HomeMy WebLinkAbout09-035
RESOLUTION NO. 09-035
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF ST.
LUGE COUNTY, FLORIDA, AUlHORIZING THE LEASE PURCHASE OF
CERTAIN COMPUTER EQUIPMENT AND SOFTWARE FOR USE BY THE
COUNTY; APPROVING THE FORM OF AND AUTHORIZING THE
EXECUTION AND DELIVERY OF THE MASTER EQUIPMENT
LEASE/PURCHASE AGREEMENT, THE ACQUISITION FUND AGREEMENT;
AND THE MICROSOFT ENTERPRISE AGREEMENT; AUTHORIZING
FURTHER OFFICIAL ACTION IN CONNECfION THEREWITH; AND
PROVIDING AN EFFECTIVE DAn.
WHEREAS, the Board of County Corrunissioners (the "Board") of St. Lucie County, Florida
(the "Lessee" or "County"), desires to obtain certain computer equipment and software in an
amount not to exceed $1,070,000 (the "Equipment") for use by the COlUlty, as described in the
Master Equipment Lease/Purchase Agreement by and between the County and Banc of America
Public Capital Corp (the "Lessor") (the "Lease Agreement"), the form of which is attached hereto
as Exhibit A; and
WHEREAS, the Equipment is essential for the Lessee to perform its governmental
functions; and
WHEREAS, the funds made available under the Lease Agreement will be deposited with
Deutsche Bank National Trust Company (the "Acquisition Fund Custodian") pursuant to an
Acquisition Fund and Account Control Agreement among the County, the Lessor and the
Acquisition Fund Custodian (the II Acquisition Fund Agreement"), the form of which is attached
hereto as Exhibit B, and will be applied to the acquisition of the Equipment in accordance with the
terms and provisions of the Acquisition Fund Agreement; and
WHEREAS, in connection with the procurement of the Equipment, the County desires to
enter into the Microsoft Enterprise Enrollment - State and Local Amendment between the County
and Microsoft Licensing, GP ("Microsoft Licensing") under and pursuant to the Microsoft
Enterprise Agreement Number 01E61767 between the State of Florida and MSLI, GP (collectively,
the "Microsoft Enterprise Agreement") to obtain the requisite licensing rights for the Equipment at
a discounted rate, in an aggregate amount not to exceed $1,125,000; and
WHEREAS, payment for amounts due under the Lease Agreement and the Microsoft
Enterprise Agreement will be secured by legally available non-ad valorem revenues of the County
budgeted and appropriated on an annual basis; and
WHEREAS, the County has taken the necessary steps, including those relating to any
applicable legal bidding requirements, to arrange for the acquisition of the Equipment; and
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WHEREAS, it is necessary and desirable for the County to enter into the Lease Agreement
with the Lessor, the Acquisition Fund Agreement with the Lessor and the Acquisition Fund
Custodian and the Microsoft Enterprise Agreement with Microsoft Licensing; now therefore:
BE IT RESOL \lED BY THE BOARD OF COUNTY COMMISSIONERS OF ST. LUCIE
COUNTY, FLORIDA:
SECTION 1. AUTHORITY FOR TIllS RESOLUTION. This resolution is adopted
pursuant to the provisions of Chapter 125, Part I, Florida Statutes, Ordinance No. 87-77 of the
Board of County Commissioners (the ''Board'') of St. Lucie County, Florida (the "County"), as
amended, and other applicable provisions of law.
SECTION 2. DEFINITIONS. The following terms shall have the following meanings
when used in this resolution unless the context clearly requires otherwise. Words importing
singular numbers shall include the plural number in each case and vice versa, and words
importing persons shall include firms and corporations.
"Acquisition Fund Agreement" means the Acquisition Fund and Account Control
Agreement among the County, the Lessor and the Acquisition Fund Custodian, a copy of which
is attached hereto as Exhibit B.
"Acquisition Fund Custodian" means Deutsche Bank National Trust Company.
"Act" means Chapter 125, Part I, Florida Statutes, Ordinance No. 87~77 of the Board of
the County, as amended, and other applicable provisions of law.
"Board" means the Board of County Commissioners, as the governing body of the
County.
"Bond Counsel" means Bryant Miller Olive, P .A., Orlando, Florida.
"Chair" means the Chair of the Board, or in the Chair's absence, the Vice Chairman.
"Clerk" means the Clerk of the Circuit Court of the County or, in the Clerk's absence, any
Deputy Clerk.
"Code" means the Internal Revenue Code of 1986, as amended.
"County" means St. Lucie County, Florida, a political subdivision of the State of Florida.
"County Administrator" means the County Administrator of the County, as the chief
administrative officer or the County Administrator's designee.
"Director" means the Director of the Office of Management and Budget of the County.
"Financial Advisor" means Public Financial Management, Inc., Orlando, Florida.
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"Lease Agreement" means the Lease Agreement between the County and the Lessor, a
copy of which is attached hereto as Exhibit A.
"Lessee" means the County.
"Lessor" means Banc of America Public Capital Corp.
"Microsoft Enterprise Agreement" means the Microsoft Enterprise Enrollment - State and
Local Amendment to be entered into by and between the County and Microsoft Licensing under
and pursuant to the Microsoft Enterprise Agreement Number 01E61767 between the State of
Florida and MSLI, GP.
"Microsoft Licensing" means Microsoft Licensing, GP.
"Proposal" means the Proposal dated January 9, 2009 submitted by Banc of America
Public Capital Corp for the lease purchase of the Equipment financing, a copy of which is
attached hereto as Exhibit C.
SECTION 3. FINDINGS. It is hereby found, declared, and determined by the Board.
1. The WHEREAS clauses recited above are hereby incorporated herein as a part of
this resolution.
2. The Board deems it necessary and desirable and in the best interests of the health,
safety and welfare of the residents of the County to lease purchase the Equipment.
3. The County is authorized pursuant to the provisions of the Act to lease purchase
the Equipment.
4. The County is without adequate, currently available cash to pay the full price of
the Equipment and it is necessary and desirable and in the best interests of the County and its
residents that the County accepts the Lessor's Proposal to lease purchase the Equipment.
5. The County has solicited proposals from lending institutions for financing the
lease purchase of the Equipment, the results of which have been tabulated by the Financial
Advisor. Pursuant to the Financial Advisor's advice, the Director determined that the Lessor's
Proposal (a copy of which is attached hereto as Exhibit C) contained terms most favorable to the
County.
6. It is necessary and desirable and in the best interests of the County and its
residents that the County enters into the Microsoft Enterprise Agreement to obtain the requisite
licensing rights for the Equipment at the discounted rates provided therein.
SECTION 4. APPROV At OF PROPOSAL. The County hereby accepts the Lessor's
Proposal. The County Attorney and Bond Counsel are hereby authorized and directed to
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proceed to prepare the necessary documents to consummate the transaction contemplated
hereby and thereby.
SECTION 5. APPROVAL OF FINANCING. The lease purchase of the Equipment
pursuant to the Lease Agreement, the Acquisition Fund Agreement and the Microsoft Enterprise
Agreement (collectively, the "Financing Documents"), in substantially the fonns attached hereto as
Exhibit A, Exhibit B and Exhibit D, respectively, and made a part of this resolution, is hereby
approved.
SECTION 6. AUTHORIZATION AND APPROVAL OF LEASE AGREEMENT AND
ACOUISmON FUND AGREEMENT. To provide for the lease purchase financing of the
Equipment and the proper tenns thereof the execution and delivery of (a) the Lease Agreement
between the County and the Lessor and (b) the Acquisition Fund Agreement among the County,
the Lessor and the Acquisition Fund Custodian is hereby authorized. The form of the Lease
Agreement attached hereto as Exhibit A is hereby approved, subject to such changes, insertions
and omissions and such filling of blanks therein as may be made in such form of Lease Agreement
and approved by the Lessor and either of the officers of the County executing the same, such
execution and delivery to be conclusive evidence of such approval. The Chair or Vice Chairman of
the County and the Clerk of the County or their duly authorized alternate officers are hereby
authorized and empowered to execute and deliver the Lease Agreement in substantially the form
attached hereto, subject to such changes, insertions and omissions and filling of blanks therein as
authorized hereby. The form of the Acquisition Fund Agreement attached hereto as Exhibit B is
hereby approved, subject to such changes, insertions and omissions and such filling of blanks
therein as may be made in such form of Acquisition Fund Agreement and approved by the Lessor,
the Acquisition Fund Custodian and either of the officers of the County executing the same, such
execution and delivery to be conclusive evidence of such approval. The Chair or Vice Chairman of
the County and the Clerk of the County or their dilly authorized alternate officers are hereby
authorized and. empowered to execute and deliver the Acquisition Fund Agreement in
substantially the form attached hereto, subject to such changes, insertions and omissions and filling
of blanks therein as authorized.
SECTION 7. AUTHORIZATION AND APPROVAL OF MICROSOFT ENTERPRISE
AGREEMENT. To provide for the purchase of the requisite licensing rights for the Equipment
authorized to be purchase hereunder and the proper terms thereof the execution and delivery of
the Microsoft Enterprise Lease Agreement by and between the COWlty and Microsoft Leasing is
hereby authorized. The form of the Microsoft Enterprise Agreement attached hereto as Exhibit 0
is hereby approved, subject to such changes, insertions and omissions and such filling of blanks
therein as may be made in such form of Microsoft Enterprise Agreement and approved by
Microsoft Leasing and either of the officers of the County executing the same, such execution and
delivery to be conclusive evidence of such approval. The Chair or Vice Chairman of the County
and theOerk of the County or their duly authorized alternate officers are hereby authorized and
empowered to execute and deliver the Microsoft Enterprise Agreement in substantially the form
attached hereto, subject to such changes, insertions and omissions and filling of blanks therein as
authorized hereby.
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SECTION 8. TAX COMPLIANCE. The County covenants. throughout the term of the
Lease Agreement, to comply with the requirements of the Code. The County will take all actions
necessary to maintain the exclusion from gross income for purposes of the Code of the interest
component of the payments under the Lease Agreement to the same extent as on the date of the
Lease Agreement.
SECTION 9. AUTHORIZATION OF OTHER ACTION. The Chair, the Clerk, the
County Administrator, and the Director are each hereby designated agents of the County in
connection with the execution and delivery of the Fipafi~1;Owi)9cuments and the lease purchase
of the Equipment and are hereby authorized anfl'~.Iipow.e~e.d~' t~lie~vely or ind.ividually, to
take all action and steps to execute and deliver ~y:a~i~fallinsfu.imei1ts, tlocuments or contracts
on behalf of the County which are necessary ot 'd~~ple:,;in CpnrieC;nonwith the execution and
delivery of the Financing Documents and the lea$e:.pu'tc~as~of tHe El}uipment, including, but
not limited to, the making of modifications.~t9~~!i.~\F.in~~ihg :~ents to conform the
provisions thereof to the provisions hereof and d\t1\e:~<;>pp~{d~: .:;~: .....
!,~,,'''''{_-'~'.~\~;,~ .-f.~}t~,.':.~ ,....,-~~ o. t '.~: ,~'
SECTION 10. REPEAL OF INCONSISTE~FR~'riSloN'S. All resolutions or parts
thereof in conflict with this resolution are hereby repealed t~"'fhe'~~tent of such conflict.
SECTION 11. SEVERABILITY. If anyone or more of the covenants, agreements, or
provisions of this resolution should 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, or provisions shall be null
and void and shall be deemed separate from the remaining covenants, agreements or provisions,
and in no way affect the validity of all other provisions of this resolution or of the Financing
Documents delivered hereunder.
SECTION 12. AMENDMENT. This resolution may not be amended or repealed except
with the prior written consent of Lessor.
[Remainder of page intentionally left blank]
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SECTION 13. EFFECTIVE DATE. This resolution shall take effect immediately upon its
adoption.
held.
Passed and adopted this 27th day of January, 2009 at a regular meeting duly called and
(SEAL)
A TrEST:
{25048/006/00293799.DOCv4]
ST. LUOE COUNTY, FLORIDA
By' UJ b cL'_A"-
Paula A. Lewis, 01' ~~
Board of County Commissioners
APPROVED AS 10 FORM AND
CO CTNESS:
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EXHIBIT A
FORM OF MASTER EQUIPMENT LEASEIPURCHASE AGREEMENT
A-I
EXHIBIT B
ACQUISITION FUND AND ACCOUNT CONTROL AGREEMENT
B-1
EXHIBIT C
LESSOR'S PROPOSAL
C-l
EXHIBIT D
MICROSOFT ENTERPRISE AGREEMENT
D-1
F&L Draft of 1/16/2009
Master Equipment LeaselPurchase Agreement
by and between
BANC OF AMERICA PUBLIC CAPITAL CORP
("Lessor")
and
ST. LUCIE COUNTY, FLORIDA
("Lessee")
Dated as of: January _, 2009
JACK_1477474.1
EXHIBIT
1 (:J~
s
T ABLE OF CONTENTS
Page
ARTICLE I............................................................................................................................. .............. 1
Section 1.01. Definitions.... ............ ............ ......... ................................. ............ ...... ....... .........1
AR TI CLE II. ..................................................................................................................................... ...4
Section 2.01. Representations and Covenants of Lessee. ......................................................4
Section 2.02. Representations and Covenants of Lessor. ...................................................... 7
AR TI CLE II I. ................................................................................................................................. ......7
Section 3.01. Lease of Equipment. ......................................................................................... 7
Section 3.02. Continuation of the Lease Term. ......................................................................7
Section 3.03. Nonappropriation. ............................................................................................7
Section 3.04. Substitution. ......................................................................................................8
Section 3.05. Conditions to Lessor's Performance Under Any Lease. ..................................8
ARTICLE IV........................... ..................... ......... ......... .................................... ...... ...... ...... ................ 9
Section 4.01. Rental Payments. .............................................................................................. 9
Section 4.02. Interest and Principal Components.................................................................. 9
Section 4.03. Rental Payments to Constitute a Current Expense of Lessee......................... 10
Section 4.04. Rental Payments to be Unconditional. ...........................................................10
Section 4.05. Tax Covenants. ...............................................................................................10
Section 4.06. Event of Taxability. ........................................................................................11
Section 4.07. Mandatory Prepayment. .................................................................................11
ARTICLE V. ......................................................................................................................................11
Section 5.01. Delivery, Installation and Acceptance of Equipment. .................................... 11
Section 5.02. Enjoyment of Equipment. ............................................................................... 11
Section 5.03. Location and Inspection of the Equipment. ....................................................12
Section 5.04. Use and Maintenance of the Equipment......................................................... 12
ARTICLE VI. .....................................................................................................................................13
Section 6.01. Title to the Equipment. ................................................................................... 13
Section 6.02. Personal Property. .........................................................................................13
ARTICLE VII. ...................................................................................................................................13
Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
JACK_1477474.1
Liens, Taxes, Other Governmental Charges and Utility Charges. ................13
Insurance. ................... ................... ...... ...... ...... ...... ........... ............... ...............14
Risk of Loss. ....................................................................................................14
Advances. ............ .................. .................. ...... ..................... ....................... ...... 14
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ARTICLE VIII. ..................................................................................................................................15
Section 8.01. Damage, Destruction and Condemnation. .....................................................15
Section 8.02. Insufficiency of Net Proceeds. ........................................................................15
ARTICLE IX. ..... ............................ ............ ............ ........ ................ ....... ...... ....... ...... ...... ...... ...... ........16
Section 9.01. Disclaimer of Warranties. ..............................................................................16
Section 9.02. Vendor's Warranties. .....................................................................................16
ARTICLE X. ... ...... ...... ...... ...... ............ ............ ......... ... ... ............ ...... ...... ...... ...... ...... ...... ...... ...... ........16
Section 10.01. Purchase Option.............................................................................................16
ARTICLE XI. .................... ...... ............ ............ ...... .................... ....... ...... ...... ...... ...... ...... ...... ...... ...... ..17
Section 11.01. Assignment by Lessor. ....................................................................................17
Section 11.02. Assignment and Subleasing by Lessee. ..........................................................17
ARTICLE XII. ...................................................................................................................................17
Section 12.01. Events of Default Defined. .............................................................................17
Section 12.02. Remedies on Default. ......................................................................................18
Section 12.03. No Remedy Exclusive. ....................................................................................19
Section 12.04. Application of Moneys. ...................................................................................19
ARTICLE XIII. .. .......................................... ......... ......... ............................. ....... ...... ........ ..................20
Section 13.01. No Fees Paid by Lessor.................................................................................. 20
Section 13. 02. Notices. ...........................................................................................................20
Section 13.03. Binding Effect. ................................................................................................20
Section 13.04. Severability. ....................................................................................................20
Section 13.05. Amendments, Changes and Modifications. ....................................................20
Section 13.06. Execution in Counterparts. ............................................................................20
Section 13.07. Applicable Law. .............................................................................................. 20
Section 13.08. Captions. ........................................................................................................20
EXHIBITS
Exhibit A --
Exhibit B --
Exhibit C --
Exhi bit 0 --
Exhibit E --
Form of Schedule of Property and Rental Payment Schedule
Form of Acceptance Certificate
Form of Clerk Certificate
Form of Opinion of Counsel to Lessee
Form of Notice and Acknowledgement of Assignment
JACK_1477474.1
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Master Equipment LeaselPurchase Agreement
This Master Equipment Lease/Purchase Agreement (this "Agreement") dated as of
January --' 2009, and entered into between BANC OF AMERICA PUBLIC CAPITAL CORP, a
Kansas Corporation ("Lessor"), and the ST. LUCIE COUNTY, a political subdivision existing
under the laws of the State of Florida ("Lessee").
WITNESSETH:
WHEREAS, Lessee desires to lease and acquire from Lessor certain equipment described in
each Schedule (as each such term is defined herein), subject to the terms and conditions of and for
the purposes set forth in each Lease; and in the event of a conflict with the terms of this Agreement
the terms of a Schedule prevail; and
WHEREAS, the relationship between the parties shall be a continuing one and items of
equipment may be added to the Equipment from time to time by execution of additional Schedules
by the parties hereto and as otherwise provided herein; and
WHEREAS, Lessee is authorized under the constitution and laws of the State to enter into
this Agreement and the Schedules hereto for the purposes set forth herein;
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the premises hereinafter contained, the parties hereby agree
as follows:
ARTICLE I.
Section 1.01. Definitions. The following terms will have the meanings indicated below
unless the context clearly requires otherwise:
"Acquisition Amount" means the amount specified in each Lease and represented by Lessee
to be sufficient to acquire the Equipment listed in such Lease.
"Acquisition Fund" means, with respect to any Lease, the fund established and held by the
Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement, if any.
"Acquisition Fund Agreement" means, with respect to any Lease, an Acquisition Fund
Agreement in form and substance acceptable to and executed by Lessee, Lessor and the Acquisition
Fund Custodian, pursuant to which an Acquisition Fund is established and administered.
"Acquisition Fund Custodian" means the acquisition fund custodian or depository bank of
Lessee identified in any Acquisition Fund Agreement, and its successors and assigns.
"Acquisition Period' means, with respect to each Lease, that period stated in the Schedule to
such Lease, during which the Lease Proceeds attributable to such Lease may be expended on
Equipment Costs.
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"Act" means, collectively, Chapter 125, Florida Statutes, the Constitution of the State, and
other applicable provisions oflaw.
"Agreement" means this Master Equipment Lease/Purchase Agreement, including the
exhibits hereto, together with any amendments and modifications to the Agreement pursuant to
Section 13.05.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a Section
of the Code herein shall be deemed to include the United States Treasury Regulations proposed or
in effect thereunder.
"Commencement Date" means, for each Lease, the date when Lessee's obligation to pay
Rental Payments commences under such Lease, which date shall be the earlier of (i) the date on
which the Equipment listed in such Lease is accepted by Lessee in the manner described in Section
5.01, or (ii) the date on which sufficient moneys to purchase the Equipment listed in such Lease are
deposited for that purpose with an Acquisition Fund Custodian.
"Contract Rate" means the rate identified as such in the applicable Schedule.
"Equipment" means the property listed in each of the Leases and all replacements, repairs,
restorations, modifications and improvements thereof or thereto made pursuant to Section 8.01 or
Article V. Whenever reference is made in this Agreement to Equipment listed in a Lease, such
reference shall be deemed to include all such replacements, repairs, restorations, modifications and
improvements of or to such Equipment.
"Equipment Costs" means, to the extent permitted by the Act, the total cost of the
Equipment listed in each Lease, including soft costs such as freight, installation and taxes paid up
front by Lessor and all capitalizable consulting and training fees approved by Lessor, legal fees,
financing costs, motor vehicle registration fees, recording and filing fees, and other costs necessary
to vest full, clear legal title to the Equipment in Lessee and to place the same in operation, and
otherwise incurred in connection with the financing provided by the lease-purchase of the
Equipment as provided in each Lease; provided that (i) any such soft costs on a cumulative basis
shall not exceed a percentage of the Maximum Equipment Cost approved by Lessor, and (ii) in no
event shall capitalizable delivery charges, installation charges, taxes and similar capitalizable "soft
costs" relating to such Equipment exceed 20% of the total cost of such Equipment as determined by
Lessor.
"Expense Fund" means, with respect to any Lease, the fund established and held by the
Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement.
"Event of Default" means an Event of Default described in Section 12.01.
"Lease" means a Schedule and the terms of this Agreement which are incorporated by
reference into such Schedule. Each Schedule with the incorporated terms of this Agreement shall
constitute a separate and independent Lease.
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"Lease Proceeds" means, with respect to each Lease, the total amount of money to be paid
by Lessor to the Acquisition Fund Custodian for deposit and application in accordance with such
Lease and the Acquisition Fund Agreement, or if there is no Acquisition Fund Agreement, the
amounts paid to Lessee to finance Equipment Costs.
"Lease Term" for each Lease means the Original Term and all Renewal Terms therein
provided and for this Agreement means the period from the date hereof until this Agreement is
terminated.
"Lessee" means the entity referred to as Lessee in the first paragraph of this Agreement.
"Lessor" means (a) the entity referred to as Lessor in the first paragraph of this Agreement
or (b) any assignee or transferee of any right, title or interest of Lessor in and to the Equipment
under a Lease or any Lease (including Rental Payments thereunder) pursuant to Section 11.01, but
does not include any entity solely by reason of that entity retaining or assuming any obligation of
Lessor to perform under a Lease.
"Material Adverse Change" means (a) prior to the Utilization Period Expiration, a
downgrade in Lessee's external debt rating for general obligation indebtedness of the Lessee of two
or more sub grades by either Moody's Investors Service, Inc. or Standard & Poor's Ratings Group or
any equivalent successor credit rating agency, or any downgrade by either such agency that would
cause Lessee's credit rating to be below investment grade, and (b) thereafter, any change in
Lessee's creditworthiness that could have a material adverse effect on (i) the financial condition or
operations of Lessee, or (ii) Lessee's ability to perform its obligations under this Agreement or any
Lease.
"Maximum Equipment Cost" means the cumulative amount specified in the latest Schedule
executed under this Agreement.
"Original Term" means the period from the Commencement Date for each Lease until the
end of the fiscal year of Lessee in effect at such Commencement Date.
"Purchase Price" means, with respect to the Equipment listed on a Lease, the amount that
Lessee may pay to Lessor to purchase such Equipment as provided in such Lease.
"Renewal Terms" means the renewal terms of each Lease, each having a duration of one
year and a term coextensive with Lessee's fiscal year, as specified in the Schedule applicable
thereto.
"Rental Payments" means the basic rental payments payable by Lessee under each Lease
pursuant to Section 4.01, in each case consisting of a principal component and an interest
component.
"Schedule" means each separately numbered Schedule of Property substantially in the form
of Exhibit A hereto together with a Rental Payment Schedule attached thereto substantially in the
form of Exhibit A-I hereto.
"State" means the State of Florida.
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JACK_14774741
"Utilization Period Expiration" means the date with respect to each Lease not funded under
an Acquisition Fund Agreement, by which Lessee must deliver an Acceptance Certificate for the
Equipment under such Lease as indicated in Section 5.01(a).
"Vendor" means the manufacturer or supplier of the Equipment or any other person as well
as the agents or dealers of the manufacturer or supplier from whom Lessor arranged the acquisition
and financing of the Equipment pursuant to the applicable Lease.
ARTICLE II.
Section 2.01. Representations and Covenants of Lessee. This Section 2.01 sets forth facts
and estimates upon which Lessor and its counsel may rely regarding the exclusion of the interest
portion of the Rental Payments from the gross income of Lessor, and the facts and estimates upon
which Lessee bases its reasonable expectation that the obligation to make Rental Payments pursuant
to the Leases does not create an arbitrage bond under Section 148 of the Internal Revenue Code of
1986, as amended, and applicable Treasury Regulations.
Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof and as
of the Commencement Date of each Lease as follows:
(a) Lessee is a state or a political subdivision thereof within the meaning of
Section 1 03( c) of the Code, duly organized and existing under the constitution and laws of
the State, including the Act, with full power and authority to enter into this Agreement and
each Lease and the transactions contemplated hereby, and to perform all of its obligations
hereunder and under each Lease.
(b) Lessee has duly authorized the execution and delivery of this Agreement and
each Lease by proper action of its governing body at a meeting duly called, regularly
convened and attended throughout by the requisite quorum of the members thereof, or by
other appropriate official approval, and all requirements have been met and procedures have
occurred in order to ensure the validity and enforceability of this Agreement and each Lease.
(c) No event or condition that constitutes, or with the giving of notice or the
lapse of time or both would constitute, an Event of Default exists at the date hereof. Lessee
is not in default under any indenture, mortgage, deed of trust, bank loan, credit agreement or
other instrument to which Lessee is a party.
(d) The entering into and performance of each Lease by Lessee will not violate
any judgment, order, or regulation applicable to Lessee, and except as otherwise expressly
provided in this Agreement, result in the creation of any lien, charge, security interest, or
other encumbrance upon any assets of Lessee pursuant to any indenture, mortgage, deed of
trust, bank loans, credit agreement or other instrument to which Lessee is a party or by
which it or its assets may be bound.
(e) There are no actions, suits or proceedings pending or, to the knowledge of
Lessee, threatened against or affecting Lessee in any court or before any governmental
commission, board or authority, which, if adversely determined, will have a material adverse
effect on the ability on Lessee to perform its obligations under this Agreement or any Lease.
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(t) Lessee has complied and will comply with Section 218.38, Florida Statutes, with
respect to each Lease.
(g) The interest rate for the interest portion of the Rental Payments, on the first date
interest begins to accrue, does not exceed a rate of interest permitted by Section 215.84,
Florida Statutes.
(h) Lessee will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence as a political subdivision within the meaning of Section
103(c) of the Code.
(i) Lessee has complied and will comply with such open meeting laws and
public bidding requirements as may be applicable to this Agreement and each Lease and the
acquisition by Lessee of the Equipment as provided in each Lease or, in the case of public
bidding requirements, has otherwise complied and will comply with Section 218.385(1),
Florida Statutes, in connection with each Lease.
U) During the Lease Term, the Equipment will be used by Lessee only for the
purpose of performing essential governmental or proprietary functions of Lessee permitted
under the Act. Lessee does not intend to sell or otherwise dispose of the Equipment or any
interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to
be paid under each Lease.
(k) Lessee has kept and throughout the Lease Term shall keep its books and
records in accordance with generally accepted accounting principles and practices
consistently applied, and shall deliver to Lessor (i) annual audited financial statements
(including a balance sheet, statement of revenues, expenses and changes in fund balances
for budget and actual, statement of cash flows and notes, and schedules and attachments to
the financial statements) within 270 days of its fiscal year end, (ii) such other financial
statements and information as Lessor may reasonably request, and (iv) its annual budget for
the following fiscal year when approved but not later than 30 days prior to its current fiscal
year end. Such statements in clause (i) above shall be accompanied by an unqualified
opinion of Lessee's auditor. Credit information relating to Lessee may be disseminated
among Lessor and any of its affiliates and any of their respective successors and assigns.
(I) Lessee has an immediate need for the Equipment listed on each Schedule and
expects to make immediate use of the Equipment listed on each Schedule. Lessee's need for
the Equipment is not temporary and Lessee does not expect the need for any item of the
Equipment to diminish during the Lease Term of such item. The use of the Equipment is
essential to Lessee's proper efficient and economic operation.
(m) The original proceeds of each Lease, and the interest to be earned thereon, do
not and will not exceed the amount necessary for the purpose for which such Lease is
executed.
(n) No sinking fund is expected to be created by Lessee with respect to any
Lease or the Rental Payments.
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(0) No other governmental obligations of Lessee are being issued at substantially
the same time and sold pursuant to a common plan of financing which will be paid out of (or
have substantially the same claim to be paid out of) substantially the same source of funds as
each Lease.
(p) No portion of the amounts received pursuant to each Lease will be used as a
substitute for other funds which were otherwise to be used as a source of financing for any
portion of the costs of Equipment and which have been and will be used to acquire, directly
or indirectly, obligations producing a yield in excess of the yield on each Lease.
(q) In connection with the execution and delivery of each Lease, no action has or
will be taken which attempts to circumvent the provisions of Section 148 of the Code and
the regulations promulgated thereunder by (i) enabling Lessee to exploit the difference
between tax-exempt and taxable interest rates to gain a material financial advantage and (ii)
over burdening the tax-exempt bond market.
(r) Lessee will not directly or indirectly use or permit the use of any proceeds of
a Lease, or take or omit to take any action, that would cause the Rental Payments to be
"federally guaranteed" within the meaning of Section 149(b) of the Code.
(s) Lessee will submit to the Secretary of the Treasury information reporting
statements and other information related to each Lease at the times and in the forms required
by the Code.
(t) To the best of the knowledge and belief of Lessee, the expectations of Lessee,
as set forth in this Section 2.01, are reasonable, and there are no present facts, estimates and
circumstances which would change the expectations contained therein.
(u) There is no pending litigation, tax claim, proceeding or dispute that may
materially adversely affect Lessee's financial condition or impairs its ability to perform its
obligations hereunder. Lessee will, at its expense, maintain its legal existence in good
standing and do any further act and execute, acknowledge, deliver, file, register and record
any further documents Lessor may reasonably request in order to protect Lessor's rights and
benefits under this Lease.
(v) The payment of the Rental Payments or any portion thereof is not (under the
terms of any Lease or any underlying arrangement) directly or indirectly (1) secured by any
interest in property used or to be used in any activity carried on by any person other than a
state or local governmental unit or payments in respect of such property; or (2) on a present
value basis, derived from payments (whether or not to Lessee) in respect of property, or
. borrowed money, used or to be used in any activity carried on by any person other than a
state or local governmental unit. The Equipment will not be used, directly or indirectly, in
any activity carried on by any person other than a state or local governmental unit. No
portion of the Equipment Costs for the Equipment will be used, directly or indirectly, to
make or finance loans to any person other than Lessee. Lessee has not entered into any
management or other service contract with respect to the use and operation of the
Equipment.
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(w) Lessee has reviewed and will review Internal Revenue Service Form 8038-0
to be filed in connection with the execution and delivery of each Lease, and all of the
information contained therein is, and will be, to the best of Lessee's knowledge, true and
correct, and Lessee will cause such Form 8038-0 to be filed not later than 30 days after the
execution and delivery of each Lease.
Section 2.02. Representations and Covenants of Lessor. Lessor represents, covenants and
warrants for the benefit of Lessee on the date hereof and as of the Commencement Date of each
Lease that it has and will comply with Section 218.385(2) and Section 218.385(3), Florida Statutes,
with respect to each Lease.
ARTICLE 111.
Section 3.01. Lease of Equipment. Subject to the terms of this Master Lease, Lessor agrees
to provide the funds specified as the "Acquisition Amount" in each Lease to acquire the Equipment.
Upon the execution of each Lease, Lessor demises, leases, transfers and lets to Lessee, and Lessee
acquires, rents and leases from Lessor, the Equipment as set forth in such Lease and in accordance
with the terms thereof. The latest date for any funding under this Agreement is the Funding
Expiration Date.
Section 3.02. Continuation of the Lease Term. The Lease Term for each Lease may be
continued, solely at the option of Lessee, at the end of the Original Term or any Renewal Term for
the next succeeding Renewal Term up to the maximum Lease Term set forth in such Lease. At the
end of the Original Term and at the end of each Renewal Term until the maximum Lease Term has
been completed, Lessee shall be deemed to have exercised its option to continue each Lease for the
next Renewal Term unless Lessee terminates such Lease pursuant to Section 3.03 or Section 10.01.
The terms and conditions during any Renewal Term shall be the same as the terms and conditions
during the Original Term, except that the Rental Payments shall be as provided in the applicable
Lease.
Lessee intends, subject to Section 3.03, to continue the Lease Term of each Lease through
the Original Term and all Renewal Terms and to pay the Rental Payments thereunder. Lessee
affirms that sufficient funds are available for the current fiscal year, and Lessee reasonably believes
that an amount sufficient to make all Rental Payments during the entire Lease Term of each Lease
can be obtained from legally available funds of Lessee. Subject to Section 3.03, Lessee further
intends to do all things lawfully within its power to obtain and maintain funds sufficient and
available to discharge its obligation to make Rental Payments due hereunder, including making
provision for such payments to the extent necessary in each budget or appropriation request
submitted and adopted in accordance with applicable provisions of law.
Section 3.03. Nonappropriation. Lessee is obligated only to pay such Rental Payments
under each Lease as may lawfully be made from funds budgeted and appropriated for that purpose
during Lessee's then current fiscal year. Should Lessee fail to budget, appropriate or otherwise
make available funds to pay Rental Payments under any Lease following the then current Original
Term or Renewal Term, such Lease or Leases shall be deemed terminated at the end of the then
current Original Term or Renewal Term. Lessee agrees to deliver notice to Lessor of such
termination promptly after any decision to non-appropriate is made, but failure to give such notice
shall not extend the term beyond such Original Term or Renewal Term. If any Lease is terminated
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JACK_1477474.1
in accordance with this Section, Lessee agrees to peaceably deliver the Equipment to Lessor at the
location(s) to be specified by Lessor or purchase the Equipment pursuant to Section 10.01 (a).
