equipment to the vendors or manufacturers thereof, provided that, if applicable, a portion of the principal amount may be paid to Lessee as reimbursement for acquisition cost payments akeady made by it so long as the conditions set forth in Section 3.2 below are satisfied. 3.2 Lessee shall not request that it be reimbursed for Equipment acquisition cost payments already made by it unless each of the following conditions have been satisfied: (a) Lessee adopted a resolution or otherwise declared its official intent in accordance with Treasury Regulation § 1.150-2 (the "Declaration of Official Intent"), wherein Lessee expressed its intent to be reimbursed from the proceeds of a borrowing for all or a portion of the cost of the Equipment, which expenditure was paid to the Vendor not earlier than sixty (60) days before Lessee adopted the Declaration of Official Intent; (b) The reimbursement being requested will be made by a written allocation before the later of eighteen (18) months after the expenditure was paid or eighteen (18) months after the items of Equipment to which such payment relates were placed in service; (c) The entire payment with respect to which reimbursement is being sought is a capital expenditure, being a cost of a type properly chargeable to a capital account under general federal income tax principles; and (d) Lessee will not use any reimbursement payment in a manner which could be construed as an artifice or device under Treasury Regulation § 1.148-10 to avoid, in whole or in part, arbitrage yield restrictions or arbitrage rebate requirements. Section 4 Use and Investment of Funds; Temporary Period. 4.1. Lessee has incurred or will incur, within six months from the date of issuance of the Financing Documents, binding obligations to pay an amount equal to at least five percent (5%) of the Principal Amount toward the costs of the Equipment. An obligation is not binding if it is subject to contingencies within Lessee's control. The ordering and acceptance of the items of Equipment will proceed with due diligence to the date of fmal acceptance of the Equipment. 4.2. An amount equal to at least eighty-five percent (85%) of the Principal Amount will be expended to pay the cost of the Equipment by the end of the three-year period commencing on the date of this Certificate. No portion of the Principal Amount will be used to acquire investments that do not carry out the governmental purpose of the Financing Documents and that have a substantially guaranteed yield of four (4) years or more. 4.3. Lessee covenants and agrees that it will rebate an amount equal to excess earnings on the Principal Amount to the Internal Revenue Service if required by, and in accordance with, Section 148(f) of the Code, and make the annual determinations and maintain the records required by and otherwise comply with the regulations applicable thereto. Section 5 No Private Use; No Consumer Loan. 5.1. Lessee will not exceed the private use restrictions set forth in Section 141 of the Code. Specifically, Lessee will not permit more than ten (10%) of the Principal Amount to be used for a Private Business Use (as defined herein) if, in addition, the payment of more than ten percent (10%) of the Principal Amount plus interest earned thereon is, directly or indirectly, secured by (i) any interest in property used or to be used for a Private Business Use or (ii) any interest in payments in respect of such properly or derived from any payment in respect of property or borrowed money used or to be used for a Private Business Use. In addition, if both (A) more than five percent (5%) of the Principal Amount is used as described above with respect to Private Business Use and (B) more than five percent (5%) of the Principal Amount plus interest earned thereon is secured by Private Business Use property or payments as described above, then the excess over such five percent (5%) (the "Excess Private Use Portion") will be used for a Private Business Use related to the governmental use of the Equipment. Any such Excess Private Use Portion of the Principal Amount will not exceed the portion of the Principal Amount used for the governmental use of the particular project to which such Excess Private Use Portion is related. For purposes of this paragraph 5.1, "Private Business Use" means use of bond proceeds or bond financed-property directly or indirectly in a trade or business carried on by a natural person or in any activity carried on by a person other than a natural person, excluding, however, use by a state or local governmental unit and excluding use as a member of the general public. 5.2. No part of the Principal Amount or interest earned thereon will be used, directly or indirectly, to make or finance any loans to non- governmental entities or to any governmental agencies other than Lessee. Section 6. No Federal Guarantee. 6.1. Payment of the principal or interest due under the Financing Documents is not directly or indirectly guaranteed, in whole or in part, by the United States or an agency or instrumentality thereof. 6.2. No portion of the Principal Amount or interest earned thereon shall be (i) used in making loans the payment of principal or interest of 19 01 /31 /2008: FL-Bq-nesc.DOC/rev.0104sd which are to be guaranteed, in whole or in part, by the United States or any agency or instrumentality thereof, or (ii) invested, directly or indirectly, in federally insured deposits or accounts if such investment would cause the fmancing under the Financing Documents to be "federally guaranteed" within the meaning of Section 149(b) of the Code. Section 7. Miscellaneous. 7.1. Lessee shall keep a complete and accurate record of all owners or assignees of the Financing Documents in form and substance satisfactory to comply with the registration requirements of Section 149(a) of the Code unless Lessor or its assignee agrees to act as Lessee's agent for such purpose. 7.2. Lessee shall maintain complete and accurate records establishing the expenditure of the Principal Amount and interest earnings thereon for a period of five years after payment in full under the Financing Documents. 