In the event Lessee agrees to peaceably deliver the Equipment to Lessor as set forth above,
Lessor shall use its best efforts to sell or lease such Equipment or, for the account of Lessee,
sublease such Equipment. If Lessee returns the Equipment and Lessor sells, leases or otherwise
disposes of any or all of the Equipment, Lessor shall apply the proceeds of such sale, lease or other
disposition as described in Section 12.04. Lessee shall not be liable for any deficiency after sale,
lease or other disposition of the Equipment.
Section 3.04. Substitution. Lessee reserves the right to substitute Equipment of the same
quantity and general type with the approximate equal value, utility and remaining useful life as the
Equipment so replaced. Such substitution is subject to Lessor's prior written consent, which
consent shall not be unreasonably withheld, and shall be reflected in an amendment to the
appropriate Schedule.
Section 3.05. Conditions to Lessor's Performance Under Any Lease.
(a) As a prerequisite to the performance by Lessor of any of its obligations pursuant
to any Lease, Lessee shall deliver to Lessor the following:
(i) A fully completed Schedule, executed by Lessee;
(ii) An Acquisition Fund Agreement, executed by Lessee and the
Acquisition Fund Custodian, unless Lessor pays 100% of the Acquisition Amount
directly to the Vendor (or to Lessee in reimbursement for payments to the Vendor)
upon execution of the Lease;
(iii) A Certificate executed by the Clerk or Secretary or other comparable
officer of Lessee, in substantially the form attached hereto as Exhibit C, completed to
the satisfaction of Lessor;
(iv) A certified copy of a resolution or other official action of Lessee's
governing body authorizing the execution and delivery of the Lease and performance
by Lessee of its obligations thereunder; and if a Lease provides for reimbursement of
Lessee for amounts paid to a Vendor prior to the execution and delivery of the Lease,
a certified copy of a reimbursement resolution of Lessee;
(v) An opinion of counsel to Lessee in substantially the form attached
hereto as Exhibit 0 respecting such Lease and otherwise satisfactory to Lessor;
(vi) Evidence of insurance as required by Section 7.02 hereof;
(vii) All other closing documents reasonably required by Lessor, including
certificates, notices and similar instruments, in form satisfactory to Lessor;
(viii) A copy ofa fully completed and executed Form 8038-G;
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JACK_1477474.1
(ix) If any Equipment units are motor vehicles, properly completed
certificates of title for such vehicles; and
(x) Such other items, if any, as are set forth In such Lease or are
reasonably required by Lessor.
(b) In addition, the entering into by Lessor of any Lease shall be subject to (i) no
Material Adverse Change in the financial condition of Lessee since the date of this
Agreement, (ii) no Event of Default having occurred and (iii) if no Acquisition Fund has
been established, the Equipment must be accepted by Lessee no later than the date listed as
the Utilization Period Expiration in the applicable Schedule.
(c) This Agreement is not a commitment by Lessor to enter into any Lease not
currently in existence, and nothing in this Agreement shall be construed to impose any
obligation upon Lessor to enter into any proposed Lease, it being understood that whether
Lessor enters into any proposed Lease shall be a decision solely within Lessor's discretion.
(d) Subject to satisfaction of the foregoing, Lessor will pay the Acquisition Amount
for Equipment described in a Schedule to the Vendor (or to reimburse Lessee for payments
to the Vendor), as applicable, upon receipt of the documents described in Section 5.01; or if
an Acquisition Fund has been established pursuant to an Acquisition Fund Agreement,
Lessor will deposit the Acquisition Amount for Equipment described in the Schedule with
the Acquisition Fund Custodian.
(e) Lessee will cooperate with Lessor in Lessor's review of any proposed Lease.
Without limiting the foregoing, Lessee will provide Lessor with any documentation or
information Lessor may request in connection with Lessor's review of any proposed Lease.
Such documentation may include, without limitation, documentation concerning the
Equipment and its contemplated use and location and documentation or information
concerning the financial status of Lessee and other matters related to Lessee.
ARTICLE IV.
Section 4.01. Rental Payments.
(a) Subject to Section 3.03, Lessee shall promptly pay Rental Payments, in lawful
money of the United States of America, to Lessor on the dates and in such amounts as
provided in each Lease. Lessee shall pay Lessor a charge on any Rental Payment not paid
on the date such payment is due at a rate equal to the Contract Rate plus 5% per annum or
the maximum amount permitted by law, whichever is less, from such date. Rental Payments
consist of principal and interest payments as more fully detailed on each Schedule, the
interest on which begins to accrue as ofthe Commencement Date for each such Schedule.
(b) The interest component of Rental Payments shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
Section 4.02. Interest and Principal Components. A portion of each Rental Payment is
paid as, and represents payment of, interest, and the balance of each Rental Payment is paid as, and
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JACK_1477474.1
represents payment of, principal. Each Lease shall set forth the principal and interest components
of each Rental Payment payable thereunder during the Lease Term.
Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. Lessor and
Lessee understand and intend that the obligation of Lessee to pay Rental Payments under each
Lease shall constitute a current expense of Lessee payable solely from its general fund or other
funds that are legally available for that purpose and shall not in any way be construed to be a debt of
Lessee in contravention of any applicable constitutional or statutory limitation or requirement
concerning the creation of indebtedness by Lessee. THE RENTAL PAYMENTS ARE TO BE
MADE ONLY FROM LESSEE'S LEGALLY A V AILABLE REVENUES APPROPRIATED ON
AN ANNUAL BASIS, AND NEITHER LESSEE, THE STATE, NOR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF SHALL BE OBLIGATED TO PAY ANY SUMS DUE
UNDER A LEASE FROM THE COMPELLED LEVY OF AD VALOREM OR OTHER TAXES
EXCEPT FROM THOSE LEG ALL Y A V AILABLE REVENUES APPROPRIATED BY LESSEE
ON AN ANNUAL BASIS, AND NEITHER THE FULL FAITH AND CREDIT NOR THE
TAXING POWER OF LESSEE, THE STATE OF FLORIDA OR ANY POLITICAL
SUBDIVISION THEREOF ARE PLEDGED FOR PAYMENT OF SUCH SUMS DUE UNDER A
LEASE.
Section 4.04. Rental Payments to be Unconditional. Except as provided in Section 3.02
and Section 3.03, the obligations of Lessee to make Rental Payments and to perform and observe
the other covenants and agreements contained in each Lease shall be absolute and unconditional in
all events without abatement, diminution, deduction, set-off or defense, for any reason, including
without limitation any failure of the Equipment, after it has been accepted by Lessee, any defects,
malfunctions, breakdowns or infirmities in the equipment or any accident, condemnation or
unforeseen circumstances.
Section 4.05. Tax Covenants. (a) Lessee agrees that it will not take any action that would
cause the interest component of Rental Payments to be or to become ineligible for the exclusion
from gross income of the owner or owners thereof for federal income tax purposes, and will not fail
to take in a timely manner any action necessary to maintain the exclusion of the interest component
of the Rental Payments from gross income of the owner or owners thereof for federal income tax
purposes, including, without limitation, the calculation and payment of any rebate required to
preserve such exclusion. Subject to Lessee's right to terminate the Lease as provided herein, the
foregoing covenant shall remain in effect until the date on which all obligations of Lessee in
fulfilling the above covenant under the Code have been met.
(b) In the event that Lessee does not spend the moneys in the Acquisition Fund within six
(6) months of the date the deposit is made pursuant to Section 3 .04( c), Lessee will, if required by
section 148(f) of the Code to pay rebate: (i) establish a Rebate Account and deposit the Rebate
Amount (as defined in Section 1.148-3(b) of the Federal Income Tax Regulations) not less
frequently than once per year after the applicable Commencement Date; and (ii) rebate to the United
States, not less frequently than once every five (5) years after the applicable Commencement Date,
an amount equal to at least 90% of the Rebate Amount and within 60 days after payment of all
Rental Payments or the Purchase Price as provided in Section 1O.01(a) hereof, 100% of the Rental
Payments or the Purchase Price and shall maintain such determination, together with any supporting
documentation required to calculate the Rebate Amount, until six (6) years after the date ofthe final
payment of the Rental Payments or the Purchase Price.
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Section 4.06. Event of Taxability. Upon the occurrence of an Event of Taxability, the
interest component shall be at the Taxable Rate, as defined in the Rental Payment Schedule,
retroactive to the date as of which the interest component is determined by the Internal Revenue
Service to be includible in the gross income of the owner or owners thereof for federal income tax
purposes, and Lessee will pay such additional amount as will result in the owner receiving the
interest component at the Taxable Rate. Lessee will also pay any penalties and interest charged to
Lessor by the Internal Revenue Service in connection with an Event of Taxability.
For purposes of this section, "Event of Taxability" means (i) a final determination of the
Internal Revenue Service or other agency or entity having lawful jurisdiction over the matter, after
any and all applicable appeals rights within such agency have been exhausted or after Lessee
chooses not to appeal such determination, or (ii) a determination by a court having lawful
jurisdiction over the matter, which determination is not subject to appeal or which Lessor in its sole
discretion chooses not to appeal, that the interest component is includible for federal income tax
purposes in the gross income of the owner thereof due to Lessee's action or failure to take any
action..
Section 4.07. Mandatory Prepayment. If the Lease Proceeds are deposited into an
Acquisition Fund, any funds remaining in the Acquisition Fund on or after the Acquisition Period
and not applied to Equipment Costs, shaH be applied by Lessor on the next Rental Payment date,
pro rata to the prepayment of the principal component of the outstanding Rental Payments due
under the applicable Schedule.
ARTICLE V.
Section 5.01. Delivery, Installation and Acceptance of Equipment.
(a) Lessee shaH order the Equipment, cause the Equipment to be delivered and
instaHed at the location specified in the Leases, and pay any and all delivery and installation
costs and other Equipment Costs in connection therewith. When the Equipment listed in any
Lease has been delivered and installed, Lessee shall promptly accept such Equipment and
evidence said acceptance by executing and delivering to Lessor an Acceptance Certificate in
the form attached hereto as Exhibit B.
(b) Lessee shall deliver to Lessor original invoices and bills of sale furnished by the
Vendor (if title to such Equipment has passed to Lessee) relating to each item of Equipment
accepted by Lessee. With respect to Equipment not purchased through an Acquisition Fund,
Lessor shall, upon receipt of an Acceptance Certificate from Lessee, prepare a Schedule of
Property and Rental Payment Schedule in the forms attached hereto as Exhibit A and
Exhibit A-I, respectively. Lessee shall execute and deliver such Schedules to Lessor within
5 business days of receipt.
Section 5.02. Enjoyment of Equipment. Lessor shaH provide Lessee with quiet use and
enjoyment of the Equipment during the Lease Term, and Lessee shaH peaceably and quietly have,
hold and enjoy the Equipment during the Lease Term, without suit, trouble or hindrance from
Lessor, except as otherwise expressly set forth in the related Lease. Lessor shaH not interfere with
such quiet use and enjoyment during the Lease Term so long as Lessee is not in default under the
related Lease.
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Section 5.03. Location and Inspection of the Equipment. Once installed, Lessee will not
move any item of the Equipment from the location specified for it in the Lease on which such item
is listed without Lessor's consent, which consent shall not be unreasonably withheld. Lessor shall
have the right at all reasonable times during regular business hours to enter into and upon the
property of Lessee for the purpose of inspecting the Equipment. Lessee shall promptly provide any
infonnation about the Equipment or a Lease that may be reasonably requested by Lessor.
Section 5.04. Use and Maintenance of the Equipment. Lessee will not install, use, operate,
or maintain the Equipment improperly, carelessly, in violation of any applicable law or in a manner
contrary to that contemplated by the related Lease. Lessee shall provide all pennits and licenses, if
any, necessary for the installation and operation of the Equipment. In addition, Lessee agrees to
comply in all respects with all applicable laws, regulations and rulings of any legislative, executive,
administrative, or judicial body; provided that Lessee may contest in good faith the validity or
application of any such law, regulation or ruling in any reasonable manner that does not, in the
opinion of Lessor, adversely affect the interest (including the reversionary interest) of Lessor in and
to the Equipment or its interest or rights under the Lease.
Lessee agrees that it will maintain, preserve, and keep the Equipment in good repair and
working order, in a condition comparable to that recommended by the manufacturer. Lessor shall
have no responsibility to maintain, repair or make improvements or additions to the Equipment. In
all cases, Lessee agrees to pay any costs necessary for the manufacturer to re-certify the Equipment
as eligible for manufacturer's maintenance upon the return of the Equipment to Lessor as provided
for herein.
Lessee shall not alter any item of Equipment or install any accessory, equipment or device
on an item of Equipment if that would impair any applicable warranty, the originally intended
function or the value of that Equipment. All repairs, parts, accessories, equipment and devices
furnished, affixed to or installed on any Equipment, excluding temporary replacements, shall
thereupon become subject to the Lease.
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ARTICLE VI.
Section 6.01. Title to the Equipment. During each Lease Term, and so long as Lessee is not
in default under Article XII hereof and no event of non-appropriation has occurred under Section
3.03 hereof, all right, title and interest in and to each item of the Equipment shall be vested in
Lessee immediately upon its acceptance of each item of Equipment, subject to the terms and
conditions of the applicable Lease and to the rights of the Lessor in and to the Equipment pursuant
to Section 3.03 and Article XII hereof. Lessee shall at all times protect and defend, at its own cost
and expense, its title in and to the Equipment from and against all claims, liens and legal processes
of its creditors, and keep all Equipment free and clear of all such claims, liens and processes. Upon
the occurrence of an Event of Default or upon termination of a Lease pursuant to Section 3.03
hereof, unless Lessee has elected not to return the Equipment and to purchase it pursuant to Section
10.01(a), full and unencumbered legal title to the Equipment shall be vested in the Lessor and the
Lessee shall have no further interest therein (except to the extent provided in Section 3.03, Section
l2.02(c) and Section 12.04) and the Lessee shall take all action necessary to evidence the vesting of
title in the Lessor within 10 days of such occurrence or termination. In addition, upon the
occurrence of such an Event of Default or such termination, Lessee shall execute and deliver to
Lessor such documents as Lessor may request to evidence the vesting of such legal title in the
Lessor and the termination of Lessee's interest therein, and upon request by Lessor shall deliver
possession of the Equipment to Lessor in accordance with Section 3.03 or Section 12.02, as the case
may be. Upon purchase of the Equipment under a Lease by Lessee pursuant to Section 10.01,
Lessor's interest in the Equipment shall terminate, and Lessor shall execute and deliver to Lessee
such documents as Lessee may request to evidence the termination of Lessor's interest in
Equipment subject to the related Lease.
Subject to Section 3.03 and the last sentence of Section l2.02(d), and only to the extent of
unpaid Rental Payments payable by Lessee pursuant to a Lease (and other amounts payable by
Lessee under such Lease) through the end of the then current Original Term or Renewal Term,
Lessor shall have an interest in the Equipment; provided, however, Lessor shall have only the
remedies described in Section 12.02 and shall not have a general foreclosure right that entitles
Lessor to a deficiency judgment or to retain Lessee's equity in the Equipment, if any.
Section 6.02. Personal Property. The Equipment is and will remain personal property and
will not be deemed to be affixed to or a part of the real estate on which it may be situated,
notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner
physically affixed or attached to real estate or any building thereon. Upon the request of Lessor,
Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from any party
having an interest in any such real estate or building.
ARTICLE VII.
Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges. Lessee
shall keep the Equipment free of all levies, liens, and encumbrances except those created by each
Lease. The parties to this Agreement contemplate that the Equipment will be used for a
governmental, municipal or public purpose or function of Lessee and that the Equipment will
therefore be exempt from all property taxes. If the use, possession or acquisition of any Equipment
is nevertheless determined to be subject to taxation, Lessee shall pay when due all taxes and
governmental charges lawfully assessed or levied against or with respect to such Equipment.
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JACK_1477474.1
Lessee shall pay all utility and other charges incurred in the use and maintenance of the Equipment.
Lessee shall pay such taxes or charges as the same may become due; provided that, with respect to
any such taxes or charges that may lawfully be paid in installments over a period of years, Lessee
shall be obligated to pay only such installments as accrue during each Lease Term. In the event that
the installation of any component of any item of Equipment could be deemed to require a
performance and payment bond under Section 255.05, Florida Statutes, or be deemed subject to the
mechanic's lien provisions of Chapter 713, Florida Statutes, or any successor statute to each, as they
may be amended from time to time, Lessee shall require such bonds, post such notices and do all
other things provided for under such laws in order to keep the Equipment free of and exempt from
all liens.
Section 7.02. Insurance. Lessee shall during each Lease Term maintain or cause to be
maintained (a) casualty insurance (with such deductibles as Lessor may approve) naming Lessor
and its assigns as additional insured and loss payee and insuring the Equipment against loss or
damage by fire and all other risks covered by the standard extended coverage endorsement then in
use in the State, and any other risks reasonably required by Lessor, in an amount at least equal to the
then applicable Purchase Price of the Equipment; (b) liability insurance that protects Lessor from
liability in all events in form and amount satisfactory to Lessor; and (c) worker's compensation
coverage as required by the laws of the State; provided that, with Lessor's prior written consent,
Lessee may self-insure against the risks described in clauses (a) and (b), to the extent permitted by
State law. Lessee shall furnish to Lessor evidence of such insurance or self-insurance coverage
throughout each Lease Term. Lessee shall not cancel or modify such insurance or self-insurance
coverage in any way that would affect the interests of Lessor without first giving written notice
thereof to Lessor at least 30 days in advance of such cancellation or modification.
Section 7. 03. Risk of Loss. Whether or not covered by insurance or self-insurance, Lessee
hereby assumes all risk of loss of, or damage to and liability related to injury or damage to any
persons or property arising from the Equipment from any cause whatsoever, and no such loss of or
damage to or liability arising from the Equipment shall relieve Lessee of the obligation to make the
Rental Payments or to perform any other obligation under this Lease. Whether or not covered by
insurance or self-insurance, Lessee hereby agrees to reimburse Lessor (to the fullest extent
permitted by applicable law, but only from legally available funds) for any and all liabilities,
obligations, losses, costs, claims, taxes or damages suffered or incurred by Lessor, regardless of the
cause thereof and all expenses incurred in connection therewith (including, without limitation,
counsel fees and expenses, and penalties connected therewith imposed on interest received) arising
out of or as a result of (a) entering into of this Agreement or any of the transactions contemplated
hereby, (b) the ordering, acquisition, ownership use, operation, condition, purchase, delivery,
acceptance, rejection, storage or return of any item the Equipment, (c) any accident in connection
with the operation, use, condition, possession, storage or return of any item of the Equipment
resulting in damage to property or injury to or death to any person, and/or (d) the breach of any
covenant of Lessee in connection with a Lease or any material misrepresentation provided by
Lessee in connection with a Lease. The provisions of this paragraph shall continue in full force and
effect notwithstanding the full payment of all obligations under all Leases or the termination of the
Lease Term under any Lease for any reason.
Section 7. 04. Advances. In the event Lessee shall fail to keep the Equipment in good repair
and working order, Lessor may, but shall be under no obligation to, maintain and repair the
Equipment and pay the cost thereof. All amounts so advanced by Lessor shall constitute additional
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rent for the then current Original Term or Renewal Term and Lessee covenants and agrees to pay
such amounts so advanced by Lessor with interest thereon from the due date until paid at a rate
equal to the Contract Rate plus 5% per annum or the maximum amount permitted by law,
whichever is less.
ARTICLE VIII.
Section 8.01. Damage, Destruction and Condemnation. Unless Lessee shall have
exercised its option to purchase the Equipment by making payment of the Purchase Price as
provided in the related Lease, if, prior to the termination of the applicable Lease Term, (a) the
Equipment or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other
casualty or (b) title to, or the temporary use of, the Equipment or any part thereof shall be taken
under the exercise or threat of the power of eminent domain by any governmental body or by any
person, firm or corporation acting pursuant to governmental authority, Lessee and Lessor will cause
the Net Proceeds of any insurance claim or condemnation award or sale under threat of
condemnation to be applied to the prompt replacement, repair, restoration, modification or
improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has
been completed shall be paid to Lessee.
If Lessee elects to replace any item of the Equipment (the "Replaced Equipment") pursuant
to this Section, the replacement equipment (the "Replacement Equipment") shall be of similar type,
utility and condition to the Replaced Equipment and shall be of equal or greater value than the
Replaced Equipment. Lessee shall represent, warrant and covenant to Lessor that each item of
Replacement Equipment is free and clear of all claims, liens, security interests and encumbrances,
excepting only those liens created by or through Lessor, and shall provide to Lessor any and all
documents as Lessor may reasonably request in connection with the replacement, including, but not
limited to, documentation in form and substance satisfactory to Lessor evidencing Lessor's interest
in the Replacement Equipment. Lessor and Lessee hereby acknowledge and agree that any
Replacement Equipment acquired pursuant to this paragraph shall constitute "Equipment" for
purposes of this Agreement and the related Lease. Lessee shall complete the documentation of
Replacement Equipment on or before the next Rental Payment date after the occurrence of a
casualty event, or be required to exercise the Purchase Option with respect to the damaged
equipment.
For purposes of this Article, the term "Net Proceeds" shall mean the amount remaining from
the gross proceeds of any insurance claim or condemnation award or sale under threat of
condemnation after deducting all expenses, including attorneys' fees, incurred in the collection
thereof.
Section 8.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in
full the cost of any replacement, repair, restoration, modification or improvement referred to in
Section 8.01, Lessee shall either (a) complete such replacement, repair, restoration, modification or
improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or (b) payor
cause to be paid to Lessor the amount of the then applicable Purchase Price for the Equipment, and,
upon such payment, the applicable Lease Term shall terminate and Lessor's interest in the
Equipment shall terminate as provided in Article VI hereof. The amount of the Net Proceeds, if
any, remaining after completing such repair, restoration, modification or improvement or after
purchasing such Equipment and such other Equipment shall be retained by Lessee. If Lessee shall
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JACK_1477474.1
make any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement
therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under
Article IV.
ARTICLE IX.
Section 9.01. Disclaimer of Warranties. Lessor makes no warranty or representation,
either express or implied, as to the value, design, condition, merchantability or fitness for particular
purpose or fitness for use of the Equipment, or any other warranty or representation, express or
implied, with respect thereto and, as to Lessor, Lessee's acquisition of the Equipment shall be on an
"as is" basis. In no event shall Lessor be liable for any incidental, indirect, special or consequential
damage in connection with or arising out of this Agreement, any Lease, the Equipment or the
existence, furnishing, functioning or Lessee's use of any item, product or service provided for in
this Agreement or any Lease.
Section 9.02. Vendor's Warranties. Lessor hereby irrevocably appoints Lessee its agent
and attorney-in-fact during each Lease Term, so long as Lessee shall not be in default under the
related Lease, to assert from time to time whatever claims and rights (including without limitation
warranties) relating to the Equipment that Lessor may have against Vendor. Lessee's sole remedy
for the breach of such warranty, indemnification or representation shall be against Vendor of the
Equipment, and not against Lessor. Any such matter shall not have any effect whatsoever on the
rights and obligations of Lessor with respect to any Lease, including the right to receive full and
timely payments under a Lease. Lessee expressly acknowledges that Lessor makes, and has made,
no representations or warranties whatsoever as to the existence or the availability of such warranties
by Lessor of the Equipment.
ARTICLE X.
Section 10.01. Purchase Option. Lessee shall have the option to purchase all of the
Equipment listed in a Lease, upon giving written notice to Lessor at least 30, but not more than 120,
days before the date of purchase, at the following times and upon the following terms:
(a) From and after the date specified in the related Schedule (the "Purchase
Option Commencement Date"), on the Rental Payment dates specified in each Lease, upon
payment in full of the Rental Payments then due under such Lease plus the then applicable
Purchase Price, and any prepayment premium on the unpaid balance as set forth in the
applicable Schedule; or
(b) In the event of substantial damage to or destruction or condemnation of
substantially all of the Equipment listed in a Lease, on the day specified in Lessee's notice to
Lessor of its exercise of the Purchase Option upon payment in full to Lessor of the Rental
Payments then due under such Lease plus the then applicable Purchase Price.
(c) Upon payment in full of all Rental Payments then due and all other amounts
then owing under the Lease, and the payment of $1.00 to Lessor.
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ARTICLE XI.
Section 11.01. Assignment by Lessor. (a) Lessor's right, title and interest in and to Rental
Payments and any other amounts payable by Lessee under any and all of the Leases, and all
proceeds therefrom may be assigned and reassigned in whole or in part to one or more assignees or
subassignees by Lessor, without the necessity of obtaining the consent of Lessee; provided,
however, that any such assignment, transfer or conveyance to a trustee for the benefit of owners of
certificates of participation shall be made in a manner that conforms to any applicable State and
Federal law. Nothing in this Section 11.01 shall be construed, however, to prevent Lessor from
executing any such assignment, transfer or conveyance that does not involve funding through the
use of certificates of participation within the meaning of applicable State law, including any such
assignment, transfer or conveyance as part of a multiple asset pool to a partnership or trust, interests
in which are offered and sold in a private placement or limited offering only to investors whom
Lessor reasonably believes are qualified institutional buyers or accredited investors within the
meaning of the applicable federal securities law; provided further, however, that in any event,
Lessee shall not be required to make Rental Payments, to send notices or to otherwise deal with
respect to matters arising under a Lease with or to more than one individual or entity.
(b) No assignment, transfer or conveyance permitted by this Section 11.01 shall be effective
until Lessee shall have received a written notice of assignment that discloses the name and address
of each such assignee; provided, however, that if such assignment is made to a bank or trust
company as trustee or paying agent for owners of certificates of participation, trust certificates or
partnership interests with respect to the Rental Payments payable under a Lease, it shall thereafter
be sufficient that Lessee receives notice of the name and address of the bank or trust company as
trustee or paying agent. During the term of each Lease, Lessee shall keep, or cause to be kept, a
complete and accurate record of all such assignments in form necessary to comply with Section 149
of the Code. Lessee shall retain all such notices as a register of all assignees and shall make all
payments to the assignee or assignees designated in such register. Lessee shall not have the right to
and shall not assert against any assignee any claim, counterclaim or other right Lessee may have
against Lessor or the Vendor. Assignments in part may include without limitation assignment of all
of Lessor's rights in, to and under the Lease related to the Equipment listed in a particular Lease.
The option granted in this Section may be separately exercised from time to time with respect to the
Equipment listed in each Lease, but such option does not permit the assignment of less than all of
Lessor's interests in the Equipment listed in a single Lease.
(c) If Lessor notifies Lessee of its intent to assign the Lease, Lessee agrees that it shall
execute and deliver to Lessor a Notice and Acknowledgement of Assignment substantially in the
form attached hereto as Exhibit E within five (5) business days after its receipt of such request.
Section 11.02. Assignment and Subleasing by Lessee. None of Lessee's right, title, and
interest in, to and under any Lease or any portion of the Equipment may be assigned or encumbered
by Lessee without prior written consent of Lessor.
ARTICLE XII.
Section 12.01. Events of Default Defined. Any of the following events shall constitute an
"Event of Default" under a Lease, subject to Section 3.03:
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JACK_1477474.1
(a) Failure by Lessee to pay any Rental Payment or other payment required to be
paid under any Lease within 10 days of the date when due as specified herein, other than as
a result of non appropriation under Section 3.03;
(b) Failure by Lessee to observe and perform any covenant, condition or
agreement on its part to be observed or performed, other than as referred to in subparagraph
(a) above, for a period of 30 days after written notice specifying such failure and requesting
that it be remedied is given to Lessee by Lessor, unless Lessor shall agree in writing to an
extension of such time prior to its expiration; provided that, if the failure stated in the notice
cannot be corrected within the applicable period, Lessor will not unreasonably withhold its
consent to an extension of such time if corrective action is instituted by Lessee within the
applicable period and diligently pursued until the default is corrected;
(c) Any statement, representation or warranty made by Lessee in or pursuant to
any Lease or its execution, delivery or performance shall prove to have been false, incorrect,
misleading, or breached in any material respect on the date when made;
(d) Any default occurs under any other agreement for borrowing money, lease
financing of property or otherwise or receiving credit under which Lessee is an obligor
under which there is outstanding, owing or committed in aggregate amount of at least 10%
of Lessee's aggregate current long- and short-term indebtedness, if such default consists of
(i) the failure to pay any indebtedness when due or (ii) the failure to perform any other
obligation thereunder and gives the holder of the indebtedness the right to accelerate the
indebtedness;
(e) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee,
custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be
unable, fail or admit in writing its inability generally to pay its debts as they become due,
(iii) make a general assignment for the benefit of creditors, (iv) have an order for relief
entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in
bankruptcy or a petition or an answer seeking reorganization or an arrangement with
creditors or taking advantage of any insolvency law or any answer admitting the material
allegations of a petition filed against Lessee in any bankruptcy, reorganization or insolvency
proceeding;
(f) An order, judgment or decree shall be entered by any court of competent
jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator or
Lessee or of all or a substantial part of the assets of Lessee, in each case without its
application, approval or consent, and such order, judgment or decree shall continue unstayed
and in effect for any period of 30 consecutive days; or
(g) Lessee shall consolidate, merge or otherwise combine with any other entity, or
sell, lease or dispose of all or a substantial portion of its assets.
Section 12.02. Remedies on Default. Whenever any Event of Default exists, Lessor shall
have the right, at its sole option without any further demand or notice, to take one or any
combination of the following remedial steps:
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JACK_1477474.1
(a) Lessor may by notice in writing to Lessee terminate the Lease, whereupon all
rights of Lessee to use the Equipment shall cease and terminate;
(b) By written notice to Lessee, Lessor may demand that Lessee pay, as liquidated
damages for loss of a bargain and not as a penalty, all unpaid Rental Payments payable by
Lessee pursuant to such Lease and other amounts payable by Lessee under such Lease to the
end of the then current Original Term or Renewal Term;
(c) With or without terminating the Lease Term under such Lease, Lessor may
request that Lessee at Lessee's expense promptly return any or all of such Equipment to the
possession of Lessor at such place within the United States as Lessor shall specify. In such
event, Lessor shall use its best efforts to sell or lease such Equipment or, for the account of
Lessee, sublease such Equipment. If Lessee returns the Equipment and Lessor sells, leases
or otherwise disposes of any or all of the Equipment, Lessor shall apply the proceeds of such
sale, lease or other disposition as described in Section 12.04. Lessee shall not be liable for
any deficiency after sale, lease or other disposition of the Equipment. If Lessee elects not to
return the Equipment, Lessor is entitled to payment of unpaid Rental Payments through the
date of Lessor's request to return the Equipment plus the then applicable Purchase Price, as
set forth in the applicable Schedule for such Equipment. The exercise of any such remedies
respecting any such Event of Default shall not relieve Lessee of any other liabilities under
any other Lease or the Equipment listed therein; and
(d) Subject to the next sentence, Lessor may take whatever action at law or in equity
may appear necessary or desirable to enforce its rights under such Lease. The parties to this
Agreement acknowledge that: (i) this Agreement is not intended to create a mortgage of or a
security interest in the Equipment as proscribed by Nohrr v. Brevard County Educational
Facilities Authority, 247 So. 2d 304 (Fla. 1971), and (ii) Lessor may not exercise any
foreclosure-type remedies if an Event of Default occurs, State v. Brevard County, 539 So.
2d 461 (Fla. 1989), notwithstanding any provisions to the contrary in this Agreement.
Section 12.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to
Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in
addition to every other remedy given under a Lease now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right or power may be
exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to
exercise any remedy reserved to it in this Article it shall not be necessary to give any notice other
than such notice as may be required in this Article.
Section 12.04. Application of Moneys. Any net proceeds from the exercise of any remedy
upon an occurrence of an Event of Default, nonappropriation by Lessee pursuant to Section 3.03
hereof or as may be otherwise provided for under this Agreement shall be applied in the following
order of priority: FIRST, to pay all of Lessor's costs, charges and expenses incurred in taking,
holding, repairing, selling, leasing or otherwise disposing of 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, then THIRD, to pay the Purchase Price applicable as of the end of the
then current Original Term or Renewal Term, as set forth in the Schedule for such Equipment, then
FOURTH to pay any remainder to Lessee; provided that if such remedy is exercised with respect to
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JACK_1477474.1
more than one Lease, Equipment listed in more than one Lease or rights under more than one Lease,
then to amounts due pursuant to such application of moneys pro rata among the Leases or
Equipment, as the case may be.
ARTICLE XIII.
Section 13.01. No Fees Paid by Lessor. Lessor hereby certifies that it has not paid or has
not promised to pay, directly or indirectly, a fee to any person not regularly employed by Lessor to
act as an intermediary between Lessee and Lessor for the purpose of influencing any transaction in
connection with this Agreement or any Lease.
Section 13.02. Notices. All notices, certificates or other communications under any Lease
shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail,
postage prepaid, or delivered by overnight courier, or sent by facsimile transmission (with
electronic confirmation) to the parties hereto at the addresses immediately after the signatures to
this Agreement (or at such other address as either party hereto shall designate in writing to the other
for notices to such party) and to any assignee at its address as it appears on the registration books
maintained by Lessee.
Section 13.03. Binding Effect. Each Lease shall inure to the benefit of and shall be binding
upon Lessor and Lessee and their respective successors and assigns.
Section 13.04. Severability. In the event any provision of 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. Any provisions in this Lease which are in conflict with
any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
Section 13.05. Amendments, Changes and Modifications. Each Lease may only be amended
by Lessor and Lessee in writing.
Section 13.06. Execution in Counterparts. Each Lease may be simultaneously executed in
several counterparts, each of which shall be an original and all of which shall constitute but one and
the same instrument.
Section 13.07. Applicable Law. Each Lease shall be governed by and construed m
accordance with the laws of the State.
Section 13.08. Captions. The captions or headings in this Agreement and in each Lease are
for convenience only and in no way define, limit or describe the scope or intent of any provisions or
sections of this Agreement or any Lease.
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JACK_1477474.1
IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in
their names by their duly authorized representatives as of the date first above written.
Lessor:
BANC OF AMERICA PUBLIC CAPITAL
CORP
Attn: Government Leasing Contract
Administration
Mail Code: CA5- 704-04-01
555 California Street, 4th Floor
San Francisco, California 94104
By:
Title:
JACK_1477474.1
Lessee:
ST. LUCIE COUNTY, FLORIDA
2300 Virginia Avenue
Fort Pierce, Florida 34982
By:
Title:
(Seal)
Attest:
By:
Title:
-21-
EXHIBIT A
Schedule of Property No.
Re: Master Equipment Lease/Purchase Agreement, dated as of January _,
2009, between Banc of America Public Capital Corp, a Kansas corporation,
as Lessor, and St. Lucie County, Florida, as Lessee.
1. Defined Terms. All terms used herein have the meanings ascribed to them in the
above-referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment Lease").
2. Equipment. The following items of Equipment are hereby included under this
Schedule of the Master Equipment Lease.
Quantity
Description
Serial No.
Model No.
Location
3. Payment Schedule.
Rental Payments. The Rental Payments shall be in such amounts and payable on
such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-l.
The obligation of Lessee to pay Rental Payments shall commence on the date on which the
Equipment listed in this Schedule is accepted by Lessee, as indicated in an Acceptance Certificate
substantially in the form of Exhibit B to the Master Equipment Lease or the date on which sufficient
moneys to purchase the Equipment are deposited for that purpose with an Acquisition Fund
Custodian, whichever is earlier.
Purchase Price Schedule. The Purchase Price on each Rental Payment date for the
Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date in the
"Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The Purchase
Price is in addition to all Rental Payments then due under this Schedule (including the Rental
Payment shown on the same line in the Rental Payment Schedule).
4. Representations. Warranties and Covenants. Lessee hereby represents, warrants and
covenants that its representations, warranties and covenants set forth in the Master Equipment Lease
are true and correct as though made on the date of commencement of Rental Payments on this
Schedule. Lessee further represents and warrants that (a) no Material Adverse Change in Lessee's
financial condition has occurred since the date of the Master Equipment Lease; (b) the governing
body of Lessee has authorized the execution and delivery of this Agreement and the Leases
pursuant to Resolution No. , approved on January 27, 2009; (c) the Equipment
described in the Agreement referenced above is essential to the functions of Lessee or to the
services Lessee provides its citizens; (d) lessee has an immediate need for, and expects to make
immediate use of, substantially all such Equipment, which will be used by Lessee only for the
purpose of performing one or more of Lessee's governmental or proprietary functions consistent
with the permissible scope of its authority; and (f) Lessee expects and anticipates adequate funds to
be available for all future payments or rent due after the current budgetary period.
A-l
JACK_1477474.1
5. The Lease. The terms and provisions of the Master Equipment Lease (other than to
the extent that they relate solely to other Schedules or Equipment listed on other Schedules) are
hereby incorporated into this Schedule by reference and made a part hereof.
6. Lease Proceeds. The Lease Proceeds which Lessor shall pay to the Acquisition Fund
Custodian in connection with this Schedule is $ , of which $ is for
deposit to the Expense Fund and the balance is for deposit to the Acquisition Fund. It is expected
that by [six (6)] [twelve (12)] [eighteen (18)] months from the date of this Schedule No.
, Lessee will have taken possession of all items of Equipment shown above and that a
Lessee's Acceptance Certificate, or Acceptance Certificates, will be signed by Lessee and delivered
to Lessor on or before [six (6)] [twelve (12)] [eighteen (18)] months from the date of this
Schedule No.
7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end at
the conclusion of the _ month following the date hereof.
8. Lease Term. The Lease Term shall consist of the Original Term and
consecutive Renewal Terms, with the final Renewal Term ending on
9. Purchase Option Commencement Date. For purposes of Section 10.01 of the Lease,
the Purchase Option Commencement Date is
Lessee shall be responsible for the correct titling of all Equipment leased hereunder. Lessee
will cause the original Certificates of Title to be delivered to Lessor for retention in Lessor's files
throughout the term of the Lease.
Dated:
Lessor:
Lessee:
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982
By:
[Name/Title]
By:
[Name/Title]
(Seal)
Attest:
By:
[Name/Title]
A-2
JACK_1477474.1
Exhibit A-I
Rental Payment Schedule
Rental Payment
Date
( )
Rental Payment
Amount
Interest Portion
Principal
Portion
Purchase Price[*]
[*The Purchase Option Commencement Date shall be
. [Describe tenns of prepayment.]
Premium]
Date of Purchase
For purposes of this Lease, "Taxable Rate," with respect to the interest component of Rental
Payments, means an annual rate of interest equal to _ %.
Lessee:
ST. LUCIE COUNTY, FLORIDA
By:
Title:
After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
A-3
JACK_1477474.1
EXHIBIT B
Acceptance Certificate
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Re: Schedule of Property No. , dated , to
Master Equipment LeaselPurchase Agreement, dated as of January
_, 2009, between Banc of America Public Capital Corp, as Lessor,
and St. Lucie County, Florida, as Lessee.
Ladies and Gentlemen:
In accordance with the Master Equipment LeaselPurchase Agreement (the "Agreement"),
the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows:
1. All of the Equipment (as such term is defined in the Agreement) listed in the above-
referenced Schedule of Property (the "Schedule") has been delivered, installed and accepted on the
date hereof.
2. Lessee has conducted such inspection and/or testing of the Equipment listed in the
Schedule as it deems necessary and appropriate and hereby acknowledges that it accepts the
Equipment for all purposes.
3. Lessee is currently maintaining the insurance coverage required by Section 7.02 of
the Agreement.
4. No event or condition that constitutes, or with notice or lapse of time, or both, would
constitute, an Event of Default (as defined in the Agreement) exists at the date hereof.
Date:
Lessee
ST. LUCIE COUNTY, FLORIDA
[Seal]
By:
[Name/Title]
B-1
JACK_1477474.1
EXHIBIT C
Clerk Certificate
The undersigned, a duly elected and acting Clerk of the Board of County
Commissioners of St. Lucie County, Florida, (the "Lessee") certifies as follows:
A. The following listed persons are duly elected and acting officials of Lessee (the
"Officials") in the capacity set forth opposite their respective names below and the signatures set
opposite thereto are the genuine signatures of such persons;
Signature
Name of Official
Title
B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and deliver
the Master Equipment Lease/Purchase Agreement dated as of January _,2009 and the Schedule(s)
thereunder and all future Schedule(s), each by and between the Lessee and Banc of America Banc
of America Public Capital Corp, as Lessor and the Acquisition Fund Agreement dated as of January
_, 2009, among Lessor, Lessee and Bank of America, N.A., as Acquisition Fund Custodian
(collectively, the "Agreements") and these Agreements are binding and authorized Agreements of
Lessee, enforceable in all respects in accordance with their terms.
Dated: January _, 2009
By:
Title: Clerk of the Board of County
Commissioners ofSt. Lucie County, Florida
(The signer of this Certificate cannot be listed above as authorized to execute the
Agreements.)
C-l
JACK_1477474.1
EXHIBIT D
Opinion of Counsel to Lessee
Bane of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Re: Schedule of Property No. , dated , 20 , to Master
Equipment LeaseIPurchase Agreement, dated as of January _, 2009 between
Bane of America Public Capital Corp, as Lessor, and the St. Lucie County,
Florida, as Lessee
Ladies and Gentlemen:
As counsel to St. Lucie County, Florida (the "Lessee"), I have examined (a) an executed
counterpart of a certain Master Equipment LeaseIPurchase Agreement, dated as of January ---'
2009, and Exhibits thereto by and between Bane of America Public Capital Corp (the "Lessor") and
the Lessee (the "Agreement") and an executed counterpart of Schedule of Property No. _,
dated ,20_, by and between Lessor and Lessee (the "Schedule"), which, among
other things, provides for the lease of certain property listed in the Schedule (the "Equipment"), (b)
the Acquisition Fund Agreement dated as of , 20_ by and among the Lessor, the
Lessee and Bank of America N.A., as the Acquisition Fund Institution (the "Acquisition Fund
Agreement"), (c) a copy of the Resolution No. adopted by the Board of County
Commissioners ofthe Lessee on January 27, 2009, which, among other things, authorized Lessee to
execute the Agreement and the Schedule (the "Resolution") and (d) such other opinions, documents
and matters of law as I have deemed necessary in connection with the following opinions. The
Schedule and the terms and provisions of the Agreement incorporated therein by reference together
with the Rental Payment Schedule attached to the Schedule are herein referred to collectively as the
"Lease." All capitalized terms not defined herein shall have the meanings ascribed thereto in the
Lease.
Based on the foregoing, I am of the following opinions:
1. Lessee was duly created and is validly existing as a public body corporate and
politic, duly organized under the laws of the State, and is a political subdivision of a state within the
meaning of Section 1 03( c) of the Internal Revenue Code of 1986, as amended (the "Code"), and the
obligations of Lessee under the Agreement will constitute an obligation of Lessee within the
meaning of Section 103(a) of the Code, notwithstanding Section 103(b) of the Code];
2. Lessee has full legal right, power and authority to adopt the Resolution, to lease and
acquire the Equipment, to execute and deliver the Lease and the Acquisition Fund Agreement and
to perform its obligations under the Lease and the Acquisition Fund Agreement;
3. The execution and delivery of the Lease and the Acquisition Fund Agreement by the
Lessee has been duly authorized and the Lease and the Acquisition Fund Agreement have been duly
executed and delivered by the Lessee;
0-1
JACK_1477474.1
4. The Acquisition Fund Agreement has been duly authorized, approved, executed and
delivered by and on behalf of the Lessee and is a valid and binding obligation of the Lessee
enforceable in accordance with its terms, except to the extent that enforceability of the rights and
remedies set forth therein may be limited by bankruptcy, insolvency or other laws affecting
creditors' rights generally, and subject, as to enforceability, to general principles of equity regardless
of whether enforcement is sought in a proceeding in equity or at law;
5. The authorization, approval, execution and delivery of the Lease and all other
proceedings of Lessee relating to the transactions contemplated thereby have been performed in
accordance with all open meeting laws, public bidding laws and all other applicable state or federal
laws; and
6. There is no proceeding pending or threatened in any court or before any
governmental authority or arbitration board or tribunal that, if adversely determined, would
adversely affect the transactions contemplated by the Lease and the Acquisition Fund Agreement or
the interest of Lessor or its assigns, as the case may be, in the Equipment under the Lease.
Lessor and its successors and assigns, and any counsel rendering an opinion on the tax-
exempt status of the interest components of the Rental Payments, are entitled to rely on this opinion.
Respectfully submitted,
County Attorney
0-2
JACK_1477474.1
EXHIBIT E
Form of Notice and Acknowledgement of Assignment
Dated
BANC OF AMERICA PUBLIC CAPITAL CORP, a Kansas corporation
( "Assignor ") hereby gives notice that it has assigned and sold to r 1
("Assignee ") all of Assignor's right, title and interest in, to and under [Schedule of Property] No.
r 1, dated r 1 (the "Lease ") to the Master Equipment Lease/Purchase
Agreement ("Equipment Lease ") dated as of January _, 2009, between Assignor and St. Lucie
County, Florida ("Lessee ").
For purposes of this Notice and Acknowledgment of Assignment (the "Acknowledgment"),
"Lease" means collectively the Lease identified above, together with all exhibits, schedules,
addenda and attachments related thereto, and all certifications and other documents delivered in
connection therewith. The term "Lease" specifically excludes all other [Schedules of Property]
entered into under the Equipment Lease and rental payments other than with respect to the
[Schedule of Property] identified above. Each capitalized term used but not defined herein has the
meaning set forth in the Equipment Lease described above.
I. Pursuant to the authority of Resolution adopted on
, Lessee hereby [consents to and] acknowledges the effect of the
assignment of the Lease and absolutely and unconditionally agrees to deliver to Assignee all rental
payments and other amounts coming due under the Lease in accordance with the terms thereof on
and after the date of this Acknowledgment.
2. Lessee hereby agrees that: (i) Assignee shall have all the rights of Lessor under the
Lease and all related documents, including, but not limited to, the rights to issue or receive all
notices and reports, to give all consents or agreements to modifications thereto, to receive title to the
equipment in accordance with the terms of the Lease, to declare a default and to exercise all
remedies thereunder; and (ii) except as provided in Section 3.03 of the Lease, the obligations of
Lessee to make rental payments and to perform and observe the other covenants and agreements
contained in the Lease shall be absolute and unconditional in all events without abatement,
diminution, deduction, set-off or defense.
3. Lessee agrees that, as of the date of this Acknowledgment, the following information
about the Lease is true, accurate and complete:
Number of Rental Payments Remaining -
Amount of Each Rental Payment $
Total Amount of Rents Remaining $
Frequency of Rental Payments
Next Rental Payment Due
Funds Remaining in Escrow Fund $
E-l
JACK_14774741
4. The Lease remains in full force and effect, has not been amended and no
nonappropriation or event of default (or event which with the passage of time or the giving of notice
or both would constitute a default) has occurred thereunder.
5. Any inquiries of Lessee related to the Lease and any requests for escrow
disbursements, if applicable, and all rental payments and other amounts coming due pursuant to the
Lease on and after the date of this Acknowledgment should be remitted to Assignee at the following
address (or such other address as provided to Lessee in writing from time to time by Assignee):
ACKNOWLEDGED AND AGREED:
LESSEE: ST. LUCIE COUNTY, FLORIDA
[FOR EXHIBIT PURPOSES ONL YI
By:
Name:
Title:
ASSIGNOR: BANC OF AMERICA PUBLIC CAPITAL CORP
[FOR EXHIBIT PURPOSES ONL YI
By:
Name:
Title:
E-2
JACK_1477474.1
Schedule of Property No.1
Re: Master Equipment LeaseIPurchase Agreement, dated as of January _,
2009, between Banc of America Public Capital Corp, a Kansas
corporation, as Lessor, and St. Lucie County, Florida, as Lessee.
1. Defined Terms. All terms used herein have the meanings ascribed to them
in the above-referenced Master Equipment LeaseIPurchase Agreement (the "Master Equipment
Lease").
2. Equipment. The following items of Equipment are hereby included under
this Schedule of the Master Equipment Lease: 58 Laptops with DVD, 46 Docking Stations, 42
High-End Desktops, 267 Standard Desktops with FDD, 146 Standard Desktops with FDD and 45
EOC Small Form Factors (all of which shall be more fully identified at such time the Lessee
submits and Acquisition Fund Requisition to the Acquisition Fund Custodian in accordance with
the Acquisition Fund Agreement).
3. Payment Schedule.
Rental Payments. The Rental Payments shall be in such amounts and payable on
such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-I.
The obligation of Lessee to pay Rental Payments shall commence on the date on which the
Equipment listed in this Schedule is accepted by Lessee, as indicated in an Acceptance
Certificate substantially in the form of Exhibit B to the Master Equipment Lease or the date on
which sufficient moneys to purchase the Equipment are deposited for that purpose with an
Acquisition Fund Custodian, whichever is earlier.
Purchase Price Schedule. The Purchase Price on each Rental Payment date for
the Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date
in the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The
Purchase Price is in addition to all Rental Payments then due under this Schedule (including the
Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representations, Warranties and Covenants. Lessee hereby represents, warrants
and covenants that its representations, warranties and covenants set forth in the Master
Equipment Lease are true and correct as though made on the date of commencement of Rental
Payments on this Schedule. Lessee further represents and warrants that (a) no Material Adverse
Change in Lessee's financial condition has occurred since the date of the Master Equipment
Lease; (b) the governing body of Lessee has authorized the execution and delivery of this
Agreement and the Leases pursuant to Resolution No. , approved on January 27,
2009; (c) the Equipment described in the Agreement referenced above is essential to the
functions of Lessee or to the services Lessee provides its citizens; (d) Lessee has an immediate
need for, and expects to make immediate use of, substantially all such Equipment, which will be
used by Lessee only for the purpose of performing one or more of Lessee's governmental or
proprietary functions consistent with the permissible scope of its authority; and (e) Lessee
expects and anticipates adequate funds to be available for all future payments or rent due after
the current budgetary period.
JACK_1477521.1
5. The Lease. The terms and provisions of the Master Equipment Lease
(other than to the extent that they relate solely to other Schedules or Equipment listed on other
Schedules) are hereby incorporated into this Schedule by reference and made a part hereof.
6. Lease Proceeds. The Lease Proceeds which Lessor shall pay to the Acquisition
Fund Custodian in connection with this Schedule is $[640,000], all of which is for deposit to the
Acquisition Fund. It is expected that by eighteen (18) months from the date of this Schedule No.
1, Lessee will have taken possession of all items of Equipment shown above and that a Lessee's
Acceptance Certificate, or Acceptance Certificates, will be signed by Lessee and delivered to
Lessor on or before eighteen (18) months from the date of this Schedule No.1.
7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end
at the conclusion of the 18th month following the date hereof.
8. Lease Term. The Lease Term shall consist of the Original Term and two
consecutive Renewal Terms, with the final Renewal Term ending on January _,2012.
9. Purchase Option Commencement Date. For purposes of Section 10.01 of the
Lease, the Purchase Option Commencement Date is
Lessee shall be responsible for the correct titling of all Equipment leased hereunder.
Lessee will cause the original Certificates of Title to be delivered to Lessor for retention in
Lessor's files throughout the term of the Lease.
Dated: January _' 2009.
Lessor:
Lessee:
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982
By:
[Name/Title]
By:
[Name/Title]
(Seal)
Attest:
By:
[Name/Title]
2
JACK_14775211
Exhibit A-I
Rental Payment Schedule
Rental Payment
Date
( )
Rental Payment
Amount
Interest Portion
Principal
Portion
Purchase Price[*]
[*The Purchase Option Commencement Date shall be
prepayment. ]
[Describe terms of
Premium]
Date of Purchase
For purposes of this Lease, "Taxable Rate," with respect to the interest component
of Rental Payments, means an annual rate of interest equal to _%.
Lessee:
ST. LUCIE COUNTY, FLORIDA
By:
Title:
After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
3
JACK_1477521.1
Schedule of Property No.2
Re: Master Equipment Lease/Purchase Agreement, dated as of January _,
2009, between Banc of America Public Capital Corp, a Kansas
corporation, as Lessor, and St. Lucie County, Florida, as Lessee.
1. Defined Tenns. All terms used herein have the meanings ascribed to them
in the above-referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment
Lease").
2. Equipment. The following items of Equipment are hereby included under
this Schedule of the Master Equipment Lease: 4 Remote-Firewall Servers, 7 Application Servers
and 5 EOC Servers (all of which shall be more fully identified at such time the Lessee submits
and Acquisition Fund Requisition to the Acquisition Fund Custodian in accordance with the
Acquisition Fund Agreement).
3. Payment Schedule.
Rental Payments. The Rental Payments shall be in such amounts and payable on
such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-I.
The obligation of Lessee to pay Rental Payments shall commence on the date on which the
Equipment listed in this Schedule is accepted by Lessee, as indicated in an Acceptance
Certificate substantially in the fonn of Exhibit B to the Master Equipment Lease or the date on
which sufficient moneys to purchase the Equipment are deposited for that purpose with an
Acquisition Fund Custodian, whichever is earlier.
Purchase Price Schedule. The Purchase Price on each Rental Payment date for
the Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date
in the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The
Purchase Price is in addition to all Rental Payments then due under this Schedule (including the
Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representations. Warranties and Covenants. Lessee hereby represents, warrants
and covenants that its representations, warranties and covenants set forth in the Master
Equipment Lease are true and correct as though made on the date of commencement of Rental
Payments on this Schedule. Lessee further represents and warrants that (a) no Material Adverse
Change in Lessee's financial condition has occurred since the date of the Master Equipment
Lease; (b) the governing body of Lessee has authorized the execution and delivery of this
Agreement and the Leases pursuant to Resolution No. , approved on January 27,
2009; (c) the Equipment described in the Agreement referenced above is essential to the
functions of Lessee or to the services Lessee provides its citizens; (d) Lessee has an immediate
need for, and expects to make immediate use of, substantially all such Equipment, which will be
used by Lessee only for the purpose of perfonning one or more of Lessee's governmental or
proprietary functions consistent with the pennissible scope of its authority; and (e) Lessee
expects and anticipates adequate funds to be available for all future payments or rent due after
the current budgetary period.
JACK_1477523.1
5. The Lease. The terms and provisions of the Master Equipment Lease
(other than to the extent that they relate solely to other Schedules or Equipment listed on other
Schedules) are hereby incorporated into this Schedule by reference and made a part hereof.
6. Lease Proceeds. The Lease Proceeds which Lessor shall pay to the Acquisition
Fund Custodian in connection with this Schedule is $[430,000], all of which is for deposit to the
Acquisition Fund. It is expected that by eighteen (18) months from the date of this Schedule No.
2, Lessee will have taken possession of all items of Equipment shown above and that a Lessee's
Acceptance Certificate, or Acceptance Certificates, will be signed by Lessee and delivered to
Lessor on or before eighteen (18) months from the date of this Schedule No.2.
7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end
at the conclusion of the 18th month following the date hereof.
8. Lease Term. The Lease Term shall consist of the Original Term and four
consecutive Renewal Terms, with the final Renewal Term ending on January _,2014.
9. Purchase Option Commencement Date. For purposes of Section 10.01 of the
Lease, the Purchase Option Commencement Date is
Lessee shall be responsible for the correct titling of all Equipment leased hereunder.
Lessee will cause the original Certificates of Title to be delivered to Lessor for retention in
Lessor's files throughout the term of the Lease.
Dated: January _,2009.
Lessor:
Lessee:
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982
By:
[Name/Title]
By:
[Name/Title]
(Seal)
Attest:
By:
[Name/Title]
2
JACK_1477523.1
Exhibit A-I
Rental Payment Schedule
Rental Payment
Date
( )
Rental Payment
Amount
Interest Portion
Principal
Portion
Purchase Price[*]
[*The Purchase Option Commencement Date shall be
prepayment.]
[Describe terms of
Premium]
Date of Purchase
For purposes of this Lease, "Taxable Rate," with respect to the interest component
of Rental Payments, means an annual rate of interest equal to _ %.
Lessee:
ST. LUCIE COUNTY, FLORIDA
By:
Title:
After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
3
JACK_1477523.1
EXHIBIT B
ACQUISITION FUND AGREEMENT
B-1
ACQUISITION FUND AGREEMENT
(Florida Version)
This Acquisition Fund Agreement is dated January _, 2009, by and among
Banc of America Public Capital Corp, a Kansas Corporation (hereinafter referred to as
"Lessor"), St. Lucie County, Florida, a political subdivision existing under the laws of the State
of Florida (hereinafter referred to as "Lessee"), and Bank of America, N.A., a national banking
association (hereinafter referred to as "Acquisition Fund Custodian").
Reference is made to that certain Master Equipment Lease/Purchase Agreement
dated as of January _, 2009 between Lessor and Lessee (hereinafter referred to as the
"Lease"), covering the acquisition and lease of certain equipment described in the Schedules of
Property Nos. 1 and 2 thereto (the "Equipment"). It is a requirement of the Lease that the
Equipment Costs of $[ 1,070,000] be deposited into an escrow under terms satisfactory to Lessor,
for the purpose of fully funding the Lease, and providing a mechanism for the application of
such amounts to the purchase of and payment for the Equipment.
The parties agree as follows:
1. Creation of Acquisition Fund.
(a) There is hereby created a special trust fund to be known as the "St. Lucie
County Acquisition Fund," for Account No. , relating to Schedules of Property
Nos. 1 and 2 to the Lease (the "Acquisition Fund") to be held in trust by the Acquisition Fund
Custodian for the purposes stated herein, for the benefit of the Lessor and the Lessee, to be held,
disbursed and returned in accordance with the terms hereof.
(b) The Acquisition Fund Custodian shall invest and reinvest moneys on deposit
in the Acquisition Fund in Qualified Investments (defined below) in accordance with written
instructions received from the Lessee. The Lessee shall be solely responsible for ascertaining
that all proposed investments and reinvestments are Qualified Investments and that they comply
with federal, state and local laws, regulations and ordinances governing investment of such funds
and for providing appropriate notice to the Acquisition Fund Custodian for the reinvestment of
any maturing investment. Accordingly, neither the Acquisition Fund Custodian nor the Lessor
shall be responsible for any liability, cost, expense, loss or claim of any kind, directly or
indirectly arising out of or related to the investment or reinvestment of all or any portion of the
moneys on deposit in the Acquisition Fund, and the Lessee agrees to and does hereby release the
Acquisition Fund Custodian and the Lessor from any such liability, cost, expenses, loss or claim.
Interest on the Acquisition Fund shall become part ofthe Acquisition Fund, and gains and losses
on the investment of the moneys on deposit in the Acquisition Fund shall be borne by the
Acquisition Fund.
(c) For purposes of this agreement, "Qualified Investments" means any
investments which meet the requirements of Section 218.415, Florida Statutes.
EXHIBIT
JACK_ 1477525.1
~
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(d) Unless the Acquisition Fund is earlier terminated in accordance with the
provisions of paragraph (e) below, amounts in the Acquisition Fund shall be disbursed by the
Acquisition Fund Custodian in payment of amounts described in Section 2 hereof upon receipt of
written authorization(s) from the Lessor, as is more fully described in Section 2 hereof. If the
amounts in the Acquisition Fund are insufficient to pay such amounts, the Lessee shall provide
any balance of the funds needed to complete the acquisition of the Equipment. Any moneys
remaining in the Acquisition Fund after the Acquisition Period (as defined in the Lease) shall be
applied as provided in Section 4 hereof.
(e) Each Acquisition Fund shall be terminated at the earliest of (i) the final
distribution of amounts in such Acquisition Fund, (ii) written notice given by the Lessor of the
occurrence of a default or termination of the Lease due to non-appropriation or (iii) the end of
the Acquisition Period.
(f) The Acquisition Fund Custodian may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine and may assume the
validity and accuracy of any statement or assertion contained in such a writing or instrument.
The Acquisition Fund Custodian shall not be liable in any manner for the sufficiency or
correctness as to form, manner of execution, or validity of any instrument nor as to the identity,
authority, or right of any person executing the same; and its duties hereunder shall be limited to
the receipt of such moneys, instruments or other documents received by it as the Acquisition
Fund Custodian, and for the disposition of the same in accordance herewith.
(g) Unless the Acquisition Fund Custodian is guilty of gross negligence or willful
misconduct with regard to its duties hereunder, to the extent provided by law the Lessee agrees
to and does hereby release and indemnify the Acquisition Fund Custodian and hold it harmless
from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expense, fees or charges of any character or nature, including reasonable attorneys' fees
and the cost of defending any action, suit or proceeding or resisting any claim, which it may
incur or with which it may be threatened by reason of its acting as Acquisition Fund Custodian
under this agreement. Nothing contained herein shall or is intended to act as a waiver of the
Lessee's sovereign immunity for tort liability under Section 768.28, Florida Statutes.
(h) If the Lessee and the Lessor shall be in disagreement about the interpretation
of the Lease, or about the rights and obi igations, or the propriety of any action contemplated by
the Acquisition Fund Custodian hereunder, the Acquisition Fund Custodian may, but shall not be
required to, file an appropriate civil action to resolve the disagreement. The Acquisition Fund
Custodian shall be reimbursed by the Lessee for all costs, including reasonable attorneys' fees, in
connection with such civil action, and shall be fully protected in suspending all or part of its
activities under the Lease until a final judgment in such action is received.
(i) The Acquisition Fund Custodian may consult with counsel of its own choice
and shall have full and complete authorization and protection with the opinion of such counsel.
The Acquisition Fund Custodian shall otherwise not be liable for any mistakes of fact or errors of
judgment, or for any acts or omissions of any kind unless caused by its willful misconduct.
2
JACK_1477525.1
G) The Lessee shall reimburse the Acquisition Fund Custodian for all reasonable
costs and expenses, including those of the Acquisition Fund Custodian's attorneys, agents and
employees incurred for extraordinary administration of the Acquisition Fund and the
performance of the Acquisition Fund Custodian's powers and duties hereunder in connection
with any Event of Default under the Lease, or in connection with any dispute between Lessor
and Lessee concerning the Acquisition Fund.
2. Acquisition of Property.
(a) Acquisition Contracts. The Lessee will arrange for, supervise and provide for,
or cause to be supervised and provided for, the acquisition of the Equipment set forth in the
Schedule to the Lease, with moneys available in the Acquisition Fund. The Lessee represents
the estimated costs of the Equipment are within the funds estimated to be available therefor, and
the Lessor makes no warranty or representation with respect thereto. The Lessor shall have no
liability under any of the acquisition or construction contracts. The Lessee shall obtain all
necessary permits and approvals, if any, for the acquisition, equipping and installation of the
Equipment, and the operation and maintenance thereof.
(b) Authorized Acquisition Fund Disbursements. Disbursements from the
Acquisition Fund shall be made for the purpose of paying (including the reimbursement to the
Lessee for advances from its own funds to accomplish the purposes hereinafter described) the
cost of acquiring the Equipment.
(c) Requisition Procedure. No disbursement from an Acquisition Fund shall be
made unless and until the Lessor has approved such requisition. Prior to disbursement from an
Acquisition Fund there shall be filed with the Acquisition Fund Custodian a requisition for such
payment in the form of Disbursement Request attached hereto, stating each amount to be paid,
the Acquisition Fund from which the amount is to be paid, the name of the person, firm or
corporation to whom payment thereof is due, and wire or transfer instructions. Each such
requisition shall be signed by an authorized representative of the Lessee (an "Authorized
Representative") and by Lessor. The Lessee shall also provide Lessor with an Acceptance
Certificate in the form attached as Exhibit 8 to the Lease, executed by Lessee, together with any
purchase agreement or bill of sale and invoice therefor as required by Section 5.01 of the Lease;
3. Deposit to Acquisition Fund. Upon satisfaction of the conditions specified in Section
3.05 of the Lease, Lessor will cause the Lease Proceeds to be deposited in the Acquisition Fund.
The Lessee agrees to pay any costs with respect to the Equipment in excess of amounts available
therefor in the Acquisition Fund.
4. Excessive Acquisition Fund. Following the final disbursement from the Acquisition
Fund at the end of the Acquisition Period, or termination of the Acquisition Fund as otherwise
provided herein, the Acquisition Fund Custodian shall transfer any remainder from the
Acquisition Fund to the Lessor for application to amounts owed under the Lease in accordance
with Section 4.07 of the Lease.
5. Miscellaneous. Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Lease. This agreement may not be amended except in writing
3
JACK_1477525.1
signed by all parties hereto. This agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original instrument and each shall have the force and effect of
an original and all of which together constitute, and shall be deemed to constitute, one and the
same instrument. Notices hereunder shall be made in writing and shall be deemed to have been
duly given when personally delivered or when deposited in the mail, first class postage prepaid,
or delivered to an express carrier, charges prepaid, or sent by facsimile with electronic
confirmation, addressed to each party at its address below:
If to the Lessor:
If to the Lessee:
If to the Acquisition
Fund Custodian:
Banc of America Public Capital Corp
555 California Street, 4th Floor
Mail Code CA5-705-04-01
San Francisco, CA 94104
Attn: Government Leasing Contract Administration
Phone: (415) 765-7404
Fax: (415) 343-0533
St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982
Attn:
Phone:
Fax:
Bank of America, N.A.
[Address]
Attn:
Phone:
Fax:
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
JACK_1477525.1
4
IN WITNESS WHEREOF, the parties have executed this Acquisition Fund
Agreement as of the date first above written.
Banc of America Public Capital Corp
St. Lucie County, Florida
By:
[Name/Title]
By:
[Name/Title]
Bank of America, N.A., as Acquisition Fund
Custodian
By:
Name:
Title:
5
JACK_1477525.1
,2009
ACQUISITION FUND REQUISITION NO. _
Pursuant to Section 2(c) of the Acquisition Fund Agreement dated January _, 2009
(the "Acquisition Fund Agreement"), by and among Banc of America Public Capital Corp ("Lessor"),
St. Lucie County, Florida ("Lessee"), and Bank of America, N.A. ("Acquisition Fund Custodian"), the
undersigned Authorized Representative of the Lessee hereby requests and authorizes the Acquisition
Fund Custodian to pay to the account listed on the Disbursement Schedule, from the moneys deposited
in Acquisition Fund No. _ (Account No. ), the aggregate sum of $ , to
pay such person(s) or to reimburse the Lessee for the expenditures made by it in connection with the
items of Equipment (as defined in the Lease) listed on the attached Disbursement Schedule.
In connection with the foregoing request and authorization, the undersigned hereby
certifies that:
(A) He or she is an Authorized Representative under the Acquisition Fund
Agreement;
(B) An obligation in the stated amount has been incurred by the Lessee, and the
same is a proper charge against the Acquisition Fund described above for costs relating to the
Equipment identified in the Schedule relating to such Acquisition Fund, and has not been previously
paid;
(C) The Authorized Representative has no notice of any vendor's, mechanic's or
other liens or rights to liens, chattel mortgages, conditional sales contracts or security interests which
should be satisfied or discharged before such payment is made;
(D) This requisition contains no item representing payment on account, or any
retained percentages which the Lessee is, at the date of such certificate, entitled to retain;
(E) The Equipment is insured in accordance with the Lease;
(F) No Event of Default, and no event which with notice or lapse of time, or both,
would become an Event of Default under the Lease has occurred and is continuing at the date hereof;
and
(G) No material adverse change in Lessee's financial condition has occurred since
the date of the Lease.
A-I
~ACK_14775251
This statement and all exhibits hereto, including the Disbursement Schedule, shall be
conclusive evidence of the facts and statements set forth herein and shall constitute full warrant,
protection and authority to the Acquisition Fund Custodian for its actions taken pursuant hereto.