7.3. To the best of the undersigned's knowledge, information and belief, the above expectations are reasonable and there are no other facts, estimates or circumstances that would materially change the expectations expressed herein. IN WITNESS WHEREOF, this Tax Agreement and Arbitrage Certificate has been executed on behalf of Lessee as of [DATE]. CITY OF MIAMI BEACH, FLORIDA, Lessee By: Name: Patricia D. Walker Title: Chief Financial Officer 20 Ol /31 /2008: FL-Bq-nesc.DOC/rev.0104st1 EXHIBIT C [Non-Escrow] Lease Number: [01 ] Equipment Schedule: 01 RESOLUTION OF GOVERNING BODY The undersigned further certifies that the Resolution attached hereto is a true, exact, complete and correct copy of the original Resolution passed by the governing body of the Lessee, and that said Resolution has not been repealed or amended and remains in full force and effect and further certifies that the Lease executed on behalf of Lessee is the same as presented at such meeting of the governing body of Lessee, excepting only such changes, insertions and omissions as shall have been approved by the officers who executed the same. Date: , CITY OF MIAMI BEACH, FLORIDA, Lessee Attested By: Name: Title: Ol/3 V2008:FL-Bq-nesc.DOC/rev.0104sd 2 1 EXHIBIT D Lease No.: [O1] Equipment Schedule: O1 INCUMBENCY CERTIFICATE I do hereby certify that I am the duly elected or appointed and acting City Clerk of CITY OF MIAMI BEACH, FLORIDA, a political subdivision duly organized and existing under the laws of the State of Florida, that I have custody of the records of such entity, and that, as of the date hereof, the individuals named below are the duly elected or appointed officers of such entity holding the offices set forth opposite their respective names. I fiuther certify that (i) the signatures set opposite their respective names and titles are their true and authentic signatures and (ii) such officers have the authority on behalf of such entity to enter into that certain Master Lease Agreement dated as of [DATE] between such entity and SUNTRUST EQUIPMENT FINANCE & LEASING CORP.. NAME TITLE Matti Herera Bower Mayor Patricia D. Walker Chief Financial Officer SIGNATURE IN WITNESS WHEREOF, I have duly executed this certificate as of this day of , By: Name: Robert Parcher Title: City Clerk 22 O I /3 I /2008: FL-Bq-nesc. DOC/rev.0104st1 EXHIBIT E-1 [LETTERHEAD OF LESSEE'S COUNSEL] [DATE OF LEASE] SUNTRUST EQUIPMENT FINANCE & LEASING CORP. 300 East Joppa Road, 7th Floor Towson, MD 21286 Re: Master Lease Agreement dated as of [DATE] (the "Agreement") by and between SUNTRUST EQUIPMENT FINANCE & LEASING CORP. ("Lessor") and CITY OF MIAMI BEACH, FLORIDA ("Lessee") Ladies and Gentlemen: We have acted as counsel to Lessee with respect to the Agreement described above and various related matters, and in this capacity have reviewed a duplicate original or certified copy thereof and Equipment Schedule No. O1 executed pursuant thereto (together with the Agreement, the "Lease"). The terms capitalized in this opinion but not defined herein shall have the meanings assigned to them in the Lease. Based upon the examination of these and such other documents as we have deemed relevant, it is our opinion that: 1. Lessee is a political subdivision of the State of Florida (the "State") within the meaning of Section 103(c) of the Internal Revenue Code of 1986, as amended, and is duly organized, existing and operating under the Constitution and laws of the State. 2. Lessee is authorized and has the power under applicable law to enter into the Lease, and to carry out its obligations thereunder and the transactions contemplated thereby. 3. The Lease has been duly authorized, executed and delivered by and on behalf of Lessee, and is a legal, valid and binding obligation of Lessee enforceable in accordance with its terms, subject to the annual appropriation by Lessee of legally available non ad valorem funds for each fiscal year to make payments required under the Lease in each such fiscal year, except as enforcement thereof may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. 4. The execution of the Lease and the appropriation of moneys to pay the Rental Payments coming due thereunder do not and will not result in the violation of any constitutional or statutory provision relating to the manner, form or amount of indebtedness which maybe incurred by Lessee. 5. Resolution No. of the governing body of Lessee was duly and validly adopted by such governing body on This opinion may be relied upon by the addressee hereof and its successors and assignees of interests in the Lease, but only with regard to matters specifically set forth herein. Very truly yours, (type name and title under signature) 23 O I /3 I /2008: FLrBq-nest. DOC/rev.0104st1 EXHIBIT E-2 [LETTERHEAD OF LESSEE'S COUNSEL] [DATE OF LEASE] SUNTRUST EQUIPMENT FINANCE & LEASING CORP. 300 East Joppa Road, 7th Floor Towson, MD 21286 Re: Master Lease Agreement dated as of [DATE] (the "Agreement") by and between SUNTRUST EQUIPMENT FINANCE & LEASING CORP. ("Lessor") and CITY OF MIAMI BEACH, FLORIDA ("Lessee") Ladies and Gentlemen: We have acted as counsel to Lessee with respect to the Agreement described above and various related matters, and in this capacity have reviewed a duplicate original or certified copy thereof and Equipment Schedule No. O1 executed pursuant thereto (together with the Agreement, the "Lease"). The terms capitalized in this opinion but not defined herein shall have the meanings assigned to them in the Lease. Based upon the examination of these and such other documents as we have deemed relevant, it is our opinion that: 1. The authorization and execution of the Lease and all other proceedings of Lessee relating to the transactions contemplated thereby have been performed in accordance with all applicable open meeting, public records, public bidding and all other laws, rules and regulations of the State. 2. The execution of the Lease and the appropriation of moneys to pay the Rental Payments coming due thereunder do not and will not result in the violation of any constitutional, statutory or other limitation relating to the manner, form or amount of indebtedness which maybe incurred by Lessee. 3. There is no litigation, action, suit or proceeding pending or before any court, administrative agency, arbitrator or governmental body that challenges the organization or existence of Lessee, the authority of Lessee or its officers or its employees to enter into the Lease, the proper authorization and/or execution of the Lease or the documents contemplated thereby, the appropriation of moneys to make Rental Payments under the Lease for the current Fiscal Year of Lessee, or the ability of Lessee otherwise to perform its obligations under the Lease and the transactions contemplated thereby. To the best of our knowledge, no such litigation, action, suit or proceeding is threatened. The Equipment is personal property, and when used by Lessee will not be or become fixtures under the laws of the State. 