Dated:
,200_,
ST. LUCIE COUNTY, FLORIDA
By:
Authorized Representative
Approved:
BANC OF AMERICA PUBLIC CAPITAL
CORP
By:
Name:
Title:
A-2
JACK_1477525.1
DISBURSEMENT SCHEDULE
Payee Name and Address
Invoice Number
Amount
Purpose
Disbursement Instructions: Amounts to be disbursed pursuant to this Disbursement Schedule shaH be
transferred to:
· Account No.
Account Holder:
Financial Institution: Bank of America, N.A.
or wired to:
.
ABA Routing #:
Account No.:
Account Holder:
Financial Institution Name:
Financial Institution Address:
Financial Institution Phone:
A-3
~ACK_1477525.1
EXHIBIT C
LESSOR'S PROPOSAL
C-l
F &L Draft of 1/16/2009
Master Equipment LeaselPurchase Agreement
by and between
BANC OF AMERICA PUBLIC CAPITAL CORP
("Lessor")
and
ST. LUCIE COUNTY, FLORIDA
("Lessee")
Dated as of: January _, 2009
JACK_1477474.1
TABLE OF CONTENTS
Page
ARTICLE I. ........ ...... ..................... ............. ............ ........ ........... ....... ...... ...... ...... ...... ...... ......................1
Section 1.01. Definitions. ....................................................................................................... 1
ARTICLE II. .................................................................................................................................... ....4
Section 2.01. Representations and Covenants of Lessee. ......................................................4
Section 2.02. Representations and Covenants of Lessor. ...................................................... 7
ARTICLE III. ....................................................................... ...... ...... ...... ...... ...... ............ ...... ................7
Section 3. OJ. Lease of Equipment. .........................................................................................7
Section 3.02. Continuation of the Lease Term. ......................................................................7
Section 3.03. Nonappropriation. ............................................................................................ 7
Section 3.04. Substitution. ...................................................................................................... 8
Section 3.05. Conditions to Lessor's Performance Under Any Lease. ..................................8
ARTICLE IV........... ......................... ............ ......... ......... .......... ........ ...... ............ ...... ......... .............. .....9
Section 4.01. Rental Payments. ..............................................................................................9
Section 4.02. Interest and Principal Components.................................................................. 9
Section 4.03. Rental Payments to Constitute a Current Expense of Lessee......................... 10
Section 4.04. Rental Payments to be Unconditional. ...........................................................10
Section 4.05. Tax Covenants. ...............................................................................................10
Section 4.06. Event of Taxability. ........................................................................................11
Section 4.07. Mandatory Prepayment. .................................................................................11
ARTICLE V. ......................................................................................................................................11
Section 5.01. Delivery, Installation and Acceptance of Equipment..................................... 11
Section 5.02. Enjoyment of Equipment. ...............................................................................11
Section 5.03. Location and Inspection of the Equipment. ....................................................12
Section 5.04. Use and Maintenance of the Equipment......................................................... 12
ARTICLE VI. .............. ...... ......... ........................ ......... ...... ......... ....... ......... ........... ......... ...... ....... .......13
Section 6.01. Title to the Equipment. ...................................................................................13
Section 6.02. Personal Property. .........................................................................................13
ARTICLE VII. ...................................................................................................................................13
Section 7. 01.
Section 7. 02.
Section 7.03.
Section 7.04.
JACK_1477474.1
Liens, Taxes, Other Governmental Charges and Utility Charges. ................13
Insurance. ... ..... .... ..... ...... ......... ... ...... ......... ...... ...... ...... ...... ...... ...... ...... ...... ..... 14
Risk of Loss. ............................. ......... ...... ....... ........ ....... ...... .............. ...... ........14
Advances. ...... ............ .................. ......... ...................... ..... ........ ....... ...... ........... 14
-11-
ARTICLE VIII. .................................................................................................................................. I 5
Section 8.01. Damage, Destruction and Condemnation. ..................................................... 15
Section 8.02. Insufficiency of Net Proceeds. ........................................................................15
ARTICLE IX............... ......... ..... ............. ..................... ......... ....... .............. ....... ........ ...... ...... ............ ..16
Section 9.01. Disclaimer of Warranties. ..............................................................................16
Section 9.02. Vendor's Warranties. .....................................................................................16
ARTICLE X. ..... ............. .............................. ......... ......... .................. ...... ...... ...... ............. ...... ............. 16
Section 10.01. Purchase Option. ............................................................................................16
ARTICLE XI. .....................................................................................................................................17
Section 11.01. Assignment by Lessor. ....................................................................................17
Section 11.02. Assignment and Subleasing by Lessee. ..........................................................17
ARTICLE XII. ...................................................................................................................................17
Section 12.01. Events of Default Defined. .............................................................................17
Section 12.02. Remedies on Default. ......................................................................................18
Section 12.03. No Remedy Exclusive. ....................................................................................19
Section 12.04. Application of Moneys. ................................................................................... 19
ARTICLE XIII. ................. ......... ......... .............. ................... ...... ....... ..... .................................... ........ 20
Section 13.01. No Fees Paid by Lessor..................................................................................20
Section 13.02. Notices. ...........................................................................................................20
Section 13.03. Binding Effect. ................................................................................................20
Section 13.04. Severability. ....................................................................................................20
Section 13.05. Amendments, Changes and Modifications. ....................................................20
Section 13.06. Execution in Counterparts. ............................................................................20
Section 13.07. Applicable Law...............................................................................................20
Section 13.08. Captions. ........................................................................................................20
EXHIB ITS
Exhibit A --
Exhibit B --
Exhibit C --
Exhibit D --
Exhibit E --
Form of Schedule of Property and Rental Payment Schedule
Form of Acceptance Certificate
Form of Clerk Certificate
Form of Opinion of Counsel to Lessee
Form of Notice and Acknowledgement of Assignment
JACK_14774741
-iii-
Master Equipment Lease/Purchase Agreement
This Master Equipment LeaseIPurchase Agreement (this "Agreement") dated as of
January _' 2009, and entered into between BANC OF AMERICA PUBLIC CAPITAL CORP, a
Kansas Corporation ("Lessor"), and the ST. LUCIE COUNTY, a political subdivision existing
under the laws of the State of Florida ("Lessee").
WITNESSETH:
WHEREAS, Lessee desires to lease and acquire from Lessor certain equipment described in
each Schedule (as each such tenn is defined herein), subject to the tenns and conditions of and for
the purposes set forth in each Lease; and in the event of a conflict with the tenns ofthis Agreement
the tenns ofa Schedule prevail; and
WHEREAS, the relationship between the parties shall be a continuing one and items of
equipment may be added to the Equipment from time to time by execution of additional Schedules
by the parties hereto and as otherwise provided herein; and
WHEREAS, Lessee is authorized under the constitution and laws of the State to enter into
this Agreement and the Schedules hereto for the purposes set forth herein;
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the premises hereinafter contained, the parties hereby agree
as follows:
ARTICLE I.
Section 1.01. Definitions. The following tenns will have the meanings indicated below
unless the context clearly requires otherwise:
"Acquisition Amount" means the amount specified in each Lease and represented by Lessee
to be sufficient to acquire the Equipment listed in such Lease.
"Acquisition Fund" means, with respect to any Lease, the fund established and held by the
Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement, if any.
"Acquisition Fund Agreement" means, with respect to any Lease, an Acquisition Fund
Agreement in fonn and substance acceptable to and executed by Lessee, Lessor and the Acquisition
Fund Custodian, pursuant to which an Acquisition Fund is established and administered.
"Acquisition Fund Custodian" means the acquisition fund custodian or depository bank of
Lessee identified in any Acquisition Fund Agreement, and its successors and assigns.
"Acquisition Period' means, with respect to each Lease, that period stated in the Schedule to
such Lease, during which the Lease Proceeds attributable to such Lease may be expended on
Equipment Costs.
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"Act" means, collectively, Chapter 125, Florida Statutes, the Constitution of the State, and
other applicable provisions of law.
"Agreement" means this Master Equipment Lease/Purchase Agreement, including the
exhibits hereto, together with any amendments and modifications to the Agreement pursuant to
Section 13.05.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a Section
of the Code herein shall be deemed to include the United States Treasury Regulations proposed or
in effect thereunder.
"Commencement Date" means, for each Lease, the date when Lessee's obligation to pay
Rental Payments commences under such Lease, which date shall be the earlier of (i) the date on
which the Equipment listed in such Lease is accepted by Lessee in the manner described in Section
5.01, or (ii) the date on which sufficient moneys to purchase the Equipment listed in such Lease are
deposited for that purpose with an Acquisition Fund Custodian.
"Contract Rate" means the rate identified as such in the applicable Schedule.
"Equipment" means the property listed in each of the Leases and all replacements, repairs,
restorations, modifications and improvements thereof or thereto made pursuant to Section 8.01 or
Article V. Whenever reference is made in this Agreement to Equipment listed in a Lease, such
reference shall be deemed to include all such replacements, repairs, restorations, modifications and
improvements of or to such Equipment.
"Equipment Costs" means, to the extent permitted by the Act, the total cost of the
Equipment listed in each Lease, including soft costs such as freight, installation and taxes paid up
front by Lessor and all capitalizable consulting and training fees approved by Lessor, legal fees,
financing costs, motor vehicle registration fees, recording and filing fees, and other costs necessary
to vest full, clear legal title to the Equipment in Lessee and to place the same in operation, and
otherwise incurred in connection with the financing provided by the lease-purchase of the
Equipment as provided in each Lease; provided that (i) any such soft costs on a cumulative basis
shall not exceed a percentage of the Maximum Equipment Cost approved by Lessor, and (ii) in no
event shall capitalizable delivery charges, installation charges, taxes and similar capitalizable "soft
costs" relating to such Equipment exceed 20% of the total cost of such Equipment as determined by
Lessor.
"Expense Fund' means, with respect to any Lease, the fund established and held by the
Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement.
"Event of Default" means an Event of Default described in Section 12.01.
"Lease" means a Schedule and the terms of this Agreement which are incorporated by
reference into such Schedule. Each Schedule with the incorporated terms of this Agreement shall
constitute a separate and independent Lease.
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"Lease Proceeds" means, with respect to each Lease, the total amount of money to be paid
by Lessor to the Acquisition Fund Custodian for deposit and application in accordance with such
Lease and the Acquisition Fund Agreement, or if there is no Acquisition Fund Agreement, the
amounts paid to Lessee to finance Equipment Costs.
"Lease Term" for each Lease means the Original Term and all Renewal Terms therein
provided and for this Agreement means the period from the date hereof until this Agreement is
terminated.
"Lessee" means the entity referred to as Lessee in the first paragraph of this Agreement.
"Lessor" means (a) the entity referred to as Lessor in the first paragraph of this Agreement
or (b) any assignee or transferee of any right, title or interest of Lessor in and to the Equipment
under a Lease or any Lease (including Rental Payments thereunder) pursuant to Section 11.01, but
does not include any entity solely by reason of that entity retaining or assuming any obligation of
Lessor to perform under a Lease.
"Material Adverse Change" means (a) prior to the Utilization Period Expiration, a
downgrade in Lessee's external debt rating for general obligation indebtedness of the Lessee of two
or more sub grades by either Moody's Investors Service, Inc. or Standard & Poor's Ratings Group or
any equivalent successor credit rating agency, or any downgrade by either such agency that would
cause Lessee's credit rating to be below investment grade, and (b) thereafter, any change in
Lessee's creditworthiness that could have a material adverse effect on (i) the financial condition or
operations of Lessee, or (ii) Lessee's ability to perform its obligations under this Agreement or any
Lease.
"Maximum Equipment Cost" means the cumulative amount specified in the latest Schedule
executed under this Agreement.
"Original Term" means the period from the Commencement Date for each Lease until the
end of the fiscal year of Lessee in effect at such Commencement Date.
"Purchase Price" means, with respect to the Equipment listed on a Lease, the amount that
Lessee may pay to Lessor to purchase such Equipment as provided in such Lease.
"Renewal Terms" means the renewal terms of each Lease, each having a duration of one
year and a term coextensive with Lessee's fiscal year, as specified in the Schedule applicable
thereto.
"Rental Payments" means the basic rental payments payable by Lessee under each Lease
pursuant to Section 4.01, in each case consisting of a principal component and an interest
component.
"Schedule" means each separately numbered Schedule of Property substantially in the form
of Exhibit A hereto together with a Rental Payment Schedule attached thereto substantially in the
form of Exhibit A-I hereto.
"State" means the State of Florida.
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JACK_14774741
"Utilization Period Expiration" means the date with respect to each Lease not funded under
an Acquisition Fund Agreement, by which Lessee must deliver an Acceptance Certificate for the
Equipment under such Lease as indicated in Section 5.0I(a).
"Vendor" means the manufacturer or supplier of the Equipment or any other person as well
as the agents or dealers of the manufacturer or supplier from whom Lessor arranged the acquisition
and financing of the Equipment pursuant to the applicable Lease.
ARTICLE 11.
Section 2.01. Representations and Covenants of Lessee. This Section 2.01 sets forth facts
and estimates upon which Lessor and its counsel may rely regarding the exclusion of the interest
portion of the Rental Payments from the gross income of Lessor, and the facts and estimates upon
which Lessee bases its reasonable expectation that the obligation to make Rental Payments pursuant
to the Leases does not create an arbitrage bond under Section 148 of the Internal Revenue Code of
1986, as amended, and applicable Treasury Regulations.
Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof and as
of the Commencement Date of each Lease as follows:
(a) Lessee is a state or a political subdivision thereof within the meaning of
Section 103( c) of the Code, duly organized and existing under the constitution and laws of
the State, including the Act, with full power and authority to enter into this Agreement and
each Lease and the transactions contemplated hereby, and to perform all of its obligations
hereunder and under each Lease.
(b) Lessee has duly authorized the execution and delivery of this Agreement and
each Lease by proper action of its governing body at a meeting duly called, regularly
convened and attended throughout by the requisite quorum of the members thereof, or by
other appropriate official approval, and all requirements have been met and procedures have
occurred in order to ensure the validity and enforceability of this Agreement and each Lease.
(c) No event or condition that constitutes, or with the giving of notice or the
lapse of time or both would constitute, an Event of Default exists at the date hereof. Lessee
is not in default under any indenture, mortgage, deed of trust, bank loan, credit agreement or
other instrument to which Lessee is a party.
(d) The entering into and performance of each Lease by Lessee will not violate
any judgment, order, or regulation applicable to Lessee, and except as otherwise expressly
provided in this Agreement, result in the creation of any lien, charge, security interest, or
other encumbrance upon any assets of Lessee pursuant to any indenture, mortgage, deed of
trust, bank loans, credit agreement or other instrument to which Lessee is a party or by
which it or its assets may be bound.
(e) There are no actions, suits or proceedings pending or, to the knowledge of
Lessee, threatened against or affecting Lessee in any court or before any governmental
commission, board or authority, which, if adversely determined, will have a material adverse
effect on the ability on Lessee to perform its obligations under this Agreement or any Lease.
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(f) Lessee has complied and will comply with Section 218.38, Florida Statutes, with
respect to each Lease.
(g) The interest rate for the interest portion of the Rental Payments, on the first date
interest begins to accrue, does not exceed a rate of interest permitted by Section 215.84,
Florida Statutes.
(h) Lessee will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence as a political subdivision within the meaning of Section
103(c) of the Code.
(i) Lessee has complied and will comply with such open meeting laws and
public bidding requirements as may be applicable to this Agreement and each Lease and the
acquisition by Lessee of the Equipment as provided in each Lease or, in the case of public
bidding requirements, has otherwise complied and will comply with Section 218.385(1),
Florida Statutes, in connection with each Lease.
G) During the Lease Term, the Equipment will be used by Lessee only for the
purpose of performing essential governmental or proprietary functions of Lessee permitted
under the Act. Lessee does not intend to sell or otherwise dispose of the Equipment or any
interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to
be paid under each Lease.
(k) Lessee has kept and throughout the Lease Term shall keep its books and
records in accordance with generally accepted accounting principles and practices
consistently applied, and shall deliver to Lessor (i) annual audited financial statements
(including a balance sheet, statement of revenues, expenses and changes in fund balances
for budget and actual, statement of cash flows and notes, and schedules and attachments to
the financial statements) within 270 days of its fiscal year end, (ii) such other financial
statements and information as Lessor may reasonably request, and (iv) its annual budget for
the following fiscal year when approved but not later than 30 days prior to its current fiscal
year end. Such statements in clause (i) above shall be accompanied by an unqualified
opinion of Lessee's auditor. Credit information relating to Lessee may be disseminated
among Lessor and any of its affiliates and any of their respective successors and assigns.
(I) Lessee has an immediate need for the Equipment listed on each Schedule and
expects to make immediate use ofthe Equipment listed on each Schedule. Lessee's need for
the Equipment is not temporary and Lessee does not expect the need for any item of the
Equipment to diminish during the Lease Term of such item. The use of the Equipment is
essential to Lessee's proper efficient and economic operation.
(m) The original proceeds of each Lease, and the interest to be earned thereon, do
not and will not exceed the amount necessary for the purpose for which such Lease is
executed.
(n) No sinking fund is expected to be created by Lessee with respect to any
Lease or the Rental Payments.
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(0) No other governmental obligations of Lessee are being issued at substantially
the same time and sold pursuant to a common plan of financing which will be paid out of (or
have substantially the same claim to be paid out of) substantially the same source of funds as
each Lease.
(p) No portion of the amounts received pursuant to each Lease will be used as a
substitute for other funds which were otherwise to be used as a source of financing for any
portion of the costs of Equipment and which have been and will be used to acquire, directly
or indirectly, obligations producing a yield in excess of the yield on each Lease.
(q) In connection with the execution and delivery of each Lease, no action has or
will be taken which attempts to circumvent the provisions of Section 148 of the Code and
the regulations promulgated thereunder by (i) enabling Lessee to exploit the difference
between tax-exempt and taxable interest rates to gain a material financial advantage and (ii)
over burdening the tax-exempt bond market.
(r) Lessee will not directly or indirectly use or permit the use of any proceeds of
a Lease, or take or omit to take any action, that would cause the Rental Payments to be
"federally guaranteed" within the meaning of Section 149(b) of the Code.
(s) Lessee will submit to the Secretary of the Treasury information reporting
statements and other information related to each Lease at the times and in the forms required
by the Code.
(t) To the best of the knowledge and belief of Lessee, the expectations of Lessee,
as set forth in this Section 2.0 I, are reasonable, and there are no present facts, estimates and
circumstances which would change the expectations contained therein.
(u) There is no pending litigation, tax claim, proceeding or dispute that may
materially adversely affect Lessee's financial condition or impairs its ability to perform its
obligations hereunder. Lessee will, at its expense, maintain its legal existence in good
standing and do any further act and execute, acknowledge, deliver, file, register and record
any further documents Lessor may reasonably request in order to protect Lessor's rights and
benefits under this Lease.
(v) The payment of the Rental Payments or any portion thereof is not (under the
terms of any Lease or any underlying arrangement) directly or indirectly (I) secured by any
interest in property used or to be used in any activity carried on by any person other than a
state or local governmental unit or payments in respect of such property; or (2) on a present
value basis, derived from payments (whether or not to Lessee) in respect of property, or
borrowed money, used or to be used in any activity carried on by any person other than a
state or local governmental unit. The Equipment will not be used, directly or indirectly, in
any activity carried on by any person other than a state or local governmental unit. No
portion of the Equipment Costs for the Equipment will be used, directly or indirectly, to
make or finance loans to any person other than Lessee. Lessee has not entered into any
management or other service contract with respect to the use and operation of the
Equipment.
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(w) Lessee has reviewed and will review Internal Revenue Service Form 8038-0
to be filed in connection with the execution and delivery of each Lease, and all of the
information contained therein is, and will be, to the best of Lessee's knowledge, true and
correct, and Lessee will cause such Form 8038-0 to be filed not later than 30 days after the
execution and delivery of each Lease.
Section 2.02. Representations and Covenants of Lessor. Lessor represents, covenants and
warrants for the benefit of Lessee on the date hereof and as of the Commencement Date of each
Lease that it has and will comply with Section 218.385(2) and Section 218.385(3), Florida Statutes,
with respect to each Lease.
ARTICLE Ill.
Section 3.01. Lease of Equipment. Subject to the terms of this Master Lease, Lessor agrees
to provide the funds specified as the "Acquisition Amount" in each Lease to acquire the Equipment.
Upon the execution of each Lease, Lessor demises, leases, transfers and lets to Lessee, and Lessee
acquires, rents and leases from Lessor, the Equipment as set forth in such Lease and in accordance
with the terms thereof. The latest date for any funding under this Agreement is the Funding
Expiration Date.
Section 3.02. Continuation of the Lease Term. The Lease Term for each Lease may be
continued, solely at the option of Lessee, at the end of the Original Term or any Renewal Term for
the next succeeding Renewal Term up to the maximum Lease Term set forth in such Lease. At the
end of the Original Term and at the end of each Renewal Term until the maximum Lease Term has
been completed, Lessee shall be deemed to have exercised its option to continue each Lease for the
next Renewal Term unless Lessee terminates such Lease pursuant to Section 3.03 or Section 10.01.
The terms and conditions during any Renewal Term shall be the same as the terms and conditions
during the Original Term, except that the Rental Payments shall be as provided in the applicable
Lease.
Lessee intends, subject to Section 3.03, to continue the Lease Term of each Lease through
the Original Term and all Renewal Terms and to pay the Rental Payments thereunder. Lessee
affirms that sufficient funds are available for the current fiscal year, and Lessee reasonably believes
that an amount sufficient to make all Rental Payments during the entire Lease Term of each Lease
can be obtained from legally available funds of Lessee. Subject to Section 3.03, Lessee further
intends to do all things lawfully within its power to obtain and maintain funds sufficient and
available to discharge its obligation to make Rental Payments due hereunder, including making
provision for such payments to the extent necessary in each budget or appropriation request
submitted and adopted in accordance with applicable provisions of law.
Section 3.03. Nonappropriation. Lessee is obligated only to pay such Rental Payments
under each Lease as may lawfully be made from funds budgeted and appropriated for that purpose
during Lessee's then current fiscal year. Should Lessee fail to budget, appropriate or otherwise
make available funds to pay Rental Payments under any Lease following the then current Original
Term or Renewal Term, such Lease or Leases shall be deemed terminated at the end of the then
current Original Term or Renewal Term. Lessee agrees to deliver notice to Lessor of such
termination promptly after any decision to non-appropriate is made, but failure to give such notice
shall not extend the term beyond such Original Term or Renewal Term. If any Lease is terminated
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in accordance with this Section, Lessee agrees to peaceably deliver the Equipment to Lessor at the
location(s) to be specified by Lessor or purchase the Equipment pursuant to Section 10.01 (a).
In the event Lessee agrees to peaceably deliver the Equipment to Lessor as set forth above,
Lessor shall use its best efforts to sell or lease such Equipment or, for the account of Lessee,
sublease such Equipment. If Lessee returns the Equipment and Lessor sells, leases or otherwise
disposes of any or all of the Equipment, Lessor shall apply the proceeds of such sale, lease or other
disposition as described in Section 12.04. Lessee shall not be liable for any deficiency after sale,
lease or other disposition of the Equipment.
Section 3.04. Substitution. Lessee reserves the right to substitute Equipment of the same
quantity and general type with the approximate equal value, utility and remaining useful life as the
Equipment so replaced. Such substitution is subject to Lessor's prior written consent, which
consent shall not be unreasonably withheld, and shall be reflected in an amendment to the
appropriate Schedule.
Section 3.05. Conditions to Lessor's Performance Under Any Lease.
(a) As a prerequisite to the performance by Lessor of any of its obligations pursuant
to any Lease, Lessee shall deliver to Lessor the following:
(i) A fully completed Schedule, executed by Lessee;
(ii) An Acquisition Fund Agreement, executed by Lessee and the
Acquisition Fund Custodian, unless Lessor pays 100% of the Acquisition Amount
directly to the Vendor (or to Lessee in reimbursement for payments to the Vendor)
upon execution of the Lease;
(iii) A Certificate executed by the Clerk or Secretary or other comparable
officer of Lessee, in substantially the form attached hereto as Exhibit C, completed to
the satisfaction of Lessor;
(iv) A certified copy of a resolution or other official action of Lessee's
governing body authorizing the execution and delivery of the Lease and performance
by Lessee of its obligations thereunder; and if a Lease provides for reimbursement of
Lessee for amounts paid to a Vendor prior to the execution and delivery of the Lease,
a certified copy of a reimbursement resolution of Lessee;
(v) An opinion of counsel to Lessee in substantially the form attached
hereto as Exhibit D respecting such Lease and otherwise satisfactory to Lessor;
(vi) Evidence of insurance as required by Section 7.02 hereof;
(vii) All other closing documents reasonably required by Lessor, including
certificates, notices and similar instruments, in form satisfactory to Lessor;
(viii) A copy of a fully completed and executed Form 8038-G;
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(ix) If any Equipment units are motor vehicles, properly completed
certificates of title for such vehicles; and
(x) Such other items, if any, as are set forth In such Lease or are
reasonably required by Lessor.
(b) In addition, the entering into by Lessor of any Lease shall be subject to (i) no
Material Adverse Change in the financial condition of Lessee since the date of this
Agreement, (ii) no Event of Default having occurred and (iii) if no Acquisition Fund has
been established, the Equipment must be accepted by Lessee no later than the date listed as
the Utilization Period Expiration in the applicable Schedule.
(c) This Agreement is not a commitment by Lessor to enter into any Lease not
currently in existence, and nothing in this Agreement shall be construed to impose any
obligation upon Lessor to enter into any proposed Lease, it being understood that whether
Lessor enters into any proposed Lease shall be a decision solely within Lessor's discretion.
(d) Subject to satisfaction of the foregoing, Lessor will pay the Acquisition Amount
for Equipment described in a Schedule to the Vendor (or to reimburse Lessee for payments
to the Vendor), as applicable, upon receipt of the documents described in Section 5.01; or if
an Acquisition Fund has been established pursuant to an Acquisition Fund Agreement,
Lessor will deposit the Acquisition Amount for Equipment described in the Schedule with
the Acquisition Fund Custodian.
(e) Lessee will cooperate with Lessor in Lessor's review of any proposed Lease.
Without limiting the foregoing, Lessee will provide Lessor with any documentation or
information Lessor may request in connection with Lessor's review of any proposed Lease.
Such documentation may include, without limitation, documentation concerning the
Equipment and its contemplated use and location and documentation or information
concerning the financial status of Lessee and other matters related to Lessee.
ARTICLE IV.
Section 4.01. Rental Payments.
(a) Subject to Section 3.03, Lessee shall promptly pay Rental Payments, in lawful
money of the United States of America, to Lessor on the dates and in such amounts as
provided in each Lease. Lessee shall pay Lessor a charge on any Rental Payment not paid
on the date such payment is due at a rate equal to the Contract Rate plus 5% per annum or
the maximum amount permitted by law, whichever is less, from such date. Rental Payments
consist of principal and interest payments as more fully detailed on each Schedule, the
interest on which begins to accrue as of the Commencement Date for each such Schedule.
(b) The interest component of Rental Payments shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
Section 4.02. Interest and Principal Components. A portion of each Rental Payment is
paid as, and represents payment of, interest, and the balance of each Rental Payment is paid as, and
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represents payment of, principal. Each Lease shall set forth the principal and interest components
of each Rental Payment payable thereunder during the Lease Term.
Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. Lessor and
Lessee understand and intend that the obligation of Lessee to pay Rental Payments under each
Lease shall constitute a current expense of Lessee payable solely from its general fund or other
funds that are legally available for that purpose and shall not in any way be construed to be a debt of
Lessee in contravention of any applicable constitutional or statutory limitation or requirement
concerning the creation of indebtedness by Lessee. THE RENTAL PAYMENTS ARE TO BE
MADE ONLY FROM LESSEE'S LEGALLY AVAILABLE REVENUES APPROPRIATED ON
AN ANNUAL BASIS, AND NEITHER LESSEE, THE ST ATE, NOR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF SHALL BE OBLIGATED TO PAY ANY SUMS DUE
UNDER A LEASE FROM THE COMPELLED LEVY OF AD VALOREM OR OTHER TAXES
EXCEPT FROM THOSE LEGALLY A V AILABLE REVENUES APPROPRIATED BY LESSEE
ON AN ANNUAL BASIS, AND NEITHER THE FULL FAITH AND CREDIT NOR THE
TAXING POWER OF LESSEE, THE STATE OF FLORIDA OR ANY POLITICAL
SUBDIVISION THEREOF ARE PLEDGED FOR PAYMENT OF SUCH SUMS DUE UNDER A
LEASE.
Section 4.04. Rental Payments to be Unconditional. Except as provided in Section 3.02
and Section 3.03, the obligations of Lessee to make Rental Payments and to perform and observe
the other covenants and agreements contained in each Lease shall be absolute and unconditional in
all events without abatement, diminution, deduction, set-off or defense, for any reason, including
without limitation any failure of the Equipment, after it has been accepted by Lessee, any defects,
malfunctions, breakdowns or infirmities in the equipment or any accident, condemnation or
unforeseen circumstances.
Section 4.05. Tax Covenants. (a) Lessee agrees that it will not take any action that would
cause the interest component of Rental Payments to be or to become ineligible for the exclusion
from gross income of the owner or owners thereof for federal income tax purposes, and will not fail
to take in a timely manner any action necessary to maintain the exclusion of the interest component
of the Rental Payments from gross income of the owner or owners thereof for federal income tax
purposes, including, without limitation, the calculation and payment of any rebate required to
preserve such exclusion. Subject to Lessee's right to terminate the Lease as provided herein, the
foregoing covenant shall remain in effect until the date on which all obligations of Lessee in
fulfilling the above covenant under the Code have been met.
(b) In the event that Lessee does not spend the moneys in the Acquisition Fund within six
(6) months of the date the deposit is made pursuant to Section 3.04(c), Lessee will, if required by
section 148(f) of the Code to pay rebate: (i) establish a Rebate Account and deposit the Rebate
Amount (as defined in Section 1.148-3(b) of the Federal Income Tax Regulations) not less
frequently than once per year after the applicable Commencement Date; and (ii) rebate to the United
States, not less frequently than once every five (5) years after the applicable Commencement Date,
an amount equal to at least 90% of the Rebate Amount and within 60 days after payment of all
Rental Payments or the Purchase Price as provided in Section 10.01(a) hereof, 100% of the Rental
Payments or the Purchase Price and shall maintain such determination, together with any supporting
documentation required to calculate the Rebate Amount, until six (6) years after the date of the final
payment of the Rental Payments or the Purchase Price.
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Section 4.06. Event of Taxability. Upon the occurrence of an Event of Taxability, the
interest component shall be at the Taxable Rate, as defined in the Rental Payment Schedule,
retroactive to the date as of which the interest component is determined by the Internal Revenue
Service to be includible in the gross income of the owner or owners thereof for federal income tax
purposes, and Lessee will pay such additional amount as will result in the owner receiving the
interest component at the Taxable Rate. Lessee will also pay any penalties and interest charged to
Lessor by the Internal Revenue Service in connection with an Event of Taxability.
For purposes of this section, "Event of Taxability" means (i) a final determination of the
Internal Revenue Service or other agency or entity having lawful jurisdiction over the matter, after
any and all applicable appeals rights within such agency have been exhausted or after Lessee
chooses not to appeal such determination, or (ii) a determination by a court having lawful
jurisdiction over the matter, which determination is not subject to appeal or which Lessor in its sole
discretion chooses not to appeal, that the interest component is includible for federal income tax
purposes in the gross income of the owner thereof due to Lessee's action or failure to take any
action..
Section 4.07. Mandatory Prepayment. If the Lease Proceeds are deposited into an
Acquisition Fund, any funds remaining in the Acquisition Fund on or after the Acquisition Period
and not applied to Equipment Costs, shall be applied by Lessor on the next Rental Payment date,
pro rata to the prepayment of the principal component of the outstanding Rental Payments due
under the applicable Schedule.
ARTICLE V.
Section 5.01. Delivery, Installation and Acceptance of Equipment.
(a) Lessee shall order the Equipment, cause the Equipment to be delivered and
installed at the location specified in the Leases, and pay any and all delivery and installation
costs and other Equipment Costs in connection therewith. When the Equipment listed in any
Lease has been delivered and installed, Lessee shall promptly accept such Equipment and
evidence said acceptance by executing and delivering to Lessor an Acceptance Certificate in
the form attached hereto as Exhibit B.
(b) Lessee shall deliver to Lessor original invoices and bills of sale furnished by the
Vendor (if title to such Equipment has passed to Lessee) relating to each item of Equipment
accepted by Lessee. With respect to Equipment not purchased through an Acquisition Fund,
Lessor shall, upon receipt of an Acceptance Certificate from Lessee, prepare a Schedule of
Property and Rental Payment Schedule in the forms attached hereto as Exhibit A and
Exhibit A-I, respectively. Lessee shall execute and deliver such Schedules to Lessor within
5 business days of receipt.
Section 5.02. Enjoyment of Equipment. Lessor shall provide Lessee with quiet use and
enjoyment of the Equipment during the Lease Term, and Lessee shall peaceably and quietly have,
hold and enjoy the Equipment during the Lease Term, without suit, trouble or hindrance from
Lessor, except as otherwise expressly set forth in the related Lease. Lessor shall not interfere with
such quiet use and enjoyment during the Lease Term so long as Lessee is not in default under the
related Lease.
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Section 5.03. Location and Inspection of the Equipment. Once installed, Lessee will not
move any item of the Equipment from the location specified for it in the Lease on which such item
is listed without Lessor's consent, which consent shall not be unreasonably withheld. Lessor shall
have the right at all reasonable times during regular business hours to enter into and upon the
property of Lessee for the purpose of inspecting the Equipment. Lessee shall promptly provide any
information about the Equipment or a Lease that may be reasonably requested by Lessor.
Section 5.04. Use and Maintenance of the Equipment. Lessee will not install, use, operate,
or maintain the Equipment improperly, carelessly, in violation of any applicable law or in a manner
contrary to that contemplated by the related Lease. Lessee shall provide all permits and licenses, if
any, necessary for the installation and operation of the Equipment. In addition, Lessee agrees to
comply in all respects with all applicable laws, regulations and rulings of any legislative, executive,
administrative, or judicial body; provided that Lessee may contest in good faith the validity or
application of any such law, regulation or ruling in any reasonable manner that does not, in the
opinion of Lessor, adversely affect the interest (including the reversionary interest) of Lessor in and
to the Equipment or its interest or rights under the Lease.
Lessee agrees that it will maintain, preserve, and keep the Equipment in good repair and
working order, in a condition comparable to that recommended by the manufacturer. Lessor shall
have no responsibility to maintain, repair or make improvements or additions to the Equipment. In
all cases, Lessee agrees to pay any costs necessary for the manufacturer to re-certify the Equipment
as eligible for manufacturer's maintenance upon the return of the Equipment to Lessor as provided
for herein.
Lessee shall not alter any item of Equipment or install any accessory, equipment or device
on an item of Equipment if that would impair any applicable warranty, the originally intended
function or the value of that Equipment. All repairs, parts, accessories, equipment and devices
furnished, affixed to or installed on any Equipment, excluding temporary replacements, shall
thereupon become subject to the Lease.
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ARTICLE VI.
Section 6.01. Title to the Equipment. During each Lease Term, and so long as Lessee is not
in default under Article XII hereof and no event of non-appropriation has occurred under Section
3.03 hereof, all right, title and interest in and to each item of the Equipment shall be vested in
Lessee immediately upon its acceptance of each item of Equipment, subject to the terms and
conditions of the applicable Lease and to the rights of the Lessor in and to the Equipment pursuant
to Section 3.03 and Article XII hereof. Lessee shall at all times protect and defend, at its own cost
and expense, its title in and to the Equipment from and against all claims, liens and legal processes
of its creditors, and keep all Equipment free and clear of all such claims, liens and processes. Upon
the occurrence of an Event of Default or upon termination of a Lease pursuant to Section 3.03
hereof, unless Lessee has elected not to return the Equipment and to purchase it pursuant to Section
1O.01(a), full and unencumbered legal title to the Equipment shall be vested in the Lessor and the
Lessee shall have no further interest therein (except to the extent provided in Section 3.03, Section
12.02( c) and Section 12.04) and the Lessee shall take all action necessary to evidence the vesting of
title in the Lessor within 10 days of such occurrence or termination. In addition, upon the
occurrence of such an Event of Default or such termination, Lessee shall execute and deliver to
Lessor such documents as Lessor may request to evidence the vesting of such legal title in the
Lessor and the termination of Lessee's interest therein, and upon request by Lessor shall deliver
possession of the Equipment to Lessor in accordance with Section 3.03 or Section 12.02, as the case
may be. Upon purchase of the Equipment under a Lease by Lessee pursuant to Section 10.01,
Lessor's interest in the Equipment shall terminate, and Lessor shall execute and deliver to Lessee
such documents as Lessee may request to evidence the termination of Lessor's interest in
Equipment subject to the related Lease.
Subject to Section 3.03 and the last sentence of Section 12.02(d), and only to the extent of
unpaid Rental Payments payable by Lessee pursuant to a Lease (and other amounts payable by
Lessee under such Lease) through the end of the then current Original Term or Renewal Term,
Lessor shall have an interest in the Equipment; provided, however, Lessor shall have only the
remedies described in Section 12.02 and shall not have a general foreclosure right that entitles
Lessor to a deficiency judgment or to retain Lessee's equity in the Equipment, if any.
Section 6.02. Personal Property. The Equipment is and will remain personal property and
will not be deemed to be affixed to or a part of the real estate on which it may be situated,
notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner
physically affixed or attached to real estate or any building thereon. Upon the request of Lessor,
Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from any party
having an interest in any such real estate or building.
ARTICLE VII.
Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges. Lessee
shall keep the Equipment free of all levies, liens, and encumbrances except those created by each
Lease. The parties to this Agreement contemplate that the Equipment will be used for a
governmental, municipal or public purpose or function of Lessee and that the Equipment will
therefore be exempt from all property taxes. Ifthe use, possession or acquisition of any Equipment
is nevertheless determined to be subject to taxation, Lessee shall pay when due all taxes and
governmental charges lawfully assessed or levied against or with respect to such Equipment.
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Lessee shall pay all utility and other charges incurred in the use and maintenance of the Equipment.
Lessee shall pay such taxes or charges as the same may become due; provided that, with respect to
any such taxes or charges that may lawfully be paid in installments over a period of years, Lessee
shall be obligated to pay only such installments as accrue during each Lease Term. In the event that
the installation of any component of any item of Equipment could be deemed to require a
performance and payment bond under Section 255.05, Florida Statutes, or be deemed subject to the
mechanic's lien provisions of Chapter 713, Florida Statutes, or any successor statute to each, as they
may be amended from time to time, Lessee shall require such bonds, post such notices and do all
other things provided for under such laws in order to keep the Equipment free of and exempt from
all liens.
Section 7.02. Insurance. Lessee shall during each Lease Term maintain or cause to be
maintained (a) casualty insurance (with such deductibles as Lessor may approve) naming Lessor
and its assigns as additional insured and loss payee and insuring the Equipment against loss or
damage by fire and all other risks covered by the standard extended coverage endorsement then in
use in the State, and any other risks reasonably required by Lessor, in an amount at least equal to the
then applicable Purchase Price of the Equipment; (b) liability insurance that protects Lessor from
liability in all events in form and amount satisfactory to Lessor; and (c) worker's compensation
coverage as required by the laws of the State; provided that, with Lessor's prior written consent,
Lessee may self-insure against the risks described in clauses (a) and (b), to the extent permitted by
State law. Lessee shall furnish to Lessor evidence of such insurance or self-insurance coverage
throughout each Lease Term. Lessee shall not cancel or modify such insurance or self-insurance
coverage in any way that would affect the interests of Lessor without first giving written notice
thereof to Lessor at least 30 days in advance of such cancellation or modification.
Section 7.03. Risk of Loss. Whether or not covered by insurance or self-insurance, Lessee
hereby assumes all risk of loss of, or damage to and liability related to injury or damage to any
persons or property arising from the Equipment from any cause whatsoever, and no such loss of or
damage to or liability arising from the Equipment shall relieve Lessee of the obligation to make the
Rental Payments or to perform any other obligation under this Lease. Whether or not covered by
insurance or self-insurance, Lessee hereby agrees to reimburse Lessor (to the fullest extent
permitted by applicable law, but only from legally available funds) for any and all liabilities,
obligations, losses, costs, claims, taxes or damages suffered or incurred by Lessor, regardless of the
cause thereof and all expenses incurred in connection therewith (including, without limitation,
counsel fees and expenses, and penalties connected therewith imposed on interest received) arising
out of or as a result of (a) entering into of this Agreement or any of the transactions contemplated
hereby, (b) the ordering, acquisition, ownership use, operation, condition, purchase, delivery,
acceptance, rejection, storage or return of any item the Equipment, (c) any accident in connection
with the operation, use, condition, possession, storage or return of any item of the Equipment
resulting in damage to property or injury to or death to any person, and/or (d) the breach of any
covenant of Lessee in connection with a Lease or any material misrepresentation provided by
Lessee in connection with a Lease. The provisions ofthis paragraph shall continue in full force and
effect notwithstanding the full payment of all obligations under all Leases or the termination of the
Lease Term under any Lease for any reason.
Section 7.04. Advances. In the event Lessee shall fail to keep the Equipment in good repair
and working order, Lessor may, but shall be under no obligation to, maintain and repair the
Equipment and pay the cost thereof. All amounts so advanced by Lessor shall constitute additional
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rent for the then current Original Term or Renewal Term and Lessee covenants and agrees to pay
such amounts so advanced by Lessor with interest thereon from the due date until paid at a rate
equal to the Contract Rate plus 5% per annum or the maximum amount permitted by law,
whichever is less.
ARTICLE VIII.
Section 8.01. Damage, Destruction and Condemnation. Unless Lessee shall have
exercised its option to purchase the Equipment by making payment of the Purchase Price as
provided in the related Lease, if, prior to the termination of the applicable Lease Term, (a) the
Equipment or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other
casualty or (b) title to, or the temporary use of, the Equipment or any part thereof shall be taken
under the exercise or threat of the power of eminent domain by any governmental body or by any
person, firm or corporation acting pursuant to governmental authority, Lessee and Lessor will cause
the Net Proceeds of any insurance claim or condemnation award or sale under threat of
condemnation to be applied to the prompt replacement, repair, restoration, modification or
improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has
been completed shall be paid to Lessee.
If Lessee elects to replace any item of the Equipment (the "Replaced Equipment") pursuant
to this Section, the replacement equipment (the "Replacement Equipment") shall be of similar type,
utility and condition to the Replaced Equipment and shall be of equal or greater value than the
Replaced Equipment. Lessee shall represent, warrant and covenant to Lessor that each item of
Replacement Equipment is free and clear of all claims, liens, security interests and encumbrances,
excepting only those liens created by or through Lessor, and shall provide to Lessor any and all
documents as Lessor may reasonably request in connection with the replacement, including, but not
limited to, documentation in form and substance satisfactory to Lessor evidencing Lessor's interest
in the Replacement Equipment. Lessor and Lessee hereby acknowledge and agree that any
Replacement Equipment acquired pursuant to this paragraph shall constitute "Equipment" for
purposes of this Agreement and the related Lease. Lessee shall complete the documentation of
Replacement Equipment on or before the next Rental Payment date after the occurrence of a
casualty event, or be required to exercise the Purchase Option with respect to the damaged
equipment.
For purposes of this Article, the term "Net Proceeds" shall mean the amount remaining from
the gross proceeds of any insurance claim or condemnation award or sale under threat of
condemnation after deducting all expenses, including attorneys' fees, incurred in the collection
thereof.
Section 8.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in
full the cost of any replacement, repair, restoration, modification or improvement referred to in
Section 8.01, Lessee shall either (a) complete such replacement, repair, restoration, modification or
improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or (b) payor
cause to be paid to Lessor the amount of the then applicable Purchase Price for the Equipment, and,
upon such payment, the applicable Lease Term shall terminate and Lessor's interest in the
Equipment shall terminate as provided in Article VI hereof. The amount of the Net Proceeds, if
any, remaining after completing such repair, restoration, modification or improvement or after
purchasing such Equipment and such other Equipment shall be retained by Lessee. If Lessee shall
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make any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement
therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under
Article IV.
ARTICLE IX.
Section 9.01. Disclaimer of Warranties. Lessor makes no warranty or representation,
either express or implied, as to the value, design, condition, merchantability or fitness for particular
purpose or fitness for use of the Equipment, or any other warranty or representation, express or
implied, with respect thereto and, as to Lessor, Lessee's acquisition of the Equipment shall be on an
"as is" basis. In no event shall Lessor be liable for any incidental, indirect, special or consequential
damage in connection with or arising out of this Agreement, any Lease, the Equipment or the
existence, furnishing, functioning or Lessee's use of any item, product or service provided for in
this Agreement or any Lease.
Section 9.02. Vendor 's Warranties. Lessor hereby irrevocably appoints Lessee its agent
and attorney-in-fact during each Lease Term, so long as Lessee shall not be in default under the
related Lease, to assert from time to time whatever claims and rights (including without limitation
warranties) relating to the Equipment that Lessor may have against Vendor. Lessee's sole remedy
for the breach of such warranty, indemnification or representation shall be against Vendor of the
Equipment, and not against Lessor. Any such matter shall not have any effect whatsoever on the
rights and obligations of Lessor with respect to any Lease, including the right to receive full and
timely payments under a Lease. Lessee expressly acknowledges that Lessor makes, and has made,
no representations or warranties whatsoever as to the existence or the availability of such warranties
by Lessor of the Equipment.
ARTICLE X.
Section 10.01. Purchase Option. Lessee shall have the option to purchase all of the
Equipment listed in a Lease, upon giving written notice to Lessor at least 30, but not more than 120,
days before the date of purchase, at the following times and upon the following terms:
(a) From and after the date specified in the related Schedule (the "Purchase
Option Commencement Date"), on the Rental Payment dates specified in each Lease, upon
payment in full of the Rental Payments then due under such Lease plus the then applicable
Purchase Price, and any prepayment premium on the unpaid balance as set forth in the
applicable Schedule; or
(b) In the event of substantial damage to or destruction or condemnation of
substantially all of the Equipment listed in a Lease, on the day specified in Lessee's notice to
Lessor of its exercise of the Purchase Option upon payment in full to Lessor of the Rental
Payments then due under such Lease plus the then applicable Purchase Price.
(c) Upon payment in full of all Rental Payments then due and all other amounts
then owing under the Lease, and the payment of $1.00 to Lessor.
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ARTICLE XI.
Section 11.01. Assignment by Lessor. (a) Lessor's right, title and interest in and to Rental
Payments and any other amounts payable by Lessee under any and all of the Leases, and all
proceeds therefrom may be assigned and reassigned in whole or in part to one or more assignees or
subassignees by Lessor, without the necessity of obtaining the consent of Lessee; provided,
however, that any such assignment, transfer or conveyance to a trustee for the benefit of owners of
certificates of participation shall be made in a manner that conforms to any applicable State and
Federal law. Nothing in this Section 11.01 shall be construed, however, to prevent Lessor from
executing any such assignment, transfer or conveyance that does not involve funding through the
use of certificates of participation within the meaning of applicable State law, including any such
assignment, transfer or conveyance as part of a multiple asset pool to a partnership or trust, interests
in which are offered and sold in a private placement or limited offering only to investors whom
Lessor reasonably believes are qualified institutional buyers or accredited investors within the
meaning of the applicable federal securities law; provided further, however, that in any event,
Lessee shall not be required to make Rental Payments, to send notices or to otherwise deal with
respect to matters arising under a Lease with or to more than one individual or entity.
(b) No assignment, transfer or conveyance permitted by this Section 11.01 shall be effective
until Lessee shall have received a written notice of assignment that discloses the name and address
of each such assignee; provided, however, that if such assignment is made to a bank or trust
company as trustee or paying agent for owners of certificates of participation, trust certificates or
partnership interests with respect to the Rental Payments payable under a Lease, it shall thereafter
be sufficient that Lessee receives notice of the name and address of the bank or trust company as
trustee or paying agent. During the term of each Lease, Lessee shall keep, or cause to be kept, a
complete and accurate record of all such assignments in form necessary to comply with Section 149
of the Code. Lessee shall retain all such notices as a register of all assignees and shall make all
payments to the assignee or assignees designated in such register. Lessee shall not have the right to
and shall not assert against any assignee any claim, counterclaim or other right Lessee may have
against Lessor or the Vendor. Assignments in part may include without limitation assignment of all
of Lessor's rights in, to and under the Lease related to the Equipment listed in a particular Lease.
The option granted in this Section may be separately exercised from time to time with respect to the
Equipment listed in each Lease, but such option does not permit the assignment of less than all of
Lessor's interests in the Equipment listed in a single Lease.
(c) If Lessor notifies Lessee of its intent to assign the Lease, Lessee agrees that it shall
execute and deliver to Lessor a Notice and Acknowledgement of Assignment substantially in the
form attached hereto as Exhibit E within five (5) business days after its receipt of such request.
Section 11.02. Assignment and Subleasing by Lessee. None of Lessee's right, title, and
interest in, to and under any Lease or any portion of the Equipment may be assigned or encumbered
by Lessee without prior written consent of Lessor.
ARTICLE XII.
Section 12.01. Events of Default Defined. Any of the following events shall constitute an
"Event of Default" under a Lease, subject to Section 3.03:
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(a) Failure by Lessee to pay any Rental Payment or other payment required to be
paid under any Lease within 10 days of the date when due as specified herein, other than as
a result of non appropriation under Section 3.03;
(b) Failure by Lessee to observe and perform any covenant, condition or
agreement on its part to be observed or performed, other than as referred to in subparagraph
(a) above, for a period of 30 days after written notice specifying such failure and requesting
that it be remedied is given to Lessee by Lessor, unless Lessor shall agree in writing to an
extension of such time prior to its expiration; provided that, if the failure stated in the notice
cannot be corrected within the applicable period, Lessor will not unreasonably withhold its
consent to an extension of such time if corrective action is instituted by Lessee within the
applicable period and diligently pursued until the default is corrected;
(c) Any statement, representation or warranty made by Lessee in or pursuant to
any Lease or its execution, delivery or performance shall prove to have been false, incorrect,
misleading, or breached in any material respect on the date when made;
(d) Any default occurs under any other agreement for borrowing money, lease
financing of property or otherwise or receiving credit under which Lessee is an obligor
under which there is outstanding, owing or committed in aggregate amount of at least 10%
of Lessee's aggregate current long- and short-term indebtedness, if such default consists of
(i) the failure to pay any indebtedness when due or (ii) the failure to perform any other
obligation thereunder and gives the holder of the indebtedness the right to accelerate the
indebtedness;
(e) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee,
custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be
unable, fail or admit in writing its inability generally to pay its debts as they become due,
(iii) make a general assignment for the benefit of creditors, (iv) have an order for relief
entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in
bankruptcy or a petition or an answer seeking reorganization or an arrangement with
creditors or taking advantage of any insolvency law or any answer admitting the material
allegations of a petition filed against Lessee in any bankruptcy, reorganization or insolvency
proceeding;
(1) An order, judgment or decree shall be entered by any court of competent
jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator or
Lessee or of all or a substantial part of the assets of Lessee, in each case without its
application, approval or consent, and such order, judgment or decree shall continue unstayed
and in effect for any period of 30 consecutive days; or
(g) Lessee shall consolidate, merge or otherwise combine with any other entity, or
sell, lease or dispose of all or a substantial portion of its assets.
Section 12.02. Remedies on Default. Whenever any Event of Default exists, Lessor shall
have the right, at its sole option without any further demand or notice, to take one or any
combination of the following remedial steps:
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(a) Lessor may by notice in writing to Lessee terminate the Lease, whereupon all
rights of Lessee to use the Equipment shall cease and terminate;
(b) By written notice to Lessee, Lessor may demand that Lessee pay, as liquidated
damages for loss of a bargain and not as a penalty, all unpaid Rental Payments payable by
Lessee pursuant to such Lease and other amounts payable by Lessee under such Lease to the
end of the then current Original Term or Renewal Term;
(c) With or without terminating the Lease Term under such Lease, Lessor may
request that Lessee at Lessee's expense promptly return any or all of such Equipment to the
possession of Lessor at such place within the United States as Lessor shall specify. In such
event, Lessor shall use its best efforts to sell or lease such Equipment or, for the account of
Lessee, sublease such Equipment. If Lessee returns the Equipment and Lessor sells, leases
or otherwise disposes of any or all of the Equipment, Lessor shall apply the proceeds of such
sale, lease or other disposition as described in Section 12.04. Lessee shall not be liable for
any deficiency after sale, lease or other disposition of the Equipment. If Lessee elects not to
return the Equipment, Lessor is entitled to payment of unpaid Rental Payments through the
date of Lessor's request to return the Equipment plus the then applicable Purchase Price, as
set forth in the applicable Schedule for such Equipment. The exercise of any such remedies
respecting any such Event of Default shall not relieve Lessee of any other liabilities under
any other Lease or the Equipment listed therein; and
(d) Subject to the next sentence, Lessor may take whatever action at law or in equity
may appear necessary or desirable to enforce its rights under such Lease. The parties to this
Agreement acknowledge that: (i) this Agreement is not intended to create a mortgage of or a
security interest in the Equipment as proscribed by Nohrr v. Brevard County Educational
Facilities Authority, 247 So. 2d 304 (Fla. 1971), and (ii) Lessor may not exercise any
foreclosure-type remedies if an Event of Default occurs, State v. Brevard County, 539 So.
2d 461 (Fla. 1989), notwithstanding any provisions to the contrary in this Agreement.
Section 12.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to
Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in
addition to every other remedy given under a Lease now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right or power may be
exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to
exercise any remedy reserved to it in this Article it shall not be necessary to give any notice other
than such notice as may be required in this Article.
Section 12.04. Application of Moneys. Any net proceeds from the exercise of any remedy
upon an occurrence of an Event of Default, nonappropriation by Lessee pursuant to Section 3.03
hereof or as may be otherwise provided for under this Agreement shall be applied in the following
order of priority: FIRST, to pay all of Lessor's costs, charges and expenses incurred in taking,
holding, repairing, selling, leasing or otherwise disposing of 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, then THIRD, to pay the Purchase Price applicable as of the end of the
then current Original Term or Renewal Term, as set forth in the Schedule for such Equipment, then
FOURTH to pay any remainder to Lessee; provided that if such remedy is exercised with respect to
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more than one Lease, Equipment listed in more than one Lease or rights under more than one Lease,
then to amounts due pursuant to such application of moneys pro rata among the Leases or
Equipment, as the case may be.
ARTICLE XIII.
Section 13.01. No Fees Paid by Lessor. Lessor hereby certifies that it has not paid or has
not promised to pay, directly or indirectly, a fee to any person not regularly employed by Lessor to
act as an intermediary between Lessee and Lessor for the purpose of influencing any transaction in
connection with this Agreement or any Lease.
Section 13.02. Notices. All notices, certificates or other communications under any Lease
shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail,
postage prepaid, or delivered by overnight courier, or sent by facsimile transmission (with
electronic confirmation) to the parties hereto at the addresses immediately after the signatures to
this Agreement (or at such other address as either party hereto shall designate in writing to the other
for notices to such party) and to any assignee at its address as it appears on the registration books
maintained by Lessee.
Section 13.03. Binding Effect. Each Lease shall inure to the benefit of and shall be binding
upon Lessor and Lessee and their respective successors and assigns.
Section 13.04. Severability. In the event any provision of 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. Any provisions in this Lease which are in conflict with
any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
Section 13.05. Amendments, Changes and Modifications. Each Lease may only be amended
by Lessor and Lessee in writing.
Section 13.06. Execution in Counterparts. Each Lease may be simultaneously executed in
several counterparts, each of which shall be an original and all of which shall constitute but one and
the same instrument.
Section 13.07. Applicable Law. Each Lease shall be governed by and construed In
accordance with the laws of the State.
Section 13.08. Captions. The captions or headings in this Agreement and in each Lease are
for convenience only and in no way define, limit or describe the scope or intent of any provisions or
sections of this Agreement or any Lease.
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IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in
their names by their duly authorized representatives as of the date first above written.
Lessor:
BANC OF AMERICA PUBLIC CAPITAL
CORP
Attn: Government Leasing Contract
Administration
Mail Code: CA5-704-04-01
555 California Street, 4th Floor
San Francisco, California 94104
By:
Title:
JACK_1477474.1
Lessee:
ST. LUCIE COUNTY, FLORIDA
2300 Virginia Avenue
Fort Pierce, Florida 34982
By:
Title:
(Seal)
Attest:
By:
Title:
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EXHIBIT A
Schedule of Property No.
Re: Master Equipment Lease/Purchase Agreement, dated as of January _,
2009, between Banc of America Public Capital Corp, a Kansas corporation,
as Lessor, and St. Lucie County, Florida, as Lessee.
I. Defined Terms. All terms used herein have the meanings ascribed to them in the
above-referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment Lease").
2. Equipment. The following items of Equipment are hereby included under this
Schedule of the Master Equipment Lease.
Quantity
Description
Serial No.
Model No.
Location
3. Payment Schedule.
Rental Payments. The Rental Payments shall be in such amounts and payable on
such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-I.
The obligation of Lessee to pay Rental Payments shall commence on the date on which the
Equipment listed in this Schedule is accepted by Lessee, as indicated in an Acceptance Certificate
substantially in the form of Exhibit B to the Master Equipment Lease or the date on which sufficient
moneys to purchase the Equipment are deposited for that purpose with an Acquisition Fund
Custodian, whichever is earlier.
Purchase Price Schedule. The Purchase Price on each Rental Payment date for the
Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date in the
"Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The Purchase
Price is in addition to all Rental Payments then due under this Schedule (including the Rental
Payment shown on the same line in the Rental Payment Schedule).
4. Representations. Warranties and Covenants. Lessee hereby represents, warrants and
covenants that its representations, warranties and covenants set forth in the Master Equipment Lease
are true and correct as though made on the date of commencement of Rental Payments on this
Schedule. Lessee further represents and warrants that (a) no Material Adverse Change in Lessee's
financial condition has occurred since the date of the Master Equipment Lease; (b) the governing
body of Lessee has authorized the execution and delivery of this Agreement and the Leases
pursuant to Resolution No. , approved on January 27, 2009; (c) the Equipment
described in the Agreement referenced above is essential to the functions of Lessee or to the
services Lessee provides its citizens; (d) lessee has an immediate need for, and expects to make
immediate use of, substantially all such Equipment, which will be used by Lessee only for the
purpose of performing one or more of Lessee's governmental or proprietary functions consistent
with the permissible scope of its authority; and (f) Lessee expects and anticipates adequate funds to
be available for all future payments or rent due after the current budgetary period.
A-I
JACK_1477474.1
5. The Lease. The terms and provisions of the Master Equipment Lease (other than to
the extent that they relate solely to other Schedules or Equipment listed on other Schedules) are
hereby incorporated into this Schedule by reference and made a part hereof.
6. Lease Proceeds. The Lease Proceeds which Lessor shall pay to the Acquisition Fund
Custodian in connection with this Schedule is $ , of which $ is for
deposit to the Expense Fund and the balance is for deposit to the Acquisition Fund. It is expected
that by [six (6)] [twelve (12)] [eighteen (18)] months from the date of this Schedule No.
, Lessee will have taken possession of all items of Equipment shown above and that a
Lessee's Acceptance Certificate, or Acceptance Certificates, will be signed by Lessee and delivered
to Lessor on or before [six (6)] [twelve (12)] [eighteen (18)] months from the date of this
Schedule No.
7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end at
the conclusion of the _ month following the date hereof.
8. Lease Term. The Lease Term shall consist of the Original Term and
consecutive Renewal Terms, with the final Renewal Term ending on
9. Purchase Option Commencement Date. For purposes of Section 10.01 of the Lease,
the Purchase Option Commencement Date is
Lessee shall be responsible for the correct titling of all Equipment leased hereunder. Lessee
will cause the original Certificates of Title to be delivered to Lessor for retention in Lessor's files
throughout the term of the Lease.
Dated:
Lessor:
Lessee:
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982
By:
[Name/Title]
By:
[Name/Title]
(Seal)
Attest:
By:
[Name/Title]
A-2
JACK_1477474.1
Exhibit A-I
Rental Payment Schedule
Rental Payment
Date
( )
Rental Payment
Amount
Interest Portion
Principal
Portion
Purchase Price[*]
[*The Purchase Option Commencement Date shall be
. [Describe terms of prepayment.]
Premium]
Date of Purchase
For purposes of this Lease, "Taxable Rate," with respect to the interest component of Rental
Payments, means an annual rate of interest equal to _ %.
Lessee:
ST. LUCIE COUNTY, FLORIDA
By:
Title:
After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
A-3
JACK_1477474.1
EXHIBIT B
Acceptance Certificate
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Re: Schedule of Property No. , dated , to
Master Equipment Lease/Purchase Agreement, dated as of January
_, 2009, between Banc of America Public Capital Corp, as Lessor,
and St. Lucie County, Florida, as Lessee.
Ladies and Gentlemen:
In accordance with the Master Equipment LeaselPurchase Agreement (the "Agreement"),
the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows:
1. All of the Equipment (as such term is defined in the Agreement) listed in the above-
referenced Schedule of Property (the "Schedule") has been delivered, installed and accepted on the
date hereof.
2. Lessee has conducted such inspection and/or testing of the Equipment listed in the
Schedule as it deems necessary and appropriate and hereby acknowledges that it accepts the
Equipment for all purposes.
3. Lessee is currently maintaining the insurance coverage required by Section 7.02 of
the Agreement.
4. No event or condition that constitutes, or with notice or lapse of time, or both, would
constitute, an Event of Default (as defined in the Agreement) exists at the date hereof.
Date:
Lessee
ST. LUCIE COUNTY, FLORIDA
[Seal]
By:
[Name/Title]
B-1
JACK_1477474.1
EXHIBIT C
Clerk Certificate
The undersigned, a duly elected and acting Clerk of the Board of County
Commissioners of St. Lucie County, Florida, (the "Lessee") certifies as follows:
A. The following listed persons are duly elected and acting officials of Lessee (the
"Officials") in the capacity set forth opposite their respective names below and the signatures set
opposite thereto are the genuine signatures of such persons;
Signature
Name of Official
Title
B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and deliver
the Master Equipment Lease/Purchase Agreement dated as of January _,2009 and the Schedule(s)
thereunder and all future Schedule(s), each by and between the Lessee and Banc of America Banc
of America Public Capital Corp, as Lessor and the Acquisition Fund Agreement dated as of January
_, 2009, among Lessor, Lessee and Bank of America, N.A., as Acquisition Fund Custodian
(collectively, the "Agreements") and these Agreements are binding and authorized Agreements of
Lessee, enforceable in all respects in accordance with their terms.
Dated: January _, 2009
By:
Title: Clerk of the Board of County
Commissioners of St. Lucie County, Florida
(The signer of this Certificate cannot be listed above as authorized to execute the
Agreements.)
C-I
JACK_1477474.1
EXHIBIT D
Opinion of Counsel to Lessee
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Re: Schedule of Property No. , dated , 20_, to Master
Equipment Lease/Purchase Agreement, dated as of January _, 2009 between
Banc of America Public Capital Corp, as Lessor, and the St. Lucie County,
Florida, as Lessee
Ladies and Gentlemen:
As counsel to St. Lucie County, Florida (the "Lessee"), I have examined (a) an executed
counterpart of a certain Master Equipment LeaselPurchase Agreement, dated as of January ~
2009, and Exhibits thereto by and between Banc of America Public Capital Corp (the "Lessor") and
the Lessee (the "Agreement") and an executed counterpart of Schedule of Property No. _,
dated ,20_, by and between Lessor and Lessee (the "Schedule"), which, among
other things, provides for the lease of certain property listed in the Schedule (the "Equipment"), (b)
the Acquisition Fund Agreement dated as of , 20_ by and among the Lessor, the
Lessee and Bank of America N.A., as the Acquisition Fund Institution (the "Acquisition Fund
Agreement"), (c) a copy of the Resolution No. adopted by the Board of County
Commissioners of the Lessee on January 27, 2009, which, among other things, authorized Lessee to
execute the Agreement and the Schedule (the "Resolution") and (d) such other opinions, documents
and matters of law as I have deemed necessary in connection with the following opinions. The
Schedule and the terms and provisions of the Agreement incorporated therein by reference together
with the Rental Payment Schedule attached to the Schedule are herein referred to collectively as the
"Lease." All capitalized terms not defined herein shall have the meanings ascribed thereto in the
Lease.
Based on the foregoing, I am of the following opinions:
I. Lessee was duly created and is validly existing as a public body corporate and
politic, duly organized under the laws of the State, and is a political subdivision of a state within the
meaning of Section I 03( c) of the Internal Revenue Code of 1986, as amended (the "Code"), and the
obligations of Lessee under the Agreement will constitute an obligation of Lessee within the
meaning of Section 103(a) of the Code, notwithstanding Section I03(b) of the Code];
2. Lessee has full legal right, power and authority to adopt the Resolution, to lease and
acquire the Equipment, to execute and deliver the Lease and the Acquisition Fund Agreement and
to perform its obligations under the Lease and the Acquisition Fund Agreement;
3. The execution and delivery of the Lease and the Acquisition Fund Agreement by the
Lessee has been duly authorized and the Lease and the Acquisition Fund Agreement have been duly
executed and delivered by the Lessee;
D-I
JACK_1477474.1
4. The Acquisition Fund Agreement has been duly authorized, approved, executed and
delivered by and on behalf of the Lessee and is a valid and binding obligation of the Lessee
enforceable in accordance with its terms, except to the extent that enforceability of the rights and
remedies set forth therein may be limited by bankruptcy, insolvency or other laws affecting
creditors' rights generally, and subject, as to enforceability, to general principles of equity regardless
of whether enforcement is sought in a proceeding in equity or at law;
5. The authorization, approval, execution and delivery of the Lease and all other
proceedings of Lessee relating to the transactions contemplated thereby have been performed in
accordance with all open meeting laws, public bidding laws and all other applicable state or federal
laws; and
6. There is no proceeding pending or threatened in any court or before any
governmental authority or arbitration board or tribunal that, if adversely determined, would
adversely affect the transactions contemplated by the Lease and the Acquisition Fund Agreement or
the interest of Lessor or its assigns, as the case may be, in the Equipment under the Lease.
Lessor and its successors and assigns, and any counsel rendering an opinion on the tax-
exempt status of the interest components of the Rental Payments, are entitled to rely on this opinion.
Respectfully submitted,
County Attorney
D-2
JACK_1477474.1
EXHIBIT E
Form of Notice and Acknowledgement of Assignment
Dated
BANC OF AMERICA PUBLIC CAPITAL CORP, a Kansas corporation
("Assignor") hereby gives notice that it has assigned and sold to r 1
("Assignee") all of Assignor's right, title and interest in, to and under [Schedule of Property] No.
r 1, dated r 1 (the "Lease ") to the Master Equipment Lease/Purchase
Agreement ("Equipment Lease ") dated as of January _, 2009, between Assignor and St. Lucie
County, Florida ("Lessee ").
For purposes of this Notice and Acknowledgment of Assignment (the "Acknowledgment "),
"Lease" means collectively the Lease identified above, together with all exhibits, schedules,
addenda and attachments related thereto, and all certifications and other documents delivered in
connection therewith. The term "Lease" specifically excludes all other [Schedules of Property]
entered into under the Equipment Lease and rental payments other than with respect to the
[Schedule of Property] identified above. Each capitalized term used but not defined herein has the
meaning set forth in the Equipment Lease described above.
I. Pursuant to the authority of Resolution adopted on
, Lessee hereby [consents to and] acknowledges the effect of the
assignment of the Lease and absolutely and unconditionally agrees to deliver to Assignee all rental
payments and other amounts coming due under the Lease in accordance with the terms thereof on
and after the date of this Acknowledgment.