5. Resolution No. of the governing body of Lessee was duly and validly adopted by such governing body on ,and such resolution has not been amended, modified, supplemented or repealed and remains in full force and effect. This opinion may be relied upon by the addressee hereof and its successors and assignees of interests in the Lease, but only with regard to matters specifically set forth herein. Very truly yours, (type name and title under signature) 24 0I /31 @008: FI~Bq-nesc.DOC/rev.0104stl FORM OF OPINION: FOR SCHEDULES ADOPTED PURSUANT TO THE AUTHORIZING MASTER RESOLUTION No. ,dated EXHIBIT E-3 [LETTERHEAD OF LESSEE'S COUNSEL] [DATE OF LEASE] SUNTRUST EQUIPMENT FINANCE & LEASING CORP. 300 East Joppa Road, 7th Floor Towson, MD 21286 Re: Master Lease Agreement dated as of [DATE] (the "Agreement") by and between SUNTRUST EQUIPMENT FINANCE & LEASING CORP. ("Lessor") and CITY OF MIAMI BEACH, FLORIDA ("Lessee") Ladies and Gentlemen: We have acted as counsel to Lessee with respect to the Agreement described above and various related matters, and in this capacity have reviewed a duplicate original or certified copy thereof and Equipment Schedule No. O1 executed pursuant thereto (together with the Agreement, the "Lease"). The temps capitalized in this opinion but not deemed herein shall have the meanings assigned to them in the Lease. Based upon the examination of these and such other documents as we have deemed relevant, it is our opinion that: 1. Lessee is a political subdivision of the State of Florida (the "State") within the meaning of Section 103(c) of the Internal Revenue Code of 1986, as amended, and is duly organized, existing and operating under the Constitution and laws of the State. 2. Lessee is authorized and has the power under applicable law to enter into the Lease, and to carry out its obligations thereunder and the transactions contemplated thereby. 3. The Lease has been duly authorized, executed and delivered by and on behalf of Lessee, and is a legal, valid and binding obligation of Lessee enforceable in accordance with its terms, subject to the annual appropriation by Lessee of legally available non ad valorem funds for each fiscal year to make payments required under the Lease in each such fiscal year, except as enforcement thereof may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. 4. The authorization and execution of the Lease and all other proceedings of Lessee relating to the transactions contemplated thereby have been performed in accordance with all applicable open meeting, public records, public bidding and all other laws, rules and regulations of the State. 5. The execution of the Lease and the appropriation of moneys to pay the Rental Payments coming due thereunder do not and will not result in the violation of any constitutional, statutory or other limitation relating to the manner, form or amount of indebtedness which maybe incurred by Lessee. 6. There is no litigation, action, suit or proceeding pending or before any court, administrative agency, arbitrator or governmental body that challenges the organization or existence of Lessee, the authority of Lessee or its officers or its employees to enter into the Lease, the proper authorization and/or execution of the Lease or the documents contemplated thereby, the appropriation of moneys to make Rental Payments under the Lease for the current Fiscal Year of Lessee, or the ability of Lessee otherwise to perform its obligations under the Lease and the transactions contemplated thereby. To the best of our knowledge, no such litigation, action, suit or proceeding is threatened. The Equipment is personal property, and when used by Lessee will not be or become fixtures under the laws of the State. 8. Resolution No. of the governing body of Lessee was duly and validly adopted by such governing body on ,and such resolution has not been amended, modified, supplemented or repealed and remains in full force and effect. This opinion may be relied upon by the addressee hereof and its successors and assignees of interests in the Lease, but only with regard to matters specifically set forth herein. Very truly yours, 25 O l /31 /2008: FL-Bq-nest. DOC/rev.0104sd EXHIBIT F Lease No.: Shown on Schedule I Equipment Schedule: Shown on Schedule I SUNTRUST LEASING CORPORATION ESCROW AGREEMENT This ESCROW AGREEMENT, made and entered into as of the Date shown on Schedule I, by and among SUNTRUST LEASING CORPORATION, a Virginia corporation ("Lessor"), the Lessee named on Schedule I, which is a political subdivision or public body politic and corporate of the State or Commonwealth shown on Schedule I ("Lessee"), and SUNTRUST BANK, a Georgia banking corporation, as Escrow Agent ("Escrow Agent"). In consideration of the mutual covenants herein contained, the parties hereto agree as follows: ARTICLE I. DEFINITIONS AND RECITALS Section 1.1. Definitions. The terms defined in this Section 1.1 shall, for all purposes of this Escrow Agreement, have the meanings specified below or on Schedule I. "Acquisition Costs" means, with respect to the Equipment, the contract price paid or the Refinancing Principal Amount as defined in any related Tax Agreement and Arbitrage Certificate, to be paid to the person entitled to such payment upon acquisition or delivery of any portion of the Equipment in accordance with the purchase order or contract therefor. Acquisition Costs may include the administrative, engineering, legal, financial and other costs incurred by Lessee in connection with the acquisition, delivery and financing of the Equipment, if approved by Lessor. "Equipment" means the personal property described in the Acceptance Certificate executed pursuant to the Lease, together with any and all modifications, additions and alterations thereto, to be acquired from the moneys held in the Equipment Acquisition Fund. "Equipment Acquisition Fund" means the account by that name established and held by Escrow Agent pursuant to Article II of this Escrow Agreement. "Escrow Agent Fee" has the meaning set forth in Section 6.1 and the amount of such Escrow Agent Fee is shown on Schedule I. "Escrow Agreement" means this Escrow Agreement and any duly authorized and executed amendment or supplement hereto. "Initial Deposit Amount" means the amount shown as the Initial Deposit Amount on Schedule I. "Lease" means the Master Lease, together with the Equipment Schedule identified on Schedule I, by and between Lessee and Lessor, and any duly authorized and executed amendment or supplement thereto. "Master Lease" means the Master Lease Agreement, dated as of the date shown on Schedule I, by and between Lessee and Lessor, including any Equipment Schedules entered into thereunder and any duly authorized and executed amendment or supplement thereto. "Payment Request Form" means the document substantially in the form attached hereto as Exhibit A to be executed by Lessee and Lessor and submitted to Escrow Agent to authorize payment of Acquisition Costs. "Qualified Investments" means the ST Leasing -Corp Agency NOW Account, a SunTrust Deposit Account for Escrow customers of SunTrust Equipment Finance & Leasing Corp. and SunTrust Bank. By signing this Escrow Agreement, Lessee acknowledges that such Qualified Investment is a permitted investment under any state, county or municipal law applicable to the investment of Lessee's funds. 