2. Lessee hereby agrees that: (i) Assignee shall have all the rights of Lessor under the
Lease and all related documents, including, but not limited to, the rights to issue or receive all
notices and reports, to give all consents or agreements to modifications thereto, to receive title to the
equipment in accordance with the terms of the Lease, to declare a default and to exercise all
remedies thereunder; and (ii) except as provided in Section 3.03 of the Lease, the obligations of
Lessee to make rental payments and to perform and observe the other covenants and agreements
contained in the Lease shall be absolute and unconditional in all events without abatement,
diminution, deduction, set-off or defense.
3. Lessee agrees that, as of the date of this Acknowledgment, the following information
about the Lease is true, accurate and complete:
Number of Rental Payments Remaining -
Amount of Each Rental Payment $
Total Amount of Rents Remaining $
Frequency of Rental Payments
Next Rental Payment Due
Funds Remaining in Escrow Fund $
E-I
JACK_1477474.1
4. The Lease remains in full force and effect, has not been amended and no
nonappropriation or event of default (or event which with the passage of time or the giving of notice
or both would constitute a default) has occurred thereunder.
5. Any inquiries of Lessee related to the Lease and any requests for escrow
disbursements, if applicable, and all rental payments and other amounts coming due pursuant to the
Lease on and after the date of this Acknowledgment should be remitted to Assignee at the following
address (or such other address as provided to Lessee in writing from time to time by Assignee):
ACKNOWLEDGED AND AGREED:
LESSEE: ST. LUCIE COUNTY, FLORIDA
[FOR EXHIBIT PURPOSES ONLY]
By:
Name:
Title:
ASSIGNOR: BANC OF AMERICA PUBLIC CAPITAL CORP
[FOR EXHIBIT PURPOSES ONLY]
By:
Name:
Title:
E-2
JACK_1477474.1
Schedule of Property No. I
Re: Master Equipment Lease/Purchase Agreement, dated as of January _,
2009, between Banc of America Public Capital Corp, a Kansas
corporation, as Lessor, and St. Lucie County, Florida, as Lessee.
I. Defined Terms. All terms used herein have the meanings ascribed to them
in the above-referenced Master Equipment LeaselPurchase Agreement (the "Master Equipment
Lease").
2. Equipment. The following items of Equipment are hereby included under
this Schedule of the Master Equipment Lease: 58 Laptops with DVD, 46 Docking Stations, 42
High-End Desktops, 267 Standard Desktops with FDD, 146 Standard Desktops with FDD and 45
EOC Small Form Factors (all of which shall be more fully identified at such time the Lessee
submits and Acquisition Fund Requisition to the Acquisition Fund Custodian in accordance with
the Acquisition Fund Agreement).
3. Payment Schedule.
Rental Payments. The Rental Payments shall be in such amounts and payable on
such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-I.
The obligation of Lessee to pay Rental Payments shall commence on the date on which the
Equipment listed in this Schedule is accepted by Lessee, as indicated in an Acceptance
Certificate substantially in the form of Exhibit B to the Master Equipment Lease or the date on
which sufficient moneys to purchase the Equipment are deposited for that purpose with an
Acquisition Fund Custodian, whichever is earlier.
Purchase Price Schedule. The Purchase Price on each Rental Payment date for
the Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date
in the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The
Purchase Price is in addition to all Rental Payments then due under this Schedule (including the
Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representations. Warranties and Covenants. Lessee hereby represents, warrants
and covenants that its representations, warranties and covenants set forth in the Master
Equipment Lease are true and correct as though made on the date of commencement of Rental
Payments on this Schedule. Lessee further represents and warrants that (a) no Material Adverse
Change in Lessee's financial condition has occurred since the date of the Master Equipment
Lease; (b) the governing body of Lessee has authorized the execution and delivery of this
Agreement and the Leases pursuant to Resolution No. , approved on January 27,
2009; (c) the Equipment described in the Agreement referenced above is essential to the
functions of Lessee or to the services Lessee provides its citizens; (d) Lessee has an immediate
need for, and expects to make immediate use of, substantially all such Equipment, which will be
used by Lessee only for the purpose of performing one or more of Lessee's governmental or
proprietary functions consistent with the permissible scope of its authority; and (e) Lessee
expects and anticipates adequate funds to be available for all future payments or rent due after
the current budgetary period.
JACK_1477521.1
5. The Lease. The terms and provisions of the Master Equipment Lease
(other than to the extent that they relate solely to other Schedules or Equipment listed on other
Schedules) are hereby incorporated into this Schedule by reference and made a part hereof.
6. Lease Proceeds. The Lease Proceeds which Lessor shall pay to the Acquisition
Fund Custodian in connection with this Schedule is $[640,000], all of which is for deposit to the
Acquisition Fund. It is expected that by eighteen (18) months from the date of this Schedule No.
I, Lessee will have taken possession of all items of Equipment shown above and that a Lessee's
Acceptance Certificate, or Acceptance Certificates, will be signed by Lessee and delivered to
Lessor on or before eighteen (18) months from the date of this Schedule No. I.
7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end
at the conclusion of the 18th month following the date hereof.
8. Lease Term. The Lease Term shall consist of the Original Term and two
consecutive Renewal Terms, with the final Renewal Term ending on January _,2012.
9. Purchase Option Commencement Date. For purposes of Section 10.01 of the
Lease, the Purchase Option Commencement Date is
Lessee shall be responsible for the correct titling of all Equipment leased hereunder.
Lessee will cause the original Certificates of Title to be delivered to Lessor for retention in
Lessor's files throughout the term of the Lease.
Dated: January _,2009.
Lessor:
Lessee:
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982
By:
[Name/Title]
By:
[Name/Title]
(Seal)
Attest:
By:
[Name/Title]
2
JACK_1477521.1
Exhibit A-I
Rental Payment Schedule
Rental Payment
Date
( )
Rental Payment
Amount
Interest Portion
Principal
Portion
Purchase Price[*]
[*The Purchase Option Commencement Date shall be
prepayment. ]
[Describe terms of
Date of Purchase
Premium]
For purposes of this Lease, "Taxable Rate," with respect to the interest component
of Rental Payments, means an annual rate of interest equal to _%.
Lessee:
ST. LUCIE COUNTY, FLORIDA
By:
Title:
After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
3
JACK_1477521.1
Schedule of Property No.2
Re: Master Equipment LeaselPurchase Agreement, dated as of January _,
2009, between Banc of America Public Capital Corp, a Kansas
corporation, as Lessor, and St. Lucie County, Florida, as Lessee.
I. Defined Terms. All terms used herein have the meanings ascribed to them
in the above-referenced Master Equipment LeaselPurchase Agreement (the "Master Equipment
Lease").
2. Equipment. The following items of Equipment are hereby included under
this Schedule of the Master Equipment Lease: 4 Remote-Firewall Servers, 7 Application Servers
and 5 EOC Servers (all of which shall be more fully identified at such time the Lessee submits
and Acquisition Fund Requisition to the Acquisition Fund Custodian in accordance with the
Acquisition Fund Agreement).
3. Payment Schedule.
Rental Payments. The Rental Payments shall be in such amounts and payable on
such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-I.
The obligation of Lessee to pay Rental Payments shall commence on the date on which the
Equipment listed in this Schedule is accepted by Lessee, as indicated in an Acceptance
Certificate substantially in the form of Exhibit B to the Master Equipment Lease or the date on
which sufficient moneys to purchase the Equipment are deposited for that purpose with an
Acquisition Fund Custodian, whichever is earlier.
Purchase Price Schedule. The Purchase Price on each Rental Payment date for
the Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date
in the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The
Purchase Price is in addition to all Rental Payments then due under this Schedule (including the
Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representations. Warranties and Covenants. Lessee hereby represents, warrants
and covenants that its representations, warranties and covenants set forth in the Master
Equipment Lease are true and correct as though made on the date of commencement of Rental
Payments on this Schedule. Lessee further represents and warrants that (a) no Material Adverse
Change in Lessee's financial condition has occurred since the date of the Master Equipment
Lease; (b) the governing body of Lessee has authorized the execution and delivery of this
Agreement and the Leases pursuant to Resolution No. , approved on January 27,
2009; (c) the Equipment described in the Agreement referenced above is essential to the
functions of Lessee or to the services Lessee provides its citizens; (d) Lessee has an immediate
need for, and expects to make immediate use of, substantially all such Equipment, which will be
used by Lessee only for the purpose of performing one or more of Lessee's governmental or
proprietary functions consistent with the permissible scope of its authority; and (e) Lessee
expects and anticipates adequate funds to be available for all future payments or rent due after
the current budgetary period.
JACK_1477523.1
5. The Lease. The terms and provisions of the Master Equipment Lease
(other than to the extent that they relate solely to other Schedules or Equipment listed on other
Schedules) are hereby incorporated into this Schedule by reference and made a part hereof.
6. Lease Proceeds. The Lease Proceeds which Lessor shall pay to the Acquisition
Fund Custodian in connection with this Schedule is $[430,000], all of which is for deposit to the
Acquisition Fund. It is expected that by eighteen (18) months from the date of this Schedule No.
2, Lessee will have taken possession of all items of Equipment shown above and that a Lessee's
Acceptance Certificate, or Acceptance Certificates, will be signed by Lessee and delivered to
Lessor on or before eighteen (18) months from the date of this Schedule No.2.
7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end
at the conclusion of the 18th month following the date hereof.
8. Lease Term. The Lease Term shall consist of the Original Term and four
consecutive Renewal Terms, with the final Renewal Term ending on January _,2014.
9. Purchase Option Commencement Date. For purposes of Section 10.01 of the
Lease, the Purchase Option Commencement Date is
Lessee shall be responsible for the correct titling of all Equipment leased hereunder.
Lessee will cause the original Certificates of Title to be delivered to Lessor for retention in
Lessor's files throughout the term of the Lease.
Dated: January _, 2009.
Lessor:
Lessee:
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982
By:
[Name/Title]
By:
[Name/Title]
(Seal)
Attest:
By:
[Name/Title]
2
JACK_1477523.1
Exhibit A-I
Rental Payment Schedule
Rental Payment
Date
( )
Rental Payment
Amount
Interest Portion
Principal
Portion
Purchase Price[*]
[*The Purchase Option Commencement Date shall be
prepayment. ]
[Describe terms of
Premium]
Date of Purchase
For purposes of this Lease, "Taxable Rate," with respect to the interest component
of Rental Payments, means an annual rate of interest equal to _%.
Lessee:
ST. LUCIE COUNTY, FLORIDA
By:
Title:
After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
3
JACK_1477523.1
ACQUISITION FUND AGREEMENT
(Florida Version)
This Acquisition Fund Agreement is dated January _, 2009, by and among
Banc of America Public Capital Corp, a Kansas Corporation (hereinafter referred to as
"Lessor"), St. Lucie County, Florida, a political subdivision existing under the laws of the State
of Florida (hereinafter referred to as "Lessee"), and Bank of America, N.A., a national banking
association (hereinafter referred to as "Acquisition Fund Custodian").
Reference is made to that certain Master Equipment LeaselPurchase Agreement
dated as of January _, 2009 between Lessor and Lessee (hereinafter referred to as the
"Lease"), covering the acquisition and lease of certain equipment described in the Schedules of
Property Nos. I and 2 thereto (the "Equipment"). It is a requirement of the Lease that the
Equipment Costs of $[1 ,070,000] be deposited into an escrow under terms satisfactory to Lessor,
for the purpose of fully funding the Lease, and providing a mechanism for the application of
such amounts to the purchase of and payment for the Equipment.
The parties agree as follows:
I. Creation of Acquisition Fund.
(a) There is hereby created a special trust fund to be known as the "St. Lucie
County Acquisition Fund," for Account No. , relating to Schedules of Property
Nos. I and 2 to the Lease (the "Acquisition Fund") to be held in trust by the Acquisition Fund
Custodian for the purposes stated herein, for the benefit of the Lessor and the Lessee, to be held,
disbursed and returned in accordance with the terms hereof.
(b) The Acquisition Fund Custodian shall invest and reinvest moneys on deposit
in the Acquisition Fund in Qualified Investments (defined below) in accordance with written
instructions received from the Lessee. The Lessee shall be solely responsible for ascertaining
that all proposed investments and reinvestments are Qualified Investments and that they comply
with federal, state and local laws, regulations and ordinances governing investment of such funds
and for providing appropriate notice to the Acquisition Fund Custodian for the reinvestment of
any maturing investment. Accordingly, neither the Acquisition Fund Custodian nor the Lessor
shall be responsible for any liability, cost, expense, loss or claim of any kind, directly or
indirectly arising out of or related to the investment or reinvestment of all or any portion of the
moneys on deposit in the Acquisition Fund, and the Lessee agrees to and does hereby release the
Acquisition Fund Custodian and the Lessor from any such liability, cost, expenses, loss or claim.
Interest on the Acquisition Fund shall become part of the Acquisition Fund, and gains and losses
on the investment of the moneys on deposit in the Acquisition Fund shall be borne by the
Acquisition Fund.
(c) For purposes of this agreement, "Qualified Investments" means any
investments which meet the requirements of Section 218.415, Florida Statutes.
JACK_14775251
(d) Unless the Acquisition Fund is earlier terminated in accordance with the
provisions of paragraph (e) below, amounts in the Acquisition Fund shall be disbursed by the
Acquisition Fund Custodian in payment of amounts described in Section 2 hereof upon receipt of
written authorization(s) from the Lessor, as is more fully described in Section 2 hereof. If the
amounts in the Acquisition Fund are insufficient to pay such amounts, the Lessee shall provide
any balance of the funds needed to complete the acquisition of the Equipment. Any moneys
remaining in the Acquisition Fund after the Acquisition Period (as defined in the Lease) shall be
applied as provided in Section 4 hereof.
(e) Each Acquisition Fund shall be terminated at the earliest of (i) the final
distribution of amounts in such Acquisition Fund, (ii) written notice given by the Lessor of the
occurrence of a default or termination of the Lease due to non-appropriation or (iii) the end of
the Acquisition Period.
(f) The Acquisition Fund Custodian may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine and may assume the
validity and accuracy of any statement or assertion contained in such a writing or instrument.
The Acquisition Fund Custodian shall not be liable in any manner for the sufficiency or
correctness as to form, manner of execution, or validity of any instrument nor as to the identity,
authority, or right of any person executing the same; and its duties hereunder shall be limited to
the receipt of such moneys, instruments or other documents received by it as the Acquisition
Fund Custodian, and for the disposition of the same in accordance herewith.
(g) Unless the Acquisition Fund Custodian is guilty of gross negligence or willful
misconduct with regard to its duties hereunder, to the extent provided by law the Lessee agrees
to and does hereby release and indemnify the Acquisition Fund Custodian and hold it harmless
from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expense, fees or charges of any character or nature, including reasonable attorneys' fees
and the cost of defending any action, suit or proceeding or resisting any claim, which it may
incur or with which it may be threatened by reason of its acting as Acquisition Fund Custodian
under this agreement. Nothing contained herein shall or is intended to act as a waiver of the
Lessee's sovereign immunity for tort liability under Section 768.28, Florida Statutes.
(h) If the Lessee and the Lessor shall be in disagreement about the interpretation
of the Lease, or about the rights and obI igations, or the propriety of any action contemplated by
the Acquisition Fund Custodian hereunder, the Acquisition Fund Custodian may, but shall not be
required to, file an appropriate civil action to resolve the disagreement. The Acquisition Fund
Custodian shall be reimbursed by the Lessee for all costs, including reasonable attorneys' fees, in
connection with such civil action, and shall be fully protected in suspending all or part of its
activities under the Lease until a final judgment in such action is received.
(i) The Acquisition Fund Custodian may consult with counsel of its own choice
and shall have full and complete authorization and protection with the opinion of such counsel.
The Acquisition Fund Custodian shall otherwise not be liable for any mistakes of fact or errors of
judgment, or for any acts or omissions of any kind unless caused by its willful misconduct.
2
JACK_1477525.1
G) The Lessee shall reimburse the Acquisition Fund Custodian for all reasonable
costs and expenses, including those of the Acquisition Fund Custodian's attorneys, agents and
employees incurred for extraordinary administration of the Acquisition Fund and the
performance of the Acquisition Fund Custodian's powers and duties hereunder in connection
with any Event of Default under the Lease, or in connection with any dispute between Lessor
and Lessee concerning the Acquisition Fund.
2. Acquisition of Property.
(a) Acquisition Contracts. The Lessee will arrange for, supervise and provide for,
or cause to be supervised and provided for, the acquisition of the Equipment set forth in the
Schedule to the Lease, with moneys available in the Acquisition Fund. The Lessee represents
the estimated costs of the Equipment are within the funds estimated to be available therefor, and
the Lessor makes no warranty or representation with respect thereto. The Lessor shall have no
liability under any of the acquisition or construction contracts. The Lessee shall obtain all
necessary permits and approvals, if any, for the acquisition, equipping and installation of the
Equipment, and the operation and maintenance thereof.
(b) Authorized Acquisition Fund Disbursements. Disbursements from the
Acquisition Fund shall be made for the purpose of paying (including the reimbursement to the
Lessee for advances from its own funds to accomplish the purposes hereinafter described) the
cost of acquiring the Equipment.
(c) Requisition Procedure. No disbursement from an Acquisition Fund shall be
made unless and until the Lessor has approved such requisition. Prior to disbursement from an
Acquisition Fund there shall be filed with the Acquisition Fund Custodian a requisition for such
payment in the form of Disbursement Request attached hereto, stating each amount to be paid,
the Acquisition Fund from which the amount is to be paid, the name of the person, firm or
corporation to whom payment thereof is due, and wire or transfer instructions. Each such
requisition shall be signed by an authorized representative of the Lessee (an "Authorized
Representative") and by Lessor. The Lessee shall also provide Lessor with an Acceptance
Certificate in the form attached as Exhibit B to the Lease, executed by Lessee, together with any
purchase agreement or bill of sale and invoice therefor as required by Section 5.0 I of the Lease;
3. Deposit to Acquisition Fund. Upon satisfaction of the conditions specified in Section
3.05 of the Lease, Lessor will cause the Lease Proceeds to be deposited in the Acquisition Fund.
The Lessee agrees to pay any costs with respect to the Equipment in excess of amounts available
therefor in the Acquisition Fund.
4. Excessive Acquisition Fund. Following the final disbursement from the Acquisition
Fund at the end of the Acquisition Period, or termination of the Acquisition Fund as otherwise
provided herein, the Acquisition Fund Custodian shall transfer any remainder from the
Acquisition Fund to the Lessor for application to amounts owed under the Lease in accordance
with Section 4.07 of the Lease.
5. Miscellaneous. Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Lease. This agreement may not be amended except in writing
3
JACK_1477525.1
signed by all parties hereto. This agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original instrument and each shall have the force and effect of
an original and all of which together constitute, and shall be deemed to constitute, one and the
same instrument. Notices hereunder shall be made in writing and shall be deemed to have been
duly given when personally delivered or when deposited in the mail, first class postage prepaid,
or delivered to an express carrier, charges prepaid, or sent by facsimile with electronic
confirmation, addressed to each party at its address below:
If to the Lessor:
If to the Lessee:
If to the Acquisition
Fund Custodian:
Banc of America Public Capital Corp
555 California Street, 4th Floor
Mail Code CA5-705-04-01
San Francisco, CA 94104
Attn: Government Leasing Contract Administration
Phone: (415) 765-7404
Fax: (415)343-0533
St. Lucie County, Florida
2300 Virginia Avenue
Fort Pierce, Florida 34982
Attn:
Phone:
Fax:
Bank of America, N.A.
[Address]
Attn:
Phone:
Fax:
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
JACK_1477525.1
4
IN WITNESS WHEREOF, the parties have executed this Acquisition Fund
Agreement as of the date first above written.
Banc of America Public Capital Corp
St. Lucie County, Florida
By:
[Name/Title]
By:
[Name/Title]
Bank of America, N.A., as Acquisition Fund
Custodian
By:
Name:
Title:
5
JACK_1477525.1
, 2009
ACQUISITION FUND REQUISITION NO. _
Pursuant to Section 2(c) of the Acquisition Fund Agreement dated January _, 2009
(the "Acquisition Fund Agreement"), by and among Banc of America Public Capital Corp ("Lessor"),
St. Lucie County, Florida ("Lessee"), and Bank of America, N.A. ("Acquisition Fund Custodian"), the
undersigned Authorized Representative of the Lessee hereby requests and authorizes the Acquisition
Fund Custodian to pay to the account listed on the Disbursement Schedule, from the moneys deposited
in Acquisition Fund No. _ (Account No. ), the aggregate sum of $ , to
pay such person(s) or to reimburse the Lessee for the expenditures made by it in connection with the
items of Equipment (as defined in the Lease) listed on the attached Disbursement Schedule.
In connection with the foregoing request and authorization, the undersigned hereby
certifies that:
(A) He or she IS an Authorized Representative under the Acquisition Fund
Agreement;
(B) An obligation in the stated amount has been incurred by the Lessee, and the
same is a proper charge against the Acquisition Fund described above for costs relating to the
Equipment identified in the Schedule relating to such Acquisition Fund, and has not been previously
paid;
(C) The Authorized Representative has no notice of any vendor's, mechanic's or
other liens or rights to liens, chattel mortgages, conditional sales contracts or security interests which
should be satisfied or discharged before such payment is made;
(D) This requisition contains no item representing payment on account, or any
retained percentages which the Lessee is, at the date of such certificate, entitled to retain;
(E) The Equipment is insured in accordance with the Lease;
(F) No Event of Default, and no event which with notice or lapse of time, or both,
would become an Event of Default under the Lease has occurred and is continuing at the date hereof;
and
(G) No material adverse change in Lessee's financial condition has occurred since
the date of the Lease.
A-I
~ACK_1477525.1
This statement and all exhibits hereto, including the Disbursement Schedule, shall be
conclusive evidence of the facts and statements set forth herein and shalI constitute full warrant,
protection and authority to the Acquisition Fund Custodian for its actions taken pursuant hereto.
Dated:
,200_.
ST. LUCIE COUNTY, FLORIDA
By:
Authorized Representative
Approved:
BANC OF AMERICA PUBLIC CAPITAL
CORP
By:
Name:
Title:
A-2
JACK_1477525.1
DISBURSEMENT SCHEDULE
Payee Name and Address
Invoice Number
Amount
Purpose
Disbursement Instructions: Amounts to be disbursed pursuant to this Disbursement Schedule shall be
transferred to:
· Account No.
Account Holder:
Financial Institution: Bank of America, N.A.
or wired to:
.
ABA Routing #:
Account No.:
Account Holder:
Financial Institution Name:
Financial Institution Address:
Financial Institution Phone:
A-3
JACK_1477525.1
Afictosalt.1 Volume Licensing
Microsoft Enterprise Enrollment - State and Local
Amendment
Amendment 10 I CTX-
Enrollment number I
Microsoft to complete
OOO-shancock-379
10 Number
Microsoft to complete
This amendment is entered into between the customer and Microsoft affiliate signing, as of the effective
date identified below. All terms used but not defined will have the same meanings as in the Microsoft
Enterprise Enrollment identified above "the enrollment." The following terms and conditions amend the
terms and conditions of the enrollment identified above, but only with respect to the customer identified
below and only for purposes of this enrollment.
1. On page 2 (two) of the enrollment, the paragraph entitled "Effective Date" is hereby amended
and restated in its entirety as follows:
Effective Date. The effective date of this enrollment is 1/1/09
2. Upon execution of this enrollment (the "replacement enrollment"), your previous enrollment
#3256919 (the "terminated enrollment") shall be terminated, with such termination taking effect
one day prior to the effective date of this replacement enrollment. The parties agree that:
a. No license confirmations shall be issued pursuant to the terminated enrollment;
b. We will cancel any payments pursuant to the terminated enrollment scheduled to be
invoiced to your reseller on or after the effective date of this replacement enrollment;
c. No credits or refunds shall be issued pursuant to payments pursuant to the terminated
enrollment invoiced (or required to be invoiced) to your reseller prior to the effective
date of this replacement enrollment; and
d. Notwithstanding anything to the contrary in the section of the Enterprise Agreement
associated herewith which provides for issuance of license confirmations in certain
instances upon early termination of an enrollment, for the purposes of determining the
number of license confirmations to be issued proportionally for this replacement
enrollment, the amount paid previously for products sold pursuant to the terminated
enrollment shall be added to the amount paid pursuant to this replacement enrollment
(as of the date this replacement enrollment is terminated early) in order to determine
the "amount that has been paid as of the termination date" with respect to such
products. In no event, however, will we issue license confirmations in numbers greater
than the actual quantity of licenses ordered hereunder.
The parties acknowledge that the reference prices hereunder take into account the following
payments for License & Software Assurance Packs made pursuant to the terminated
enrollment prior to the effective date of this replacement enrollment:
Microsoft Enterprise Enrollment v6.X SLG
(North America)(English) 12/17/08
EE Amend
CTX
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Page 1 of 5
EXHIBIT
'"
J!
D
D
3
I'D ,-
Afictosalt-I Volume Licensing
Terminated L&SA Purchases
Original
Purchase
9/30/2009
Exchan e Std CAL 850
Share Point Std CAL 850
ement CML 850
Windows CAL 850
Windows Server Standard
Listed Lan ua es 25
SQL CAL-Device Listed
Lan ua es 100
Exchange Server Enterprise
Listed Lan ua es 2
Office Share Point Server
Listed Lan ua es
Configuration Manager Server
w/SQL Listed Lan ua es
SQL Server Standard Listed
Lan ua es 5
3. The paragraph entitled "Term" is hereby amended and restated as follows:
Term. This enrollment will expire 60 full calendar months from the effective date indicated
below unless terminated earlier or renewed as provided in the Microsoft Enterprise Agreement.
Such term was requested by Robert Valentino in order to meet your budgetary requirements.
You acknowledge that you were given an option to enroll for a 36-month term, but declined.
You may terminate this enrollment for your convenience without penalty on or after the third
anniversary of this enrollment (or at any other time as permitted by applicable law) subject to
proportional licensing as set forth in Section 12(e) of the Microsoft Enterprise Agreement (Effect
of termination or expiration). We will provide you with written notice 60 days prior to expiration
of the initial enrollment or renewal term advising you of your renewal options. For a description
of renewal options, see subsection 12(f) of the Microsoft Enterprise Agreement (How to renew
an enrollment).
4. Notwithstanding anything to the contrary in this enrollment, or in the Enterprise Agreement
associated herewith, we will invoice your reseller for the 60-month cost of the enterprise
products and additional products licensed pursuant to your initial order under this enrollment in
5 unequal installment payments, the date for which shall be as follows:
a. Payment 1: invoiced upon execution of this enrollment;
b. Payment 2: invoiced on the first anniversary of the effective date;
c. Payment 3: invoiced on the second anniversary of the effective date; and
d. Payment 4: invoiced on the third anniversary of the effective date.
e. Payment 5: invoiced on the fourth anniversary of the effective date.
Microsoft Enterprise Enrollment vex SLG
(North America)(English) 12117108
EE Amend
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Page 2 of 5
Afictosalt-I Volume Licensing
The reference prices for each installment payment shall be as follows:
Reference Pllce P.yment 2 Reference Price P.yment 3
Reference Price P.yment 1 Due Upon 1.t Annlv.....ry of Due Upon 2nd Annlv.....ry of P.yment 4 Due Upon 3rd
Du. U on Sianlna Effectlv. Date Effective D.te Annlv....." of Effective D.te
Product P.rt # Qu.ntltv Unl S Extended S UnitS Extend ed S UnitS Extended S Unit S Extend.d S
Office Professional Plus Listed LiclSA Pack
MVl Platform 269-12441 850 179.90 110415.00 129.90 110415.00 14268 121278.00 142"'8 1?1 278.00
Windows Vista Business Listed UpglSA
Pack MVl Platform wNisEnternrise 66J.{l05 7 9 850 43.07 36 609.50 43.07 36609.50 47.31 40213.50 47.31 40 213.50
Core CALClient Access Lie Listed Lie/SA
Pack MVl Platform Device {'AL W06-01085 850 1749 14868.50 60.53 51450.50 32.31 27 463.50 32.31 27 463.50
Forefront See Sui Ie Listed Monthly
", 'bscri"'ion M\/I p~ De 'i~A 19SE.Q0002 850 24.21 20 578.50 2421 20578.50 24.71 70578.50 24.21 ?n 578.50
Windows Svr Std Lisled SA MVL P73.Q0225 25 82.24 2056.00 28196 7 049 .00 141.00 3525.00 141.00 3 525.00
Windows Svr Datacntr Listed LiclSA Pack 1n
M" 1 "'ex: P71.Q0882 840.94 8409.40 8An QA 8409.40 840.94 8 <1119.40 840 .94 8 409.40
SOL CAL Lisled Languages SA MVL Device
AL 359-00852 100 18.56 1 856.00 63.58 6358.00 31.65 3165.00 31.65 3 165.00
Exchange Svr Ent Listed Languages Lie/SA
Pack MVl ~"".{)2611 2 1 412.51 2 825.02 1412.51 2 825.02 1412.51 2 R'J5.02 1412.51 2825.02
Exchange Svr Ent Listed Languages SA
MVl 395.{)2612 2 45777 915.54 1 569.46 3136.96 784.74 1 569.48 784.74 1,569.48
Office Share Point Server Lisled Lie/SA
Pack MVL Hn4-00321 1 1 562.40 1582.40 1582.40 15R?.40 1 5R?4O 1 562.4n 1 582.4n 1 562.40
I Office "harePoint "erver ' isled "A MVI H04-00322 1 506.36 505.36 1736.07 1 736.07 86800 868.00 868 .00 86800
Cortie Ma Svr wlSOL Listed SA MVL 4A-00156 1 149.57 149.57 517.78 512.78 256.34 256.34 256.34 256.34
SOL Svr Standard Edln Win32 Lisled SA
MVl 228.Q4435 5 101.31 508.55 347.32 1 736.60 173.68 868.30 173.66 868.30
Ops Mg Server Listed Lie/SA Pack MVL
w/SOL UAR.Q0345 1 46166 461.66 461.66 461.66 461.66 461.66 461.66 46166
Ops Mg Ent Ops Mgmt Lie Listed Lie/SA
Pack MVl IJAS.00395 30 150.62 4518.60 150.62 4518.60 150.62 4518.60 150.62 4518.60
VStudio Pro wlMSD N Pram Listed Lie/SA
Pack MVl F1 P-00206 8 901.48 7.211.84 901.48 7211.84 901.48 7211.84 901.48 7211.84
Forfmt Clnt See Mgt Cnsl Listed Monthly 1759.?n 1 259.?n 1 259.20 1 759.20 1 259.20
"ubscrintion MVI ';'1"01 FTZ-00003 1 1 259.20 1 259.20 1259.20
Forfmt Clnt See Mgt Cnsl Listed Monthly
Subscrintion MVL FTZ -00034 1 50.02 50.02 50.02 50.02 50.02 50.02 50.02 50.02
Forefront See SvrMgtCnsl Listed Monthly 10'96
Subscriotion MVL Services 9"F-00118 2 5148 102.96 51.48 102.96 51.48 102.96 51.48
The reference prices for true up orders for enterprise products and each of the initially-ordered
additional products shall be as follows:
Enterprise Product True-Up Re rence Prices
Unit True-Up Unit True-Up Unit True-Up Unit True-Up Unit True-Up
Reference Price Reference Price Reference Price Reference Price Reference Price
Order 1, Billed Order 2, Billed Order 3, Billed Order 4. Billed Order 5. Billed
in 1 Installment in 1 Installment In 1 Installment in 1 Installment in 1 Installment
12 Months After 24 Months After 36 Months After 48 Months After 60 Months After
Effective Date Effective Date Effective Date Effective Date Effective Date
DescriDtion Part # (USD) (USD) (USD) (USD) (USD)
Office Professional Plus Listed Lie/SA
Pack MVL Platfonn 269-12441 636.40 542.28 448.17 372.82 297.49
Windows Vista Business Listed
Upg/SA Pack MVL Platfonn
wNisEnterDrise 66J-00579 208.70 171.83 134.94 105.40 75.87
Forefront Sec Suite Listed Monthly
Subscriotion MVL Per Device 9SE-00002 108.92 84.72 60.52 36.31 12.11
Core CALClient Access Lic Listed
Lie/SA Pack MVL Platfonn Device CAL W06-01065 232.46 200.15 167.84 141.99 116.12
fe
Microsoft Enterprise Enrollment v6.X SLG
(North America)(English) 12/17/08
EE Amend
CTX
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Page 3 of 5
Afictosalt.1 Volume Licensing
Additional Product True-Up Reference Prices
Unit True-Up Unit True-Up Unit True-Up Unit True-Up Unit True-Up
Reference Price Reference Price Reference Price Reference Price Reference Price
Order 1, Billed Order 2, Billed Order 3, Billed Order 4, Billed Order 5, Billed
In 1 Installment in 1 Installment In 1 Installment In 1 Installment In 1 Installment
12 Months After 24 Months After 36 Months After 48 Months After 60 Months After
Effective Date Effective Date Effective Date Effective Date Effective Date
DescrlDtion Part # (USDI (USD) (USD) (USD) (USD)
Windows Svr Std Listed Lie/SA Pack
MVL P73-00202 986.22 870.18 754.14 638.10 522.06
Windows Svr Oatacntr Listed Lie/SA
Pack MVL 1 Proc P71-00882 3,268.20 2,883.72 2,499.24 2,114.76 1,730.28
SOL GAL Listed Languages Lie/SA
Pack MVL Device GAL 359-00851 221.70 195.66 169.62 143.58 117.54
Exchange Svr Ent Listed Languages
Lie/SA Pack MVL 395-02611 5,489.52 4,843.68 4,197.84 3,552.00 2,906.16
Office Share Point Server Listed Lie/SA
Pack MVL H04-00321 6,072.06 5,357.70 4,643.34 3,928.98 3,214.62
Gonfig Mgr Svr w/SOL Listed Lie/SA
Pack MVL J4A-00161 1,793.28 1,582.32 1,371.36 1,160.40 949.44
SOL Svr Standard Edtn Win32 Listed
Lie/SA Pack MVL 228-04439 1,214.70 1,071.78 928.86 785.94 643.02
Ops Mgr Server Listed Lie/SA Pack
MVL w/SOL UAR-00345 1,794.18 1,583.10 1,372.02 1,160.94 949.86
Ops Mgr Ent Ops Mgmt Lic Listed
Lie/SA Pack MVL UAS-00395 585.36 516.48 447.60 378.72 309.84
VStudio Pro w/MSDN Prem Listed
Lie/SA Pack MVL F1 P-00206 3,367.80 2,684.28 2,000.76 1,317.24 633.72
Note that the above prices are provided for reference only. Your actual price and payment terms will be determined by
separate agreement between you and your reseller.