26 01!3112008: FL-Bq-nest. DOC/rev.0104st1 ARTICLE II. APPOINTMENT OF ESCROW AGENT; AUTHORITY Section 2 1 Appointment of Escrow Agent. Lessor and Lessee hereby appoint and employ Escrow Agent to receive, hold, invest and disburse the moneys to be paid to Escrow Agent pursuant to this Escrow Agreement and to perform certain other functions, all as hereinafter provided. By executing and delivering this Escrow Agreement, Escrow Agent accepts the duties and obligations of Escrow Agent hereunder. Escrow Agent undertakes to perform only such duties as are expressly set forth herein, and no additional duties or obligations shall be implied hereunder. In performing its duties under this Escrow Agreement, or upon the claimed failure to perform any of its duties hereunder, Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of Escrow Agent so acting or failing to so act; provided, however, Escrow Agent shall not be relieved from liability for damages arising out of its proven gross negligence or willful misconduct under this Escrow Agreement. Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to any party hereto, given with respect to any question relating to the duties and responsibilities of Escrow Agent hereunder or (ii) any action taken or omitted to be taken in reliance upon any instrument delivered to Escrow Agent and believed by it to be genuine and to have been signed or presented by the proper party or parties. Escrow Agent shall not be bound in any way by any agreement or contract between Lessor and Lessee, including the Master Lease, whether or not Escrow Agent has knowledge of any such agreement or contract. Section 2.2. Authority. Each of the parties has authority to enter into this Escrow Agreement, and has taken all actions necessary to authorize the execution of this Escrow Agreement by the representatives whose signatures are affixed hereto. ARTICLE III. EQUIPMENT ACQUISITION FUND Section 3 1 Equipment Acquisition Fund. Escrow Agent shall establish a special escrow account designated as the "Equipment Acquisition Fund" (the "Equipment Acquisition Fund"), shall keep such Equipment Acquisition Fund separate and apart from all other funds and moneys held by it and shall administer such Equipment Acquisition Fund as provided in this Escrow Agreement. Section 3.2. Deposit. Upon execution of the Lease and delivery to Lessor by Lessee of all documents required to be delivered thereunder, Lessor shall deposit or cause to be deposited with Escrow Agent an amount equal to the Initial Deposit Amount. Escrow Agent shall credit such amount to the Equipment Acquisition Fund. The Initial Deposit Amount is to be sent by Lessor to Escrow Agent by wire transfer to: SunTrust Bank ATL ABA 061000104 A/C 9088000265 Corporate Agency Services- Orlando Beneficiary as shown on Schedule I Attn: Gloria Reyes or Kevin Witherell Section 3.3. Disbursements. Escrow Agent shall use the moneys in the Equipment Acquisition Fund from time to time to pay the Acquisition Cost of each item of Equipment, within a reasonable time of receipt with respect thereto of a Payment Request Form executed by Lessor and Lessee. Upon receipt of a Payment Request Form executed by Lessor and Lessee, an amount equal to the Acquisition Cost as shown therein shall be paid directly by Escrow Agent to the person or entity entitled to payment as specified therein. Although the Payment Request Form may have schedules, invoices and other supporting document attached to it, Lessor will send to Escrow Agent only the page or pages showing the signatures of Lessor and Lessee, the Acquisition Cost and related payment information, without such schedules, invoices or other supporting documentation. Escrow Agent may act and rely upon the signed Payment Request Form without the need to review or verify any such schedules, invoices or other supporting documentation. Section 3.4. Transfers Upon Completion. Unless all of the funds deposited by Lessor in the Equipment Acquisition Fund have been previously disbursed pursuant to Section 3.3 or paid to Lessor pursuant to Section 3.5, on the Ending Date shown on Schedule I, Escrow Agent shall pay upon written direction all remaining moneys in the Equipment Acquisition Fund to Lessor or its assignee for application as a prepayment of the unpaid Principal under the related Lease. Any amounts paid pursuant to this Section 3.4 shall be subject to a prepayment fee equal to two percent (2%) of such amount. Lessor shall apply amounts received under this Section 3.4 first to unpaid fees, 27 O l /3 I /2008: FL-Bq-nest. DOC/rev.0104st1 late charges and collection costs, if any, which have accrued or been incurred under the Master Lease, then to overdue Principal and Interest on the Lease and then, in the sole discretion of Lessor, either (i) to Principal payments thereafter due under the Lease in the inverse order of their maturities or (ii) proportionately to each Principal payment thereafter due under the Lease. In the event that Lessor elects to apply any such amounts in accordance with clause (i) of the preceding sentence, Lessee shall continue to make Rental Payments as scheduled in the applicable Payment Schedule. In the event that Lessor elects to apply such amounts in accordance with clause (ii) of this Section 3.4, Lessor shall provide Lessee with a revised Payment Schedule which shall reflect the revised Principal balance and reduced Rental Payments due under the Lease. Capitalized terms used in this Section 3.4, but not defined herein, shall have the meanings given to such terms in the Lease. Escrow Agent shall have no responsibility to see to the appropriate application of any moneys returned under this Section 3.4. With regards to Schedules O1, 02, and 03 to Master Lease Number referenced on Schedule I attached hereto, no prepayment fee, as described in this Section 3.4 shall be due payable. This shall not apply to a Prepayment Fee as defined in any related Payment Schedule hereto. Section 3.5. Liquidation. Upon receipt of written notice from Lessor or Lessee that the Lease has been terminated pursuant to Sections 3.2 or 12.2 thereof, Escrow Agent shall liquidate all investments held in the Equipment Acquisition Fund and transfer the proceeds thereof and all other moneys held in the Equipment Acquisition Fund to Lessor. Section 3.6. Responsible Party. The Lessee shall be responsible for the initiation of the disbursement process pursuant to Section 3.3 hereof. Neither Escrow Agent nor Lessor shall be responsible for any additional monies assessed to Lessee resulting from disbursements made from the Equipment Acquisition Fund. ARTICLE IV. TRUST; INVESTMENT Section 4.1. Irrevocable Trust. The moneys and investments held by Escrow Agent under this Escrow Agreement are irrevocably held in trust for the benefit of Lessor and Lessee, and such moneys, together with any income or interest earned, shall be expended only as provided in this Escrow Agreement, and shall not be subject to levy or attachment or lien by or for the benefit of any creditor of either Lessor or Lessee (other than Lessor's security interest granted hereunder). Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Equipment Acquisition Fund or any part of the Equipment Acquisition Fund or to file any fmancing statement under the Uniform Commercial Code of any jurisdiction with respect to the Equipment Acquisition Fund or any part thereof. Section 4.2. Investment. Moneys held by Escrow Agent hereunder shall be invested and reinvested by Escrow Agent only in Qualified Investments. Such investments shall be registered in the name of Escrow Agent and held by Escrow Agent for the benefit of Lessor and Lessee. Escrow Agent may purchase or sell to itself or any affiliate, as principal or agent, investments authorized by this Article IV. Such investments and re-investments shall be made giving full consideration for the time at which funds are required to be available. Any income received on such investments shall be credited to the Equipment Acquisition Fund and any loss on such investments shall be chaxged to the Equipment Acquisition Fund. Escrow Agent shall not be responsible or liable for any loss suffered in connection with any investment of moneys made by it in accordance with this Article N. Section 4.3. Disposition of Investments. Escrow Agent shall, without further direction from Lessor or Lessee, sell such investments as and when required to make any payment from the Equipment Acquisition Fund. Section 4.4. AccountinE. Escrow Agent shall keep complete and accurate records of all moneys received and disbursed under this Escrow Agreement which shall be available for inspection by Lessor or Lessee, or the agent of either of them, at any time during regular business hours upon prior written request. Escrow Agent shall furnish to Lessor and Lessee no less than quarterly an accounting of all investments and interest and income therefrom. Section 4.5. Termination. This Escrow Agreement shall terminate upon disbursement by Escrow Agent of all moneys held by it hereunder. Notwithstanding the foregoing, this Escrow Agreement shall not be considered to be terminated until all fees, costs and expenses of Escrow Agent have been paid in full. Upon termination, Escrow Agent shall be discharged from all duties and responsibilities under this Escrow Agreement. 28 0 113 1 /200 8: FL-Bq-nest. DOC/rev.0104stl ARTICLE V. ESCROW AGENT'S AUTHORITY; INDEMNIFICATION Section 5.1. Validity. Escrow Agent may act upon any writing or instrument or signature which it believes to be genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to give any writing, notice, advice or instructions in connection with the provisions hereof has been duly authorized to do so, and Escrow Agent shall be under no duty to make any investigation or inquiry as to any of the foregoing. Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner and execution, or validity of any instrument deposited with it, nor as to the identity, authority or right of any person executing the same. Escrow Agent shall be entitled to rely upon any statement, certificate, document or instrument presented to it by or on behalf of Lessee by any of the Lessee's Authorized Representatives shown on Schedule I and shall be entitled to rely upon any such statement, certificate, document or instrument presented to it by any other person who identifies himself or herself as an authorized representative of Lessee. Section 5 2 Use of Counsel and Agents. Escrow Agent may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, or receivers. Escrow Agent shall be entitled to advice of counsel concerning all matters of trust and its duties hereunder and shall be paid or reimbursed the reasonable fees and expenses of such counsel, as provided in Section 6.1. Escrow Agent shall not be answerable for the default or misconduct of any such attorney, agent, or receiver selected by it with reasonable care. Section 5.3. Interpretation. As an additional consideration for and as an inducement for Escrow Agent to act hereunder, it is understood and agreed that, in the event of any disagreement between the parties to this Escrow Agreement or among them or any other persons resulting in adverse claims and demands being made in connection with or for any money or other property involved in or affected by this Escrow Agreement, Escrow Agent shall be entitled, at the option of Escrow Agent, to refuse to comply with the demands of such parties, or any of such parties, so long as such disagreement shall continue. In such event, Escrow Agent shall make no delivery or other disposition of the Equipment Acquisition Fund or any part of the Equipment Acquisition Fund. Anything herein to .the contrary notwithstanding, Escrow Agent shall not be or become liable to such parties or any of them for the failure of Escrow Agent to comply with the conflicting or adverse demands of such parties or any of such parties. Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the Equipment Acquisition Fund or any part thereof or to otherwise act hereunder, as stated above, unless and until: 1. the rights of such parties have been finally settled by binding arbitration or duly adjudicated in a court having jurisdiction of the parties and the Equipment Acquisition Fund; or 2. the parties have reached an agreement resolving their differences and have notified Escrow Agent in writing of such agreement and have provided Escrow Agent with indemnity satisfactory to Escrow Agent against any liability, claims or damages resulting from compliance by Escrow Agent with such agreement. In the event of a disagreement between such parties as described above, Escrow Agent shall have the right, in addition to the rights described above and at the option of Escrow Agent, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Equipment Acquisition Fund and may take such other legal action as may be appropriate or necessary, in the opinion of Escrow Agent. Upon such tender, the parties hereto agree that Escrow Agent shall be discharged from all further