The reference prices for additional products that are placed pursuant to this enrollment, including true
up orders when applicable, are hereby amended in order to take into account the additional year of
Software Assurance coverage added to the term by section 4 of this amendment, as follows:
a. The reference prices of such additional product orders placed with usage dates that occur in
the first year of the term hereof shall be calculated as the sum of (i) the "3 years remaining"
(or 1st anniversary true up) L&SA reference price for each such product; plus (ii) the 2-year
Software Assurance renewal reference price;
b. The reference prices of such additional product orders placed with usage dates that occur in the
second year of the term hereof shall be calculated as the sum of (i) the "3 years remaining" (or 1 st
anniversary true up) L&SA reference price for each such product; plus (ii) the 1-year Software
Assurance renewal reference price;
c. The reference prices of such additional product orders placed with usage dates that occur in the
third year of the term hereof shall be the "3 years remaining" (or 1 st anniversary true up) L&SA
reference price for each such product;
d. The reference prices of such additional product orders placed with usage dates that occur in the
fourth year of the term hereof shall be the "2 years remaining" (or 2nd anniversary true up) L&SA
reference price for each such product; and
Microsoft Enterprise Enrollment vex SLG
(North America)(English) 12/17/OS
EE Amend
GTX
SO
Page 4 of 5
Afictosalt' I Volume Licensing
e. The reference prices of such additional product orders placed with usage dates that occur in the
fifth year of the term hereof shall be the "1 year remaining" (or 3rd anniversary true up) L&SA
reference price for each such product;
Except for changes made by this amendment, all terms of this enrollment remain unchanged. By signing
below, the parties agree to be bound by the terms of this amendment.
Customer I Contracting Microsoft Affiliate
Name of Entity.
St Lucie County BOCC Microsoft Licensing, GP
Signature · Signature
Printed Name. Printed Name
Printed Title. Printed Title
Signature Date. Signature Date
(date Microsoft affiliate countersigns)
Effective Date
· indicates required field (may be different than our signature date)
Please sign this amendment and send it with your enrollment to your reseller. Your reseller must submit it to the following
address. When the amendment is fully signed, you will receive a confirming copy.
Microsoft Licensing, GP
Dept. 551, Volume Licensing
6100 Neil Road, Suite 210
Reno, Nevada USA 89511-1137
Prepared By: Steve Hancock Licensing
S ecialist on behalf of David Mills
Microsoft Enterprise Enrollment v6.X SLG
(North America)(English) 12/17108
EE Amend
CTX
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Page 5 of 5
Afictosolt I Volume Licensing
Enterprise Enrollment (indirect) State and Local
Framework ID
Microsoft Business Agreement
number (if applicable)
Reseller or Microsoft affiliate to
complete
U0275474
Reseller purchase order
number
Reseller to complete
Enterprise Agreement number
Reseller or Microsoft affiliate to
complete
Enrollment number
Microsoft affiliate to complete
01
Previous Qualifying Enrollment
number
Reseller to complete
3256919
Previous Qualifying
Enrollment end date
Reseller to complete
o
This Microsoft Enterprise Enrollment is entered into between the following entities signing, as of the
effective date identified below.
Definitions. When used in this enrollment, "you" refers to the entity that signs this enrollment with us,
and "we" or "us" refers to the Microsoft entity that signs this enrollment.
"Qualifying Enrollment," means (i) an enterprise enrollment under a separate Microsoft Select Master
Agreement or Microsoft Enterprise Agreement; (ii) any enterprise subscription enrollment entered into
under a separate Microsoft Enterprise Subscription Agreement; or (iii) any other enrollment submitted
under the Microsoft Enterprise Agreement identified on the cover page.
All other definitions in the Microsoft Enterprise Agreement identified above apply here.
Effective date. If you are renewing Software Assurance from one or more previous "Qualifying
Enrollments" then the effective date will be the day after the first Enrollment expires.
Otherwise the effective date will be the date this enrollment is signed by us. Where a previous Qualifying
Enrollment is being used, your reseller will require that enrollment number and end date to complete the
applicable boxes above.
Term. This enrollment will expire 36 full calendar months from the effective date. It could be terminated
earlier or renewed as provided in the Microsoft Enterprise Agreement. We will advise you of your renewal
options before it expires.
Representations and warranties. By signing this enrollment, the parties agree to be bound by the
terms of this enrollment, and you represent and warrant that: (i) you have read and understand the
Microsoft Business Agreement identified above (if any) and the Microsoft Enterprise Agreement, including
all documents it incorporates by reference and any amendments to those documents, and agree to be
bound by those terms; and (ii) you are either the entity that signed the Microsoft Enterprise Agreement or
its affiliate.
Non-exclusivity. This enrollment is non-exclusive. Nothing contained in it requires you to license, use or
promote Microsoft software or services exclusively. You may, if you choose, enter into agreements with
other parties to license, use or promote non-Microsoft software or services.
SLG Microsoft Enterprise 6.4 Enrollment
(Indirect)(North America) June 2006
Cover page
N36
Page 1 of 11
This enrollment consists of (1) this cover page, (2) the Contact Information Page(s), (3) the Enterprise
order information, (4) the Reseller Information Form, (5) the product order as provided to us by the
reseller (6) the Media Order Form, and (7) the Core User CAL Terms and Conditions (if applicable).
Customer
Name of entity *
St. Lucie County BOCC Microsoft Licensing, GP
Signature * Signature
Printed name * Printed name
Printed title * Printed title
Signature date * Signature date
(date Microsoft affiliate countersigns)
Effective date
* indicates required fields (may be different than our signature date)
Microsoft Volume Licensing web sites
INote ^c \.1111 advl~e you of any char,ges to these URLs I
Product use rights http://microsoft.com/licensinq
Product List http://microsoft.com!licensinQ
Microsoft Volume Licensing Services (MVLS) https:!!licensinq.microsoft.com!
(oassword protected site to view orders under this enrollment)
Customer guide http://microsoft.com/licensinq/proQrams/
Notices to Microsoft should be sent to: Copies should be sent to:
MSLI,GP
6100 Neil Road, Suite 210
Reno, Nevada USA 89511-1137
Dept. 551, Volume Licensing
Microsoft
Law and Corporate Affairs
One Microsoft Way
Redmond, WA 98052 USA
Volume Licensing Group
(425) 936-7329 fax
Attachments:
~ Media Order Form (reauired)
0 Core User CAL Terms and Conditions. if applicable
0 MS Capital Form. if applicable
Customer. Please remit to your reseller.
Reseller. Please remit to Microsoft.
SLG Microsoft Enterprise 6.4 Enrollment
(Indirect)(North America) June 2006
Cover page
N36
Page 2 of 11
1. Contact information. Each party will notify the other in writing if any of the information in
the following contact information page(s) change. The * indicates required fields. By providing contact
information, you consent to its use for purposes of administering this enrollment by us, our affiliates, and
other parties that help us administer this enrollment.
Primary contact information: The customer signing on the cover page must identify an
individual from inside its organization to serve as the primary contact. This contact is the default online
administrator for this enrollment and receives all notices unless you provide us written notice of a change.
The online administrator may appoint others as administrators and grant others access to online
information.
Customer
Name of entity * Contact name *
St Lucie County BOCC Last Wetzel
First Dennis
Street address' Contact email address (required for online access) .
2300 Virginia Ave wetzeld@stlucieco.org
City * State/Province · Phone
Fort Pierce FL 772-462-1740
Country . Postal code * Fax
USA 34982 772 -462 -1443
Notices and online access contact information: Complete this only if you want to
designate a notices and online access contact different than the primary contact. This contact will
become the default online administrator for this enrollment and receive all notices. This contact may
appoint other administrators and grant others access to online information.
Notices and online access contact
~ Same as primary contact
Name of entity Contact name
Last
First
Street address Contact email address (required for online access)
City State/Province Phone
Country Postal code Fax
SLG Microsoft Enterprise 6.4 Enrollment
(Indirect)(North America) June 2006
Contact information
N36
Page 3 of 11
Language preference: This section designates the language in which you prefer to receive
notices.
I English
Additional electronic contractual notices contact information: This contact will
receive electronic contractual notices in addition to the notices contact. This contact is not required if you
do not want an additional set of notices issued.
Electronic contractual notices contact
Name of entity Contact name
Last
First
Street address Contact emaiJ address (required for electronic notices)
City State/Province Phone
Country Postal code Fax
Software Assurance benefits contact: This contact will receive communications concerning
Software Assurance benefits, and any additional TechNet subscriptions that have been ordered
separately from Software Assurance under this enrollment. This contact is optional. If this contact is not
completed, any notices for Software Assurance benefits will default to the notices and online contact.
Software Assurance benefits contact
Name of entity Contact name
Last
First
Street address Contact email address (required for electronic notices)
City State/Province Phone
Country Postal code Fax
SLG Microsoft Enterprise 6.4 Enrollment
(Indirect)(North America) June 2006
Contact information
N36
Page 4 of 11
MSDN contact: This contact will receive communications concerning registration for MSDN
products ordered under this enrollment. This contact is optional. If this contact is not completed, any
notices for MSDN will default to the notices and online contact.
MSDN contact
Name of entity Contact name
Last
First
Street address Contact email address (required for electronic notices)
City State/Province Phone
Country Postal code Fax
Microsoft account manager: This section designates your Microsoft account manager contact.
Rvan Barr
Microsoft account manager email address
ryanbarr@microsoft.com
Microsoft account manager name
SLG Microsoft Enterprise 6.4 Enrollment
(Indirect)(North America) June 2006
Contact information
N36
Page 5 of 11
2. Defining your enterprise.
Use this section to identify which affiliates will be included in your enterprise. Your enterprise must
consist of entire government agencies, departments or legal jurisdictions, not partial government
agencies, departments, or legal jurisdictions. Each affiliate must be entirely "in" or entirely "out." All
affiliates acquired after the effective date of this enrollment that are not party to a Qualifying Enrollment of
their own will automatically be included unless you fill in part b below.
a. Use this part (a) to determine which current affiliates will be included in your enterprise.
Check only one of the boxes in part (a).
~
o
Only you (and no other affiliates) will be participating
You and the following affiliates will be participating
(attach a list of names on a separate piece of paper if more than 10 affiliates are being included):
2
3
4
5
6
7
8
9
10
b. Use this part (b) to indicate whether affiliates with which you consolidate after the enrollment
effective date will be included. Unless you check the box below, all affiliates you
consolidate with after the enrollment effective date that are not party to a Qualifying
Enrollment of their own will automatically be included.
.1
Exclude all affiliates consolidated with after the enrollment effective date that are not party to a Qualifying
Enrollment of their own.
SLG Microsoft Enterprise 6.4 Enrollment
(Indirect)(North America) June 2006
Enterprise order information
N36
Page 6 of 11
3. Selecting your language option.
Select the option for the languages in which you will run the products licensed under this enrollment.
The options and their corresponding languages are identified here.
All Languages
~~.$ , ! .!:. "';. ~$.! ~!:~ ~ ~:, . ! .!:~~
Arabic
Bulgarian
Chinese Simplified
Chinese Traditional
Croatian
English 1 Hebrew
Indic
Japanese
Korean
Portuguese (Brazil)
Romanian
Russian
Serbian
Spanish2
Thai
Turkish
Ukrainian
1 English is a Listed Language if this enrollment is signed outside of the following countries and a Restricted
Language if this enrollment is signed inside these countries: Austria, Belgium, Cyprus, Czech Republic,
Denmark, Estonia, France, Finland, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania,
Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, United Kingdom,
Switzerland, Sweden, or Spain. English is a "Listed Language", except when restricted as described in the
"Restricted Languages" list (see footnote 3)
Danish
Dutch
English 1
Finnish
French3
German
Greek
Italian
Norwegian
Portuguese (Portugal)
Spanish2
Swedish
Czech
Estonian
Hungarian
Latvian
Lithuanian
Polish
Slovenian
Slovak
2 Spanish is a Listed Language only if this enrollment is signed in Latin America and is otherwise Restricted
Language.
3 French is a "Listed Language," if signed in Canada
. Select All Languages to run your products in any of the Listed, Extended or Restricted
Languages. This option also allows you to run Multi-Language packs for your products.
. Select Listed Languages to run your products in those languages.
. Select Extended Languages to run your products in those languages.
. If you select the Listed or Extended Languages option you may run up to 10% of the
copies of each of your products in All Languages.
Check one box
[g] Listed Languages
o All Languages
o Extended Languages
SLG Microsoft Enterprise 6.4 Enrollment
(Indirect)(North America) June 2006
Enterprise order information
N36
Page 7 of 11
4. Language allocation.
Provide us with your good faith estimate of the specific languages in which you will run all copies of all
products and the approximate percentage of those copies you will run in each language. Information that
you provide here does not limit your future use of products under this enrollment in any permitted
language within the language group you select above. Attach a separate sheet if more space is needed.
Language
Percentages
English
100%
5. Applicable currency.
Payments made in connection with this enrollment must be in U.S. Dollars
6. Establishing your price level.
The price level for enterprise products is determined by the terms and conditions of the enterprise
agreement. Your price level for additional products will be level "0".
Qualified desktops: You represent that the total number of qualified desktops
in your enterprise is, or will be increased to, this number during the initial term of 850
this enrollment (This number must be equal to at least 250 desktops).
Qualified users: You represent that the total number of qualified users in your enterprise
is, or will be increased to, this number during the initial term of this enrollment (This
number must be equal to at least 250 users).
SLG Microsoft Enterprise 6.4 Enrollment
(Indirect)(North America) June 2006
Enterprise order information
N36
Page 8 of 11
7. Enterprise product orders.
Your reseller will provide you with your product pricing and order. Your prices and payment
terms for all products ordered will be determined by agreement between you and your reseller.
Your reseller will provide us with your order separately from this enrollment.
We will invoice your reseller in three equal annual installments for the enterprise products covered by
your initial order. The first installment will be invoiced to your reseller upon our acceptance of this
enrollment; the remaining installments will be invoiced at the next two anniversaries of the enrollment
effective date. We will invoice your reseller for the enterprise products covered by any true up orders in
total upon our acceptance of each true up order.
Select the enterprise products to be covered by your initial order. If you select the Core CAL, you must
select either desktop or user licenses.
Enterprise Products Desktop User
Licenses Licenses
Windows Desktop Operating lZ:l
System Upgrade
Office Professional 1 lZ:l
Office Standard 1 D
Core Client Access License 1,2 lZ:l D
Exchange Server Client Access D D
License 2
SharePoint Portal Server Client D D
Access License 2
Windows Server Client Access D D
License 2
Systems Management Server D
Configuration Management
License
Windows Terminal Services D D
Client Access License 2
Office Live Communication D D
Server Client Access License 2
SQL Server Client Access D D
License 2
1 The components of the current versions of Office Professional, Office Standard and the current versions of the
components that make up the Core CAL, are identified in the Product List.
2 If you select a User CAL and the agreement identified on the cover page is version 6.1 or earlier, the
User CAL Terms and Conditions apply.
SLG Microsoft Enterprise 6.4 Enrollment
(Indirect)(North America) June 2006
Enterprise order information
N36
Page 9 of 11
8. Additional Products
We will invoice your reseller for each additional product covered by your initial order in three equal annual
installments. The first installment will be invoiced to your reseller upon our acceptance of this enrollment;
the remaining installments will be invoiced at the next two anniversaries of the enrollment effective date.
We will invoice your reseller for any new additional product not initially included in your enrollment in total
upon our acceptance of your order. We will invoice your reseller for additional products initially included in
your enrollment and covered by any true up order submitted during the initial term in total upon our
acceptance of your true up order.
9. Qualifying systems licenses.
All desktop operating system licenses provided under this program are upgrade Licenses. No full
operating system licenses are available under this program. Therefore, if you select the Windows
Desktop Operating System Upgrade & Software Assurance, all qualified desktops on which you will run
the Windows Desktop Operating System Upgrade must be licensed to run one of the qualifying operating
systems identified in the Product List at http://www.microsoft.com/licensinq. Note that the list of operating
systems that qualify for the Windows Desktop Operating System Upgrade varies with the circumstances
of your order. That list is more extensive at the time of your initial order than it is for some subsequent
true ups and system refreshes during the term of your enrollment.
10. Renewal orders.
For any 36-month renewal, your renewal order will be invoiced to your reseller in three annual
installments. The first installment will be invoiced upon our acceptance of the renewal order; the
remaining installments will be invoiced at the next two anniversaries of the effective date of that renewal
term. For any 12-month renewal and for any true up orders, we will invoice your reseller in total upon our
acceptance of your order.
SLG Microsoft Enterprise 6.4 Enrollment
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Enterprise order information
N36
Page 10 of 11
, Your reseller should complete the following sections and sign this form where indicated
General information
Reseller company name:
SHI
Street address: (PO boxes will not be accepted)
33 KniQhtsbridQe Road
City and State / Province and postal code:
Piscataway, NJ 08854
Country:
USA
Contact name:
Phone number:
888-764-8888
Fax number:
732-537 -7325
Email address:
msteam@shi.com
The undersigned confirms that the reseller information is correct.
Name of reseller
SHI
Signature
Printed name
Printed title
licensing Specialist
Date
SLG Microsoft Enterprise 6.4 Enrollment
(Indirect)(North America) June 2006
Reseller information form
N36
Page 11 of 11
SLG Enterprise and Enterprise Subscription Media Order Form
Media shipping information form - starter CD kit
Enrollment information Reseller contact
Agreement Company name:
number (Reseller or 01E61767 SHI
Microsoft affiliate to
complete)
Enrollment number Contact name:
(Microsoft affiliate to
comolete)
Customer contact Dennis. Wetzel Contact email: msteam@shLcom
Name:
Contact phone: 888-764-8888
THIS FORM MUST BE ATTACHED TO AN ENROLLMENT.
At your option, starter CD kits and CD-ROM subscriptions relating to your enrollment that you choose to
receive will be shipped to the address below. Terms used but not defined in this form have the meanings
given to them in your enrollment identified in this form.
The starter CD kit ship to information identifies the delivery location. If you do not elect physical media,
and intend to download copies of software instead, please provide the download delivery location as the
starter CD kit ship to information.
Starter CD kit ship to information ( . indicates reqUired information)
~ Same as notices contact in the enrollment
Customer name · Contact name ·
Street address' (no PO boxes accepted) Contact email address ·
City and State / Province · Contact phone number ·
Country and postal code · Contact fax number
If you choose below to receive media, then upon our acceptance of your enrollment, we will send you your starter
CD kit in the language(s) you select. This starter CD kit will be provided at no additional charge, in order to permit
you to exercise the license rights granted under your enrollment and related Enterprise Agreement. You may also
subscribe to updates in the form of CDs, or upon reasonable notice, electronic download or similar other means. If
you need additional starter CD kits and updates, you may order these through your reseller for a fee. For a
complete list of the contents of any kit, visit the web site at http://selectug.mslicense.comt.
D
Yes, I want to receive a starter CD kit (media)
o
Yes, I want to subscribe to receive CD kit
updates
o
No, I do not want to receive a starter CD kit
(media)
D
No, I do not want to subscribe to receive CD
kit updates
SLG Microsoft Media Order Form v6.4
(North America) (indirect) December 1, 2005
Page 1 of 2
SLG Enterprise and Enterprise Subscription Media Order Form
Media shipping information form - starter CD kit (continued)
Kon IPan-Chinese
. Mapping Kit is not available for use in or shipment to India, Hong Kong SAR, Macau SAR, China,
Morocco Pakistan, and Turkey.
.. Before installing any of the Multilanguage Packs, the English version of the product must first be
installed. If you order English/Multilanguage, you must also order English.
... Chinese Simplified Windows XP Professional is not available in the Enterprise Chinese Simplified
Kit and is only available in certain countries. Contact your reseller for availability in your region.
= Not Available
SLG Microsoft Media Order Form v6.4
(North America) (indirect) Oecember 1, 2005
Page 2 of2
Mi~ft.. .. ....)
... -... . a.. --. - ......-.'. '. . 'I'!?a
...~1!~,~~ v.~'~ ,~~__
~;\~'~}.~~~(':"i-~(:' ~t
Microsoft Enterprise Agreement- State and Local- NO SERVICES
CUSTOM - sr Reference Pricing
Entel'Prise Agreement number lor Microsoft BuSiness Agreement number I U02754"r 4
Microsoft affiliate to complefe It::: 10 17 (p 7 Reselier to complete
This Microsoft Enterprise Agreement is entered into between the following entities as of thu eHective date
identified below. Each party will notify the other in writing if any of the information in the following table
changes.
Customer .
Name of Entity
The State of Florida, acting by
and through the Department of
Management Services and State
Technology Office
Contact Name Todd McKay
(ThiS person handles access to ani TI8 intormation. This person also
receives notices unless a different contact for notices 5 provided in the
notices section below.
Street Address
4050 Esplanade Way
Contact E-mail Address
(Required for online
access)
mckayt@d,ns.state.f1.us
City Tallahassee StateIProvince Phone 850-487 -3~ 164
Fl
Country USA Postal Code Fax 750-488-5~198
32399
MICfoSOft Account Manager Name
Bob Ward
MSLI. GP - 6100 Neil Road, Suite 210 - Reno, Nevada USA 89511-1137. DepL 551. Volume Lcensing
If notice,> shotlld be scnt to someone 01 some pinel' olnet than above. complete the: relevant
pO/lIOns belOW
Name of Entity Contact Name
- -
Street address Contact E-mail Address
City Slale/Province PhOne
Country Postal Code Fax
- ..--.--..----
Nollca to Mlcroeoft should be sent lD: Copl.. should be sent lD:
MSU,GP M.icrO$oft
6100 Neil Road, Suite 210 Law and Corporate Affairs
Reno, Nevada USA 89511-1137 One Microsoft Way
Dept. 551. Volume Ucensing Redmond, WA 98052 U~iA
Volume Ucensing Group
VLG-USA@Microsoft.com
(425) 936-7329 fax
SLG MBA Microsoft Enterprise
Agreement v6.0
(North America) July 1, 2002
Cover Page
Page 1 of 24
This agreement consists of (1) this cover page, (2) the attached terms and conditions, (3) :he terms of the
Microsoft Business Agreement identified above (except that the definitions of "you," "we," and "us" in this
agreement supersede the definitions for those terms in the Microsoft Business Agrenment), (4) the
Product List, (5) the product use rights applicable to products licensed under this agreemlmt, and (6) any
enrollment entered into under this agreement.
Effective date. If the first enrollment entered into under this agreement is glven an effective date that is
earlier than the date this agreement is signed by us, the effective date of this agreem ent will be that
earlier date. Otherwise, this agreement will be effective on the date it is signed by us. Consulting and
Support Services shall not be Included in this agreement, but shall Instead be covered by
separate agreement(s) between the parties.
By signing below, the parties agree to be bound by the terms of this agreement, and yOL represent that
you are the entity that signed the Microsoft Business Agreement, or an aNiliate of that entity, and that the
information you have provided on this cover page is accurate.
cu........ ,."...,.". 'f 0' 2)1
Name of Entity
The State of Florida, acting by and
t ro h the Department of M.anagement
Cold"""" Mt1#'OMIIf """,...
MSLI, GP
Signature
v#~
Pnnted Name
Printed TItle
Secretary. Department of Management Services
Signaturil Date
'"~I :) (/ t .?>
Signature Datil
(da!l:t MlaOllOll affillale counll!'rslgnsl
MAY 1 6 2003
Effective Date
June 1, 2003
Cutomer (Sf'< -.e a of 2J:
Name of Enllly
The State of Rorlda. acting by and
through the State Technology Offloe
~
ROYED AS TO fOf\)A ~t) lE~'NJ,1.'\'
~OF1HEGENE~~r
:PARTM~~GEME 'l;
Printed Tille
State Chief Information Offlc8r
SI'gnature Date
Prepared by David Mills
SLG MBA Microsoft Enterprise Agreement
v6.0
(North America) July 1. 2002
Cover Page
Page 2 of 24
Terms and Conditions
1. Definitions.
In this agreement, "you" means the entity that has entered into this agreement with us, al,d "we" or "us"
means the Microsoft entity that has entered into this agreement or an enrollment. The t,~nns "affiliate,"
"ownership," "product," "Product List," "run" and "use" have the meanings given to them il' the Microsoft
Business Agreement. In addition, the following definitions apply:
"151 anniversary price level" means the volume discount level that is calculated for each product family
with respect to certain enrollments pursuant to the terms and conditions of Section 12(3)(2)(F), which
such level shall be used In conjunction with the initial price level and 2nd anniversary price level applicable
to such enrollments to determine whether the year 3 desktop reference price should be 10Nered for such
enrollments pursuant to the terms and conditions of Section 12(e)(2)(G);
"2nd anniversary price level" means the volume discount level that is calculated for each product family
with respect to certain enrollments pursuant to the terms and conditions of Section 12(3)(2)(F), which
such level shall be used in conjunction with the initial price level and 1st anniversary price 13vel applicable
to such enrollments to determine whether the year 3 desktop reference price should be 10Nered for such
enrollments pursuant to the terms and conditions of Section 13(e)(2)(G);
"3-year desktop reference price" means, with respect to an enterprise product on an enrol ment, the sum
of the reference prices of all installment payments for such product during the initial 3-yem term of such
enrollment;
"additional product" means any product other than an enterprise product that an enrolled alfiliate chooses
to license under its enrollment;
"151 anniversary price level" means the volume discount level that is calculated for each product family
wi1h respect to certain enrollments pursuant to the terms and conditions of Section 13(~)(2)(F). which
such level shall be used in conjunction with the initial price level and 2nd anniversary price Isvel applicable
to such enrollments to determine whether the year 3 desktop reference price should be IONered for such
enrollments pursuant to the terms and conditions of Section 13(e)(2)(G);
"2nd anniversary price level" means the volume discount level that Is calculated for each product family
with respect to certain enrollments pursuant to the terms and conditions of Section 13( El)(2)(F), which
such level shall be used in conjunction with the initial price level and 151 anniversary price 13vel applicable
to such enrollments to determine whether the year 3 desktop reference price should be IONered for such
enrollments pursuant to the terms and conditions of Section 13(e)(2)(G);
"3-year desktop reference price" means, with respect to an enterprise product on an enrol ment, the sum
of the reference prices of all installment payments for such product during the initial 3-yem term of such
enrollment;
"adjustment multiplier" means, with respect to a product family on the second anniversary of the effective
date of an enrollment for which it is determined, a number by which the originally calculated year 3
desktop reference price is multiplied in order to determine the adjusted year 3 desktop reference price,
pursuant to the terms and conditions of Section 13(e)(2)(G);
"aggregate famify desktop count" means, with respect to a particular product family as of a particular
annual pricing date. the aggregate number of qualified desktops under alt unexpired enroflrnents for which
one or more products in such family are chosen as enterprise products as of such date. including both (I)
the original qualified desktops ordered under such unexpired enroflments, plus (ii) any adoitional qualified
desktops added pursuant to true up orders;
"annual pricing date" means each of the following:
(i) the effective date of this agreement (the "first annual pricing datei:
SLG MBA Microsoft Enterprise Agreement
YB.a
(North America) July 1, 2002
Terms and Conditions
Page 3 of 24
(ii) the first day of the eleventh (11th) full calendar month fof/owing such first anm/al pricing date
(the "second annual pricing datej; and
(iii) the first day of the calendar month that occurs every 12 months following the second annual
pricing date, until the last enrollment executed hereunder expires or is otherwise teminated.
For example, if the first annual pricing date is June 1, 2003, then the second annual pricing date
shall be May 1, 2003, and each subsequent annual pricing date shall occur on May 1 of each
successive calendar year until the last enrollment hereunder expires or is otherwisE' terminated;
"annual price level" means, with respect to a particular product family and as of a particular annual pricing
period, the volume discount level, determined pursuant to the terms and conditions of Section 13(e), by
which each of the following shall be determined, based upon the aggregate family desktop count for such
product family as of the annual pricing date upon which such the determination of such level for such
period is made:
(i) the initial annual reference prices of enterprise products in such product family for new
enrollments with effective dates which occur in such annual pricing period;
(ii) the 1st anniversary and ~ anniversary price levels tor certain enrollments; and
(iii) the adjustment multiplier with respect to the year 3 desktop reference priCIJ for enterprise
products in such product family for previously-executed enrollments whose second
anniversary falls in such annual pricing period;
"annual pricing perIod" means each period which:
(i) begins on the first annual pricing date, or any anniversary thereof; and
(ii) ends twelve (12) tu/f calendar months fof/owing the day it begins.
For example, if the first annual pricing date is June 1, 2003, then: the first annua: pricing period
will run from June 1,2003 to May 31,2004; the second annual pricing period will rm from June 1,
2004 to May 37. 2005; and so forth.
Note that, with the exception of the first annual pricing period, each annual pricin~' period begins
one month following the annual pricing date upon which the annual price level for such period is
determined pursuant to Section 13(8). Such one-month period is necessary for IJS to calculate
the annual prIce levels and reference prices for the subsequent annual pricing period, and to
implement adjustments, if any, to the reference prices of third year installmenJ payments for
enrollments whose second anniversary falls in such subsequent period.
"available" means, with respect to a product, that we have made licenses for that produGt available for
ordering under the Enterprise Agreement program;
"CAL family" means any of the following client access license ("CAL j products, when such products are
chosen as enterprise products on an enrollment:
(i) Microsoft BackOffice CAL:
(ii) Microsoft Core CAL:
(iii) Microsoft Windows Server CAL;
(iv) Microsoft Exchange Server CAL;
(v) Microsoft SOL Server CAL;
(vi) Microsoft Systems Management Server CAL; or
(vii) Microsoft SharePoint Portal Server CAL;
"component platform product" means any of the following enterprise products:
(i) Microsoft Office Professional;
SLG MBA Microsoft Enterprise Agreement
\16.0
(North America) July 1, 2002
Terms and Conditions
Page 4 of 24
(ii) Microsoft Office Standard;
(iii) Microsoft Windows XP Professional Operating System Upgrades;
(iv) Microsoft Core CAL; and
(v) Microsoft BackOffice CAL;
"ending price level" means, with respect to an enterprise product ordered pursuant '0 a particular
enrollment. the volume discount level that is used to determine the adjustment multipliers applied to apply
to the year 3 desktop reference price. pursuant to the terms and conditions of Subsection 1 '3(e)(2)(G).
"enrolled affiliate" means an entity, either you or anyone of your affiliates, that has entered into an
enrollment under this agreement;
"enrollment" means the document that you or your affiliate submits under this agreemenl to sign up for
the Enterprise Agreement program and make an initial selection of products;
"enterprise" means the enrolled affiliate and the affiliates it chooses on its enrollment to include in its
enterprise;
"enterprise product" means any product that we designate as an enterprise product and that an enrolled
affiliate chooses to license under its enrollment (enterprise products may only be lil;ensed on an
enterprise-wide basis under the Enterprise Agreement program);
"Government EA Price List" means the Microsoft State and Local Government Enterpr;se Agreement
Price List that is provided on a monthly basis to each reseller, which contains the refemnce prices for
both enterprise products and additional products.