duties and responsibilities under this Escrow Agreement; provided, however, that the filing of any such legal proceedings shall not deprive Escrow Agent of its compensation hereunder earned prior to such filing and discharge of Escrow Agent of its duties and responsibilities hereunder. The parties hereto jointly and severally agree that, whether under this Section 5.3 or any other provisions of this Escrow Agreement, in the event any controversy arises under or in connection with this Escrow Agreement or the Equipment Acquisition Fund or in the event that Escrow Agent is made a party to or intervenes in any litigation pertaining to this Escrow Agreement or the Equipment Acquisition Fund, to pay to Escrow Agent reasonable additional compensation for its extraordinary services and to reimburse Escrow Agent for all costs and expenses associated with such controversy or litigation, including reasonable attorney's fees. 29 O I /31 /2008: FL-Bq-nesc.DOC/rev.0104st1 With regards to Schedules O1, 02, and 03 of the Lease Number Shown on Schedule I, Lessor, Lessee and Escrow Agent hereby agree that the moneys in the Equipment Acquisition Account are to be used to refmance certain equipment currently leased by the Lessee, and prepay the related leases between the City and Banc of America Leasing & Capital, LLC. Section 5 4 Limited Liability of Escrow Agent. Escrow Agent shall not be liable in connection with the performance or observation of its duties or obligations hereunder except for in the case of its proven gross negligence or willful misconduct. Escrow Agent shall have no obligation or liability to any of the other parties under this Escrow Agreement for the failure or refusal of any other party to perform any covenant or agreement made by such party hereunder or under the Master Lease, but shall be responsible solely for the performance of the duties and obligations expressly imposed upon it as Escrow Agent hereunder. Section 5.5. Indemnification. Escrow Agent shall have no obligation to take any legal action in connection with this Escrow Agreement or towards its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might involve it in any cost, expense, loss or liability unless security and indemnity, as provided in this Section 5.5, shall be furnished. To the extent permitted by applicable law, Lessee agrees to indemnify Escrow Agent and it officers, directors, employees and agents and save Escrow Agent and its officers, directors, employees and agents harmless from and against any and all Claims (as hereinafter defined) and Losses (as hereinafter defined) which may be incurred by Escrow Agent or any of such officers, directors, employees or agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents as a result of or in connection with Escrow Agent's capacity as such under this Escrow Agreement by any person or entity. For the purposes hereof, the term "Claims" shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or impleader) Escrow Agent or any such officer, director, employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part: (a) the acts or omissions of Lessor or Lessee, (b) the appointment of Escrow Agent as escrow agent under this Escrow Agreement, or (c) the performance by Escrow Agent of its powers and duties under this Escrow Agreement; and the term "Losses" shall mean losses, costs, damages, expenses, judgments and liabilities of whatever nature (including but not limited to attorneys', accountants' and other professionals' fees, litigation and court costs and expenses and amounts paid in settlement), directly or indirectly resulting from, arising out of or relating to one or more Claims. Upon the written request of Escrow Agent or any such officer, director, employee or agent (each referred to hereinafter as an "Indemnified Party"), and to the extent permitted by law, Lessee agrees to assume the investigation and defense of any Claim, including the employment of counsel acceptable to the applicable Indemnified Party and the payment of all expenses related thereto and, if any assumption of defense is not reasonably acceptable to Lessor and/or Escrow Agent, then the Indemnified Party shall have the right, and Lessee agrees to pay the cost and expense thereof, to employ separate counsel with respect to any such Claim and participate in the investigation and defense thereof in the event that such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to such Indemnified Party which are different from or additional to those available to either Lessor or Lessee. Lessee hereby agrees that the indemnifications and protections afforded Escrow Agent in this Section 5.5 shall survive the termination of this Escrow Agreement. ARTICLE VI. COMPENSATION Section 6.1. Escrow Agent Fee. Escrow Agent and/or Lessor shall be paid by Lessee the Escrow Agency Fees shown on Schedule I for the ordinary services to be rendered hereunder (the "Escrow Agency Fees") from interest earnings from a deduction taken by Lessor and expressly authorized by Lessee at the time the Escrow Account is closed, and will be paid and/or reimbursed by Lessee upon request for all costs, expenses, disbursements and advances, such as reasonable attorney's fees and court costs, incurred or made by Escrow Agent in connection with carrying out its duties hereunder, including the costs, expenses, disbursements and advances described in Sections 5.2, 5.3 and 6.2. The Escrow Agent Fee and such other costs, expenses, disbursements and advances shall be payable solely from the interest earnings from the Equipment Acquisition Fund. In the event a shortfall occurs, said shortfall shall be the responsibility of Lessee and not the responsibility of Escrow Agent, Lessor, or their agents or assigns. Such shortfall shall be paid by Lessee to Escrow Agent within 30 days following receipt by Lessee of a written statement setting forth such shortfall. Section 6.2. Investment Fees. Escrow Agent shall be entitled to charge reasonable fees and commissions in connection with the investment by it of amounts held in the Equipment Acquisition Fund (the "Investment Fees"). Investment Fees are more fully delineated and defined in any prospectus referenced in or attached to the attached Schedule I. Other Investment Fees may apply for self-directed investment choices or for extraordinary investments outside the Qualified Investment defined herein. Lessor and Lessee hereby authorize 30 O I /31 /2008: FL-Bq-nest. DOC/rev.0104st1 Escrow Agent to periodically deduct the Investment Fees from investment earnings on the Equipment Acquisition Fund. Section 6.3. Security for Fees and Expenses. Intentionally Omitted ARTICLE VII. CHANGE OF ESCROW AGENT Section 71 Removal of Escrow Agent. Lessor and Lessee, by written agreement, may by written request, at any time and for any reason, remove Escrow Agent and any successor thereto, and shall thereupon appoint a successor or successors thereto, but any such successor shall have capital (exclusive of borrowed capital) and surplus of at least Fifty Million Dollars ($50,000,000), and be subject to supervision or examination by federal or state authority. If such bank or trust company publishes a report of condition at least annually, pursuant to statute or the requirements of any federal or state supervising or exam;ning authority, then for the purposes of this Section 7.1, the combined capital and surplus of such bank or trust company may be conclusively established in its most recent report of condition so published. Section 7 2 Resignation of Escrow Agent. Escrow Agent may resign at any time from it obligations under this Escrow Agreement by providing written notice to the parties hereto. Such resignation shall be effective on the date set forth in such written notice which shall be no earlier than 30 days after such written notice has been given, unless an earlier resignation date and the appointment of a successor Escrow Agent shall have been approved by Lessor and Lessee. In the event no successor escrow agent has been appointed on or prior to the date such resignation is to become effective, Escrow Agent shall be entitled to tender into the custody of a court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Escrow Agreement. Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder. Section 7.3. Merger or Consolidation. Any entity into which Escrow Agent may be merged or converted, or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which it shall be a party, or any company to which Escrow Agent may sell or transfer all or substantially all of its corporate trust business (provided that such company shall be eligible under Section 7.1) shall be the successor to Escrow Agent without any execution or filing or further act. ARTICLE VIII. ADMINISTRATIVE PROVISIONS. Section 8.1. Notice. All written notices to be given under this Escrow Agreement shall be given by mail, by facsimile or by overnight courier to the party entitled thereto at its contact information specified on Schedule I, or at such contact information as the party may provide to the other parties hereto in writing from time to time. Any such notice shall be deemed to have been received 72 hours after deposit in the United States mail in registered or certified form, with postage fully prepaid, or if given by other means, when delivered at the address orfacsimile number specified in Schedule I. Any notice given by any party shall be given to both other parties. Section 8.2. Assignment. Except as expressly herein provided to the contrary, the rights and duties of each of the parties under this Escrow Agreement shall not be assignable to any person or entity without the written consent of all of the other parties. Notwithstanding the above, Lessor may freely assign all or any part of its interest in this Escrow Agreement and the Equipment Acquisition Fund in connection with an assignment by Lessor of its rights under the Lease. Section 8.3. Binding Effect. This Escrow Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Section 8.4. Severability. In the event any provision of this Escrow Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 8.5. Entire Agreement; Amendments. This Escrow Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous writings, understandings, agreements, solicitation documents and representations, express or implied. By execution of this Escrow Agreement, Escrow Agent shall not be deemed or considered to be a party to any other document, including the Master Lease. This Escrow Agreement may be amended, supplemented or modified only by written documents duly authorized, executed and delivered by each of the parties hereto. 31 O 1 /3 1120 0 8: FL-Bq-nest. DOC/rev.0104st1 Section 8.6. Cautions. The captions or headings in this Escrow Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions, Articles, Sections or clauses hereof. Section 8.7. Further Assurances and Corrective Instruments. Lessor and Lessee agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may be necessary or proper to carry out the intention or to facilitate the performance of the parties under this Escrow Agreement, and for better assuring and confirming the rights and benefits provided herein. . Section 8.8. Governing Law. This Escrow Agreement shall be constnzed and governed in accordance with the laws of the State of Florida, except with regard to matters which pertain to fiduciary duties, standards, or conduct of the Escrow Agent, which shall be governed by the laws of the Commonwealth of Virginia. Section 8.9. Execution in Counterparts. This Escrow Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same Escrow Agreement. Section 8.10. Waiver of Jury Trial. Lessor, Lessee and Escrow Agent hereby waive any right to trial by jury in any action or proceeding with respect to, in connection with or arising out of this Escrow Agreement. Section 8.11. No Tax Reporting. Escrow Agent will not be responsible for tax reporting of any income on the Equipment Acquisition Fund. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 32 01/31!2008: FGBq-nesc.DOC/rev.0104st1 EXECUTION PAGE OF ESCROW AGREEMENT IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the Date of Escrow Agreement shown on Schedule I. SUNTRUST BANK Escrow Agent SUNTRUST LEASING CORPORATION, Lessor By BY Name: Name: Donald S. Keough Title: Title: Vice President CITY OF MIAMI BEACH, FLORIDA Lessee By Name: Patricia D. Walker [SEAL] Title: Chief Financial Officer Schedule I Information to Complete Escrow Agreement Exhibit A Payment Request Form 33 Ol/3I/2008:FL-Bq-nesc.DOC/rev.0104sd SCHEDULEI INFORMATION TO COMPLETE ESCROW AGREEMENT Lease Number: O1 Equipment Schedule: 001 Date of Escrow Agreement: date Name of Lessee: lessee Lessee's State /Commonwealth: state Escrow Agency Fees: 250.00 (Waived for Escrow Accounts for Schedules O1, 02, & 03 for this Lease Number) Investment Fees, if any, are more fully defined on the attached prospectus or summary sheet, if any. Obviously, some investment vehicles produce a yield for the financial institution in excess of the published yield to the depositor. Initial Deposit Amount: Date of Master Lease Agreement: Beneficiary Name for Fund: Ending Date: Lessee's Address: Attention: Lessee's Telephone: Lessee's Facsimile: Lessee's Taxpayer Identification Number: Lessee's Authorized Representatives Escrow Agent's Address: Escrow Agent's Telephone: Escrow Agent's Facsimile: Lessor's Address: Lessor's Telephone: Lessor's Facsimile: Lessor's Taxpayer Identification Number: [funding amountl date [lessee] [EpUIPMENT DATEI address Llessee namel (lessee phone no.l f lessee fax no.l [name/title] [name/title] SunTrust Bank, Corporate Trust Division 225 East Robinson Street Ste 250, Orlando, FL 32801 Attention: Gloria Reyes or Kevin Witherell (407) 237-4240 (407)237-5299 SunTrust Equipment Finance & Leasing Corp. 300 E. Joppa Road, 7th Floor Towson, Maryland 21286 Attention: Escrow Disbursement Coordinator (410)307-6749 (410)307-6665 [signature] [signature] 34 O I /31/2008: FL-Bq-nesc.DOC/rev.0104stl Fact Sheet: SunTrust Bank Escrow Deposit Account for SunTrust Equipment Finance & Leasing Corp. Customers The SunTrust Bank Escrow deposit account was established exclusively for municipal and not- for-profit clients of SunTrust Leasing. It allows the client's escrow funds to earn a competitive rate of interest, indexed to the Federal Reserve fund ("fed funds") rate. Features include: ^ Interest earned on 100% of the collected balances (with no deduction for reserves). ^ Interest is paid/credited monthly. ^ Unlimited access for escrow activity. ^ No transaction fees. ^ No minimum balance requirement. ^ No monthly maintenance fee. ^ FDIC Insured Current Rate: Interest Rate Date Member FDIC ©2006 SunTrust Banks, Inc. SunTrust is a federally registered service mark of SunTrust Banks, Inc. 35 01 /31 @008: FL-Bq-nest. DOC/rev.0104stl EXHIBIT Gl Lease No.: [O1 ] Equipment Schedule: O1 DATE: TO: Insurance Agent Name & Address Phone Number and Fax Number Gentlemen: CITY OF MIAMI BEACH, FLORIDA has entered into a Master Lease Agreement dated as of [DATE] with SUNTRUST EQUIPMENT FINANCE & LEASING CORP.. In accordance with the Agreement, Lessee certifies that it has instructed the insurance agent named above to issue: a. All Risk Physical Damage Insurance on the leased Equipment evidenced by a Certificate of Insurance and Long Form Loss Payable Clause naming SUNTRUST EQUIPMENT FINANCE & LEASING CORP. and/or its assigns as Loss Payee. The Coverage Required is [FUNDING AMOUNT]. b. Public Liability Insurance evidenced by a Certificate of Insurance naming SUNTRUST EQUIPMENT FINANCE & LEASING CORP. and/or its assigns as Additional Insured. The following minimum coverage is required: Liability: $ 500,000.00 per person Liability -Bodily Injury: $1,000,000.00 aggregate Liability -Property Damage: $1,000,000.00 property damage liability PROPERTY: LOCATION: Upon issuance of the coverage outlined above, please mail a certificate of insurance to SUNTRUST EQUIPMENT FINANCE & LEASING CORP., 300 East Joppa Road, 7`h Floor, Towson, MD 21286. Your courtesy in issuing and forwarding the requested certificate at your earliest convenience will be appreciated. Very truly yours, CITY OF MIAMI BEACH, FLORIDA By: Name: Patricia D. Walker Title: Chief Financial Officer Date: 36 O 1 /3 11200 8: FL-Bq-nest. DOC/rev.0104st1 EXHIBIT G2 Lease Number: [O1 ] Equipment Schedule: O1 QUESTIONNAIRE FOR SELF-INSURANCE TO MASTER LEASE AGREEMENT In connection with the Master Lease Agreement (the "Agreement"), dated as of [DATE], made and entered into by and between SUNTRUST EQUIPMENT FINANCE & LEASING CORP., as Lessor (the "Lessor"), and the lessee identified below, as Lessee (the "Lessee"), Lessee warrants and represents to Lessor the following information. The terms capitalized herein but not defined herein shall have the meanings assigned to them in the Agreement. 1. Property Insurance. a. Lessee is self-insured for damage or destruction to the Equipment. YES NO (circle one) If yes, the dollar amount limit for property damage to the Equipment under the Lessee's self-insurance program is $ b. The Lessee maintains an umbrella insurance policy for claims in excess of Lessee's self-insurance limits for properly damage to the Equipment as indicated above. YES NO (circle one) If yes, the umbrella policy provides coverage for all risk property damage. YES NO (circle one) If yes, the dollar limit for property damage to the Equipment under such umbrella policy is $ 2. Liability Insurance. a. Lessee is self-insured for liability for injury or death of any person or damage or loss of property arising out of or relating to the condition or operation. of the Equipment. YES NO (circle one) If yes, the dollar limit for such liability claims under the Lessee's self-insurance program is $ b. The Lessee maintains an umbrella insurance policy for claims in excess of Lessee's self-insurance limits for liability including injury or death of persons or damage to property as indicated above. YES NO (circle one) If yes, the umbrella policy provides coverage for liabilities for injury and death to persons as well as damage or loss of property arising out of or relating to the condition or operation of the Equipment. YES NO (circle one) If yes, the dollar amount of the umbrella policy's limits for such liability coverage is $ 3A. Sel~Insurance Fund. a. Lessee maintains aself-insurance fund. YES NO (circle one) If yes, please complete the following: Monies in the self-insurance fund are subject to annual appropriation. YES NO (circle one) The total amount maintained in the self-insurance fund to cover Lessee's self-insurance liabilities is $ b. Amounts paid from the Lessee's self-insurance fund are subject to limitations for each claim YES NO (circle one) If yes, the dollar amount of limit per claim is $ 37 OI/31/2008:FL-Bq-nesc.DOC/rev.0104stl 3B. No Self Insurance Fund. a. If Lessee does not maintain aself-insurance fund, please complete the following: Lessee obtains funds to pay claims for which it has self-insured from the following sources: b. The limitations on the amounts payable for claims from the above sources are as follows: 4. Authority. a. The following entity or officer has authority to authorize payment for claim: b. In the event the entity or officer named in the prior response denies payment of a claim, does the claimant have recourse to another administrative officer, agency or the courts? YES NO (circle one) If yes, to whom does the claimant have recourse? 5. Certificates of Insurance. Attached hereto are copies of certificates of insurance with respect to policies maintained by Lessee. IN WITNESS WHEREOF, Lessee has caused this Questionnaire to be executed as a supplement to the representations of Lessee in the Agreement by its duly authorized officer. CITY OF MIAMI BEACH, FLORIDA, Lessee By: Name: Patricia D. Wallcer Title: Chief Financial Officer Date: Telephone: 305/673-7466 Facsimile: 305/673-7795 Attachment O I/31 /2008: FL-Bq-nest. DOC/rev.0104st1 3 8 Title: Chief Financial Officer Date: Title: Vice President Date: 01/31/2008: FL.-Bq-nesc.DOC/rev.0104st1 4 Q