"horizon desktop count" means, with respect to a product family on an annuaf pricing date, the number of
qualified desktops that is equal to (i) the totaf number of qualified desktops enrolled, as ,}f such annuaf
pricing date. in unexpired enterprise enrollments containing an enterprise product befmging to such
product family ("current enroffments"), minus (ii) the number of qualified desktops enroffecr under current
enrollments that are scheduled to expire before the foffowing annual pricing date, if such E'nrollments are
not otherwise renewed. For example. if. as of a particular annual pricing date. there are 100,000 qualified
desktops in unexpired enroffments for a product family, and if one or more such enrollments containing a
total of 35,000 qualified desktops wi" expire before the following annual pricing date it not otherwise
renewed, then the horizon desktop count with respect to the annual pricing date and prc.duct family for
which the determination is made shall be 65,000;
"horizon price level" means, with respect to a product family during an annual pricing perixJ, the volume
discount fevef that is used to determine the 3-year desktop reference price of each enterprise product in
such product family for enrollments whose effective dates fall during such period, based on the horizon
desktop count, pursuant to the terms of Section 13(e)(2)(A);
''initiaf desktop count" means, with respect to a product family in which an enterprise product on an
enrollment is included, the aggregate family desktop count for such product famify as of the annual pricing
date which immediately precedes the annuaf pricing period during which the effective' date of such
enroffment occurs;
"initial price level" means, with respect to a product family during an annual pricing period, the volume
discount level that is used to determine the year 1 desktop reference price and year 2 de~:ktop reference
price of each enterprise product in such product family, pursuant to the terms of Section 13(e)(2)(B);
"License" means anyone of those offerings identified in the Product List (including standard licenses,
and upgrades for desktop operating systems) that provides the right to run the version of the product for
which it is ordered;
"L&SA" means a License and Software Assurance for any product ordered;
"Microsoft BackOffice Client Access License" and "BackOffice CAL" means each of the following client
access license products, when purchased together as a suite:
SLG MBA Microsoft Enterprise Agreement
v6.0
(North America) July 1, 2002
Terms and Conditions
Page 5 of 24
(i) Windows CAL;
(ii) Exchange CAL;
(Ui) SOL CAL; and
(iv) SMS CAL
(note: BackOffice CALs may solely be purchased hereunder pursuant to enrollmE'nts that renew
previous enroflments under which BackOffice CAL was included as an enterpris ~ product. and
may not be purchased pursuant to any non-renewal enrollments executed hereunder);
"Microsoft Core Client Access License" and "Core CAL" means each of the following client access license
products, when purchased together as a suffe:
(i) Windows CAL;
(ii) Exchange CAL;
(iii) SharePoint CAL; and
(iv) SMS CAL;
"non-renewal enroJ/ment" means any enrollment executed hereunder that is not a renewal onrollment;
"Office family" means either of the following enterprise products: (i) Microsoft Office Prof'3ssional; or (ii)
Microsoft Office Standard;
"order" means an order on a form that is acceptable to the reseller
"original true up reference price" means, with respect to an enterprise product at the first, .,econd or third
anniversaries of an enrollment, respectively, the original per-additional-desktop unit refe:ence price for
the true up order due at such anniversary, as determined at the effective date of sllch enrollment
pursuant to Section 13(e);
"platform discounr' means a discount factor applied when calculating the reference priCE~s for products
sold pursuant to platform enroJ/ments, pursuant to the terms of Section 13(e);
"platform enrollment" means any enrollment executed hereunder for which each of the following is a
chosen enterprise product:
(i) either (a) Office Standard or (b) Office Professional; and
(ii) Microsoft Windows Professional desktop operating system; and
(iv) either (c) BackOfflce CAL or (d) Core CAL;
"premium level discount" means a discount factor applied when calculating the referEnce prices for
products during an annual pricing period for which the initial desktop count and/or horizon desktop count
are 40,000 or more, pursuant to the terms of Section 13(e);
"product family" means any of the following collections of enterprise products, as defined above: (i) Office
family; (Ii) Windows family; and/or (ili) CAL family;
"qualified desktop" means any personal desktop computer, portable computer, workstcltion or similar
device that is used by or for the benefit of an enrolled affiliate or any affiliate included in its enterprise and
that meets the minimum requirements for running any of the enterprise products. Qualifiud desktops do
not include: (i) any computer that is designated as a server and not used as a personal computer. (ji) any
system dedicated to run ONLY line-of-business software (e.g., an accounting or bookkeeping program
used by an accountant, or a computer-aided design program used by an engineer or architect); or (iii) any
system running an embedded operating system (e.g. Windows 9.x for embedded, Windows XP
embedded);
"renewal enrollment" means an enrollment executed hereunder pursuant to which a renewal order for
enterprise products is made;
SLG MBA Microsoft Enterprise Agreement
v6.0
(North America) July 1. 2002
Terms and Conditions
Page 6 of 24
"renewal order" means the order that an enrolled affiliate submits at the beginning of any renewal term to
renew Software Assurance coverage for products previously ordered under its enrollment;
"reseller" means a large account reseller authorized by us to resell licenses in an enrolled affiliate's area
under the Enterprise Agreement program;
"Select Price List" means the Microsoft Select Agreement Price List that is provided on a monthly basis to
each reseller, which contains the estimated retail prices for products made available pursuant to the
Microsoft select program;
"Services" means product support or other services that an enrolled affiliate elects to purchase pursuant
to a separate Microsoft Services Agreement;
"Software Assurance" means, for any underlying licensed product for which it is ordered, the right to
upgrade to, and nJn, the latest version of that product that we make available during the covered period.
"true up desktop reference price" means, with respect to an enterprise product at the first, second or third
anniversaries of an enrollment, respectively, the per-additional-desktop un;' reference price for the true up
order due within 15 days following such anniversary, as determined at the effective date of such
enrollment pursuant to Section 13(e);
"unexpired enrollmenf' means, with respect to an annual pricing date, an enterprise enrollment under
either (i) this agreement; or (ii) another Microsoft Enterprise Agreement to which either YOll or one of your
affiliates is party, provided that such enrollment shall not have expired or been terminated prior to such
annual pricing date;
'Windows familyn means the following enterprise product: Microsoft Windows XP Professional desktop
operating system (or its successor);
"year 1 desktop reference price" means, with respect to an enterprise product on an enrol/ment, the per-
desktop reference price that applies to the first of three annual installment payments for such product;
"year 2 desktop reference price" means, with respect to an enterprise product on an enrOllment, the' per-
desktop reference price that applies to the second of three annual installment payments fo' such product;
and
"year 3 desktop reference price# means, with respect to an enterprise product on an enrollment, the per-
desktop reference price that applies to the third of three annual installment payments for such product.
2. How the Enterprise Agreement program works.
The Enterprise Agreement program gives customers that wish to license one or more of Microsoft's
platform products across their enterprise the means to ensure that their entire enterprise will be licensed.
You and your affiliates can participate in this program by submitting one or more enrollml~nts under this
agreement. On the enrollment, the enrolled affiliate will designate the scope of its enter~rise and make
the initial selection of enterprise products and any additional products it wishes to license. Each
enrollment must include at least one of those products that we make available to license a::; an enterprise
product. We may reasonably refuse to accept an enrollment. Product support is not included with the
licenses under this agreement. Notwithstanding any other provision of this agreement, only enrolled
affiliates identified in an enrollment will be responsible for complying with the terms of t11at enrollment,
including the terms of this agreement incorporated by reference in that enrollment.
a. Establishing price levels. The method by which price levels shall be determined as set forth
in Section 13(e).
b. Deriving prices from price levels. The enrolled affiliate's reference prices shall be
determined as set forth in Section 13(e).
c. How your enrolleel affiliates acquire licenses. Orders under an enrollment will be made
out to and submitted to the enrolled affiliate's reseller. We will invoice that reselh3r according to
the terms in the applicable enrollment. While such enrollment will contain referel1ce prices, the
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reseller and the enrolled affiliate will determine the enrolled affiliate's actual prien and payment
terms.
d. Choosing and maintaining a reseller.
Resellers. Each enrolled affiliate that signs an enrollment must choose and maintain a reseller in
the enrolled affiliate's area. Resellers are authorized to resell our product lic1mses, but act
independently and have no authority to bind us.
Change of reseller. If an entity ceases to be a reseller, the enrolled affiliate must choose a
replacement. If an enrolled affiliate intends to change its reselIer, a change will o,ly be effected
on the next anniversary of the enrollment effective date, or otherwise with our prior written
approval. To change a reseller, the enrolled affiliate must notify us and the forner reseller in
writing, on a form that we provide, at least 30 days prior to the anniversary on wh ch the change
is to take effect. In the case of a change of reseller, the enrolled affiliate is responsible for
ensuring that all its obligations to the former reseller are met.
3. How to order enterprise product licenses.
a. Placing the Inltla' order. Each enrolled affiliate must submit an Initial order for the enterprise
products it selects on its enrollment. Except as provided in the following paragraph, the order
must be for L&SA for all enterprise products.
When Is the enrolled affiliate eligible to order only Software Assurance for an enterprise
product? An enrolled affiliate may order Software Assurance for the enterpr se products it
selects without the need to simultaneously order a License if the enrofled affiliatu or any of the
affiliates in its enterprise have obtained perpetual licenses for that product on an Einterprise-wide
basis under a previous "Enterprise Enrollmenr (defined below), and the new enrollllent becomes
effective no later than the day following the date of expiration of that "Enterpri~e Enrollment."
The Software Assurance order must be for the number of qualified desktops cO\iered as of the
expiration of that "Enterprise Enrollment." For all other qualified desktops i lcluded in an
enrollment submitted under this agreement, the enrolled affiliate must order L&SA.
The term "Enterprise Enrollment," as used in this section 3, means (I) a Micro:;;oft Enterprise
Select Agreement; (ii) an enterprise enrollment under a separate Microsoft Select Master
Agreement or Microsoft Enterprise Agreement; (iii) any enterprise subscription enrclllment entered
into under a separate Microsoft Enterprise Subscription Agreement; or (iv) any other enrollment
submitted under the Microsoft Enterprise Agreement identified on the cover page.
b. Adding new enterprise products. An enrolled affiliate may only add rlew enterprise
products by entering into a new enrollment.
c. Placing annual "true up" orders to account for additional desktops. Each enrolled
affiliate must determine the current number of qualified desktops in its enterprise: (i) at each
anniversary of the effective date of its enrollment (including anniversaries during any renewal);
and, (ii) at the expiration or early termination of its enrollment.
. If the desktop count has Increased. If the number of qualified desktops has increased, the
enrolled affiliate must submit an order for L&SA covering those additional clesktops. The
enrolled affiliate must place the order within 15 days following the anni'/ersary of the
enrollment effective date, expiration or termination.
. If the desktop count has not increased. If the number has not increasej, the enrolled
affiliate must submit an update statement confirming this fact on the form we provide within
that 15-day period.
d. Reorganizations, Consolidations, and Privatizations. If the numbEir of qualified
desktops in an enterprise changes by more than ten percent as a result of a reorganization,
consolidation or privatization of an enrolled affiliate, we will work with the enrolled affiliate in good
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faith to determine how to accommodate its changed circumstances in the context of this
agreement. If an enrolled affiliate consolidates with a customer with an existing "Enterprise
Enrollment," we will work with the enrolled affiliate in good faith to accommoda:e its changed
circumstances in the context of this agreement.
4. How to order addition a' product licenses.
B. Placing the initial order. Each enrolled affiliate must submit an initial order for the additional
products it has selected, if any, on its enrollment. Except as provided in the following paragraph,
the order must be for L&SA for all copies of those additional products.
When is the enrolled affiliate eligible to order only Software Assurance for an additional
product? An enrolled affiliate may order Software Assurance for additional products it selects
without the need to simultaneously order a License if the enrolled affiliate or any of the affiliates it
includes in its enterprise has obtained perpetual licenses for those products with Upgrade
Advantage, Sof1ware Assurance or any similar upgrade protection, and the new enroll11ent
becomes effective no later than one day following the expiration of that upgrade protection. The
order may be for up to the number of copies covered by such upgrade protectioll. An enrolled
affiliate may also order Software Assurance alone in any other circumstances exprussly permitted
in the Product List. For all other copies included in an enrollment submitted under this
agreement, the enrolled affiliate must order L&SA.
b. Adding new additional products not previously ordered. Each enrolled affiliate may,
during the remainder of the applicable initial enrollment or renewal term, run Ilew additional
products under its enrollment that were not part of the initial order. To do so, the enrolled affiliate
must order L&SA in the month in which the product is first run, covering all copies of that product
run as of the date of the order. For any additional copies of that product run after the date of that
order, the enrolled affiliate must submit orders as described in subsection 4(c) (l'lacing annual
''true up" orders to account for additional copies) below.
c. Placing annual "true up" orders to account for additional copies. Each enrolled
affiliate may, during the remainder of the applicable initial enrollment or renewal term, run
additional copies of those additional prOducts it previously ordered under subsecticns (a) and (b),
provided that the enrolled afflllate places a true up order for L&SA for those additional copies.
The enrolled affiliate must submit an order within 15 days after the next anni v'ersary of the
effective date of the enrollment (including anniversaries occurring during any renl~wal) following
the date on which those copies were first run. For additional copies first run in thEI year in which
an enrollment expires or is terminated, the enrolled affiliate must submit an order within 15 days
following the expiration or termination date.
d. Update statements. Each enrolled affiliate must submit an update statement lVithin 15 days
following each anniversary of the effective date of its enrollment, and after expiration or
termination of its enrollment, on a form we provide, unless that enrolled affiliate (i) is running only
enterprise products under its enrollment, and (ii) it ;s not otherwise required to submit an update
statement under subsection 3(c) (Placing "true up. orders to account for additional desktops)
above.
5. How to confirm orders.
We will publish information about orders placed by each enrolled affiliate. including an elec1ronic
confirmation of each order, on a secure site on the World Wide Web at htto:lIlicenslna.mlclosoft,com or a
successor site that we identify. Upon our acceptance of this agreement and enrollmen:s entered into
under this agreement, the contact identified for this purpose on the cover page will be provided access to
this site.
6. LIcense grant - what your enrolled affiliates are licensed to l"Un.
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Upon our acceptance of the enrollment, the enrolled affiliate has the following rights durin~1 the term of its
enrollment.
. For enterprise products. The enrolled affiliate may run one copy of the latest ',ersion (or any
prior version) of each enterprise product, on each qualified desktop. By includin~1 affiliates in its
enterprise, the enrolled affiliate sublicenses this right to each of them subject to the terms of this
agreement.
. For additional products. The enrolled affiliate may run the number of copies of 13ach additional
product ordered in the latest version (or any prior version). If an affiliate included in any enrolled
affiliate's enterprise runs any copies of an additional product under this agreement, those copies
are sublicensed from that enrolled affiliate subject to the terms of this agreement.
The right to run any product licensed under an enrollment is temporary until:
(i) the enrOlled affiliate has paid all installments of the price for that product license and the
applicable initial enrollment or renewal term during which that product license WclS ordered has
expired or been renewed, or
(ii) the enrolled affiliate Is otherwise entitled to perpetual licenses upon early termination as provided
in subsection 12(c) (Termination of an enrollment).
Thereafter, the enrolled affiliate will have perpetual licenses to run the latest version available as of such
date of expiration, renewal or termination (or any prior version), of each enterprise product in a number of
copies equal to the total number of qualified desktops covered by the enrollment; and uach additional
product in the number of copies ordered during the applicable initial enrollment term or rel1ewal term. In
the case of early termination as provided in subsection 12(c) (Termination of an enrollmenn, if an enrolled
affiliate chooses only to pay amounts due and payable as of the termination date, then the enrolled
affiliate will instead have perpetual licenses for the number of copies specified in subsectic1n 12(d) (Effect
of termination or expiration).
Any perpetual licenses received through Software Assurance supersede and replace the underlying
perpetual licenses for which that Software Assurance coverage was ordered. All perpetual licenses
acquired under this agreement remain subject to the terms of this agreement and the applicable product
use rights.
This agreement, the applicable enrollment, the enrolled affiliate's order confirmation described in section
5 (How to confirm orders) above, and any documentation evidencing transfers of licenses as described in
subsection 11 (a) (How to transfer), together with proof of payment, will be the enrolled affiliate's evidence
of all licenses obtained under its enrollment.
7. How to know what product use rIghts apply.
The product use rights applicable to products licensed under each enrollment are as followH.
a. For latest versions available as Of an enrollment effective date. For tho latest version
of any product available on or before the enrollment effective date, the product use rights in effect
on the enrollment effective date for that product and version apply.
b. For versions and products that become available aner an enrollment effective
date. For any version of any existing product, or any new product, first made aVHilable after the
enrollment effective date, the product use rights in effect on the date on which the version or
product first becomes available apply (subject to our commitment on use rights below).
c. For versIons of a product that predate the latest version ava/laNe as of an
enrollment effective date. If an enrolled affiliate is using a version of any product licensed
under its enroUment that became available prior to the version that was current on the enrollment
effective date, the enrolled affiliate's use of the earlier version will be governed by the product use
rights that would apply if the enrolled affiliate were using the version licenned under the
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enrollment, or in the case of Software Assurance or L&SA, the latest version that is or becomes
available at any time during its enrollment.
d. Microsoft's commitment on use rights.
For all products - use rights fixed by version. We will not change an en'olled affiliate's
product use rights under this agreement for any version of a product after it becomes available to
that enrolled affiliate under its enrollment.
For enterprise products - no detrimental use right changes In new versions.
(i) For new versions made available during the initial enrollment term. If we make
available a new version of any enterprise product during the initial enrollmen: term and that
new version is subject to certain use rights that are more restrictive than those that applied to
a prior version under an enrollment that was or became available during the ir itial enrollment
term, the enrolled affiliate may run that new version without being subject to those certain
more restrictive use rights.
(ii) For new versions made available during each renewal tenn. Upon eClch renewal of
Software Assurance for an enterprise product, an enrolled affiliate's use of t11at product will
be governed by the use rights that apply to the latest version of that product available as of
the date of that renewal, including any terms that are more restrictive than those that applied
to a previous version of that product licensed by that enrolled affiliate under its enrollment
during the preceding term. However, if during a renewal term we make ailailable a new
version of that same enterprise product with certain use rights more restrictive than those use
rights that applied to a prior version licensed under an enrollment that was or became
available during that same term, the enrolled affiliate may run the new version without being
subject to those certain more restrictive use rights.
(iii) New features or functionality. The right described in subsections (i) and (ii) above does not
apply to product use rights that relate specifically to new features or functionc.lity added to a
new version.
To the maximum extent pennitted by Florida law, Kllieu of your obligation to indemnify us under various
provisions of the product use rights, you will be responsible for any cost or damages arising from any
claim to which your indemnity obligation would otherwise apply.
8. No ServIces.
Notwithstanding any offerings that may exist for our non-government customers, serviCE!S shall not be
offered pursuant to this agreement. but may be obtained pursuant to a separate MiclOsoft Services
Agreement which you may choose to enter into.
9. Software Assurance Membership.
Throughout the term of its enrollment (including any renewal), each enrolled affiliatE' automatically
qualifies as a member of Microsoft's Software Assurance Membership program. Membership may entitle
the enrolled affiliates to special benefits. For a description of these benefits, an enrolled affiliate should
consult its reseller or Microsoft account manager.
1~ MakmgcopNsofsoftware.
a. Coples necessary for internal deployment. Each enrolled affiliate may make as many
copies of the products licensed under its enrollment as necessary to distribute the ::>roducts to the
users within its enterprise. All copies of any product must be true and complete cc'pies (including
copyright and trademark notices) and be made from CD-ROMs, disk sets or a network source,
acquired from or made available by a Microsoft approved fulfillment source for tha1 product. Each
enrolled affiliate may also have a third party make and distribute copies in its place, but the
enrolled affiliate is responsible for third-party actions to the same extent it would be if the third
party were its employee. We shall wOfk with you In good faith to reso{ve any issues you may have
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in making or obtaining licensed copies of products in a timely manner. You anc your affiliates
must make reasonable efforts to make employees, agents and other Individuals running a product
aware that the product is licensed from us and may only be run or transferred subjE!ct to the terms
of this agreement.
b. Caples for training, evaluation and back~up. During the term of its enrollrnent (including
any renewal), each enrolled affiliate and any affiliate included in its enterprise may (i) run up to 20
complimentary copies of any additional product in a dedicated training facility on~heir premises;
(ii) run up to 10 complimentary copies of any product that we make available to license as an
additional product for a 60-day evaluation period; and (iii) make and retain one complimentary
copy of any licensed product for back-up or archival purposes for each of their disti1ct geographic
locations.
c. Re-Imsglng rights. If an enrolled affiliate or any affiliate included within its enterprise has
licensed products from an original equipment manufacturer (OEM), through a rl~tail source or
under any Microsoft program other than this Enterprise Agreement program, it may use copies
made from the media provided under the enrolled affiliate's enrollment in place of any copies
made from the media provided through that separate source, so long as it complies with the
following restrictions.
(i) The enrolled affiliate must have obtained a separate license from the separate source for
each copy being replaced.
(ii) The product, language, version and all components (in the case of prOduct f;uites, such as
Office) of the copies made from the media provided under an enrollment must be identical to
the product, language, version and all components of the copies they replace.
(iii) In the case of copies licensed from an original equipment manufacturer (OEM) or through a
retail source, in addition to the other conditions outlined in this subsection 10(c), the product
type (e.g, upgrade or full license) of the copies made from the media provided under an
enrollment must be Identical to the product type of the copies they replace. However, an
enrolled affiliate may use copies of a deSktop operating system made frl)m the media
provided under its enrollment in place of copies of the same desktop op'~rating system
obtained from a separate source, even though they may be of different types (ie. one may be
an upgrade and the other a full license), provided that the product, language and version are
identical.
The use of any copies made under this subsection 10(c} is subject to the terms and use rights
provided with the copies being replaced, and nothing in this section creates c r extends any
warranty or support obligation.
11. Transferring licenses.
a. How to transf.r. An enrolled affiliate may transfer perpetual licenses ordElred under an
enrollment to an affiliate, as defined in the Microsoft Business Agreement, or to an unaffiliated
third party in connection with a privatization of the enrolled affiliate, as long as the enrolled
affiliate provides us with prior written and signed notice, on a form that we provide, that includes:
(i) the applicable enrollment number: (il) the quantity of licenses being transferred I:>y product and
version; (iii) the name, address and contact information of the transferee; and (iv) any other
information that we may reasonably request.
For all other transfers of licenses to unaffiliated third parties, our written consent i~ required. We
will not withhold our consent unreasonably. No license transfer will be valid unless the transferee
accepts in writing the applicable product use rights, use restrictions, limitations of liability, and the
transfer restrictions in this section 11. Any transfer made in violation of the rttquirements or
restrictions of this section will be void.
b. When tfsnsf.rs Sfe not permitted. An enrolled affiliate may not transfer (i) licenses on a
short-term basis, (ii) temporary rights to use products, (iii) Software Assurance coverage, (iv)
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perpetual licenses for any version of any product acquired through SoftwElre Assurance
separately from the underlying perpetual licenses for which that Software Assurance coverage
was ordered; or (v) upgrade licenses for a desktop operating system product separately from the
underlying desktop operating system license or from the computer system on which the product is
first installed.
12. Term, termination and renewal.
a. Term. This agreement will remain in effect for 36 full calendar months followillg its effective
date, unless it is terminated as described below.
Each enrollment will have the term provided in that enrollment.
b. Termination of this agreement. Either party may terminate this agreement if the other party
materially breaches its obligations under this agreement or the terms and conditions of the
Microsoft Business Agreement. Except where the breach is by ffs nature nor curable within 30
days, the terminating party must give the other party 30 days written notice and opportunity to
cure prior to termination.
Effect of termination. Such termination will merely terminate either party's ard its affiliates'
ability to enter into new enrollments under this agreement. Such termination will not affect any
enrollment not otherwise terminated, and any terms of this agreement app!icable to any
enrollment not otherwise terminated will continue in effect with respect to that enrollment.
C. Termination of an enrollment - general. Either party to an enrollment may terminate it if
the other party materially breaches its obligations under this agreement. including any obligation
to submit orders or pay amounts owed (even if such non.payment is caused by non-appropriation
of funds). If we terminate an enrollment. we may also terminate this agreement and all other
enrollments under it, unless the basis for termination of the enrollment is non-a:>propriation of
funds to the enrolled affiliate, in which event we may only terminate the affected enrollment.
Except where the breach is by its nature not curable within 30 days. the terminating party must
give the other party 30 days notice and opportunity to cure. If we give such notice to an enrolled
affiliate, we will give you a copy of that notice as well. If an enrolled affiliate ceases to be your
affiliate, you must promptly notify us of this fact, and we may terminate its enrollment.
d. Termination of an enrollment - non-appropriation of funds. An enrolle d affiliate may
terminate an enrollment without liability, penalty or further obligation to make oayments, but
subject to Section 12(9), below (Effect of expiration or termination), if funds to rr ake payments
under the enrollment are not appropriated or allocated for such purpose.
6. Effect of termination or expiration. Upon expiration or termination of any unrollment, the
enrolled affiliate must order licenses for all copies of products it or its affiliates have run under its
enrollment for which the enrolled affiliate has not previously submitted an ordm. Except as
provided in the next paragraph, in the event of termination, all unpaid installments (If the purchase
price for any licenses will immediately become due and payable. and the enrolled affiliate will be
entitled to perpetual licenses only after all such payments have been made.
If (i) an enrolled affiliate terminates its enrollment as a result of our breach, or (ii) we terminate an
enrolled affiliate's enrollment because it has ceased to be your affiliate, or (iii) you terminate an
enrollment for non-appropriation of funds, or (iv) we terminate an enrollment for non-payment due
to non-appropriation of funds. then the enrolled affiliate will have the following o:>tions. It may
immediately pay the total remaining amount due, including all installments, in which case the
enrolled affiliate will have perpetual licenses for all copies of the products it has ordered. As an
alternative, it may pay only amounts due and payable as of the termination date, in which case
the enrolled affiliate will have perpetual licenses for (i) all copies of all products for which payment
has been made in full, and (ii) the number of copies of products for which paynent has been
made in installments that is proportional to the amount that has been paid as of I he termination
date.
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f. How to renew an enrollment. We will provide each enrolled affiliate with 60 days prior
written notice of expiration of its enrollment or renewal term advising it of its renewal options. An
enrolled affiliate may have the option to renew its enrollment for successive terms of 12 or 36 full
calendar months. We and our affiliates will not unreasonably reject any renewal ol'der. However,
we may make a change to the Enterprise Agreement program that will make it nel~essary for you
and your enrolled affiliates to enter into new agreements and enrollments.
Placing renewal orders. To renew. the enrolled affiliate must submit a renewal order within 30
days after the previous term expired. The renewal order must be for Software A:;surance for (i)
all enterprise products previously ordered for all qualified desktops in the emolled affiliate's
enterprise as of the date of that renewal order, and (ii) all copies of additional pro,jucts for which
the enrolled affiliate elects to renew Software Assurance. Each renewal term w II start the day
following expiration of the prior term. An enrolled affiliate may not add new enterprise products
not previously ordered during the initial term as part of its renewal; to license lew enterprise
products it must submit a new enrollment.
Consequences of non-renewal. If the enrolled affiliate elects not to renew it~; enrollment or
Software Assurance for any additional product under its enrollment, and it ot:,erwise allows
Software Assurance for any copies of any products licensed under its enrollmenl to lapse, then
the enrolled affiliate will not be permitted to order Software Assurance for such copies later
without first acquiring L&SA.
g. Non-appropriation of funds. The State of Florida's performance and obligation to pay
under this contract is contingent upon an annual appropriation by th e legislature.
Nothing in the preceding sentence shall be construed to modify those sfk:tions of this
agreement that relate to either (i) the determination and adjustment of reference price;
(ii) the eligibility of an affiliate to place Software Assurance renewal orde'rs; or (Hi) the
termination of enrollments and subsequent issuance of partial license confirmations in
the event of an affiliate's non-appropriation of funds.
13. MIscellaneous.
a. Entire agreement. The documents identified on the cover page to this agreement constitute
the entire agreement concerning the subject matter and supersede any prior or contemporaneous
communications. In the case of a conflict between any of these documents that is not resolved
expressly in the documents, their terms will control in the order specified in the Microsoft
Business Agreement. The terms of any purchase order or any general terms and conditions you
or your affiliates maintain, other than those mandatory terms required by statute o' regulation, do
not apply. This agreement (except the product use rights and the Product List) c,m be changed
only as required by law or by an amendment signed by both parties.
b. Survival. Provisions regarding product use rights, restrictions on use, evidence of perpetual
licenses. transfer of licenses, warranties, limitations of liability, confidentiali1y, compliance
verification and obligations on termination or expiration will survive termination or expiration of
this agreement or any enrollment.
c. Independent contractors. Resellers are independent contractors who act in tneir own name
and for their own account; they have no authority to bind or impose any obligation "r liability upon
us.
d. Copyright Violation. Except to the extent you are licensed under this agreemlmt, you will be
responsible for your violation of our copyright in the products, including payment of license fees
specified in this agreement for unlicensed use. Your liability under this paragraph is subject to
the limitations found in Section 768.28(18), Florida Statutes, and nothing in this paragraph shaff
be deemed to affer the limits set forth in therein.
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e. Determination of reference prices. Reference prices for additional products and enterprise
products shall be determined as follows:
(1) Determination of pricing for additional products.
With respect to a product pool for which additional products are made available, cfuring the term
of each enroJlment executed hereunder, and provided that you are party to a Microsoft Select
Agreement (or its successor) during such term, the volume discount level for E'ach additional
product ordered pursuant to such enrollment in each product pool shalf be the same volume
discount level that corresponds to such pool in such Select Agreement. For E1xample, if the
volume discount level for the Servers pool in the State's Select Agreement is "Leljel D," then the
volume discount level hereunder for additional products In the Servers Pool shaff also be "Level
D."
(2) Determination of pricing for enterprise products.
(A) Determination of horizon price leVf{t-I. For each product family and for each annual
pricing period, we wJJJ determine a horizon price level that shall apply to all enrollments
containing enterprise products in such product family which ha ve effective dates that fall
during such pricing period, pursuant to Table 1 in Addendum A, by matching the horizon
desktop count for such family (as of the annual pricing date which immediately precedes
such annual pricing period) with the column marked "Annual Price Level Name. "
For example if, as of the annual price date upon which the determination of horizon price
level for an annual pricing period is to be made, the horizon desktop count for the Office
famity is calculated to be between 60,000 and 79,999 qualified desktops, then the horizon
price level for the Office family for such annual pricing period shaff be the "60K Premium
Level. "
(B) Determination of initial price level. For each product family and for each annual
pricmg period, we will determine an initial price level that shall apply to 'iJ./I enrollments
containing enterprise products in such product family which have effective dates that fall
during such annual pricing period, pursuant to Table 1 in Addendum A, b/ matching the
aggregate family desktop count for such family (as of the annual prici,1g date which
immediately precedes such annual pricing period) with the column markee' "Annual Price
Level Name."
For example if, as of the annual price date upon which the determinatior. of initial price
level for an annual pricing period is to be made, the aggregate family de:;ktop count for
the Office famify is calculated to be between 80,000 and 119,999 qualified desktops, then
the initial price level for the Office family for such annual pricing period ShOlIl be the "80K
Premium Level. "
(C) Establishina comDonent initial desktoo reference prices for new enrollments. The
Government EA Price List provtrJed to resellers generally contains reference prices for
the following common enterprise products:
. Microsoft Office Professional;
. Microsoft Windows XP Professional Operating System Upgrades;
. Microsoft Core CAL; and
. Microsoft Desktop Professional (which ;s a suite composed of the preceding
three component products, and the reference price for which is e~'ual to the sum
of the three component reference prices less the applicable platform discount).
For the purposes of the agreement, the Government EA Price List entrv for Microsoft
Desktop PrOfessional (or any other enterprise product we might add to such price fist that
is a combination of component products from diflerent product families) ~'hall not apply,
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since this section 13(e) provides an alternate and equivalent means by which the
component products of such suite shall be priced. Rather, the componer.ts of Microsoft
Desktop Professional (or other suite of products from different product families) shall be
sold as separate line items to the reseller. This is necessary in order tnat the year 3
desktop reference prices which apply to each of the product families wh,ch contain the
component products may be adjusted separately, as set forth below in Section
13(e){2){G).
On each annual pricing date, we will establish a list of 3-year desktop re/erence prices,
year 1 desktop reference prices, year 2 desktop reference prices, and }'ear 3 desktop
reference prices (collectively, "initial desktop reference prices? for eacn of the most
commonly requested enterprise products, plus any other enterprise proo'ucts for which
you may have requested reference prices. We will provide you with a list of such
reference prices. We wifl also provide your reseller(s) with a list of such initial desktop
reference prices, along with the corresponding confidential reseller costs.
Such initial desktop reference prices shall apply to all new enrollments signed during the
annual pricing period which immediately follows such annual pricing date, but not
thereafter, unless different inftial prices are agreed upon in writing betwE1en us and an
enrolled affiliate (or between us and you) based upon certain exceptiolls to standard
terms including (but not limited to) applied credits and/or deferred payment schedules.
Initial desktop reference prices and true up desktop reference prices for each enterprise
product sold on an enrollment which becomes effective during an annual pricing period
shall be calculated, using the formulas below, using each such product's standard license
Select reference price ("L i (except as noted below with respect to the Windows
Professional Upgrade) and one-year Software Assurance Select reference price ("SA")
pursuant to the reference prices found on the Select Price List which is in I~ffect as of the
annual pricing date upon which the determination is being made for such annual pricing
period, and using a Select volume discount level that is determined for esch pool based
on the respective initial desktop count and horizon desktop counts for the corresponding
product family as of such annual pricing date, as follows:
Qualified
DesktoPS Select Level
15000 or more 0
6,000 - 14,999 C
2.400 - 5.999 B ,--
2,399 or less A
For example, if, as of the annual pricing date for which a determination,s being made,
both the horizon and initial desktop counts for the Office family are 16,000 or more
qualified desktops, then the Select reference prices that apply when calc'Jlating "L" and
"SAn for products in the Office Family, for use in the below formulas, shalf oe based upon
the "Level D" Select reference prices for such products.
For the purposes of determining the value of "Ln solely with respect tc the Windows
Professional Upgrade, sixty percent (60%) of the Select reference price of such Upgrade
shall be used.
The following formulas shall apply:
(i) for orders of License & Software Assurance on an initial order made pursuant to
a non-renewal enrollment, the initial annual reference prices shal' be calculated
according to the following formulas:
SLG MBA Microsoft Enterprise Agreement
v6.0
(North America) July 1, 2002
Terms and Conditions
Page 16 of 24
Formula for 3-year desktop reference price (using the horizon dosktop count to
determine the applicable Select volume discount levels):
{ [ L + ( 3 x SA )] x 0.85 }; less (a) an additional premium IElVel discount (if
applicable); less (b) a platform discount (if applicable) pursue nt to the terms
and conditions below governing such additional discounts.
Formula for both year 1 and year 2 desktop reference prices (using the initial
desktop count to determine the applicable select volume discount .'evels):
{ [ L + ( 3 x SA )] x 0.85 /3 }; less (a) an additional premium level discount
(if applicable); less (b) a platform discount (if applicable) pursuant to the
terms and conditions below governing such additional discounts.
Formula for year 3 desktop reference price:
{ 3-year desktop reference price - year 1 desktop reference price - year 2
desktop reference price}
(ii) for orders of Software Assurance on an initial order made pursuam to a renewal
enrollment, the initial annual reference prices shall be calculated according to the
following formulas:
Formula for 3-year desktop reference price (using the horizon dE1sktop count to
determine the applicable select volume discount levels):
{ ( 3 x SA ) x 0.95 }; less (a) an additional premium lel'el discount (if
applicable); less (b) a platform discount (if applicable) pursuant to the terms
and conditions below governing such additional discounts.
Formula for both year 1 and year 2 desktop reference prices (using the initial
desktop count to determine the applicable select volume discount ,evels).'
{ SA x 0.95 }; less (a) an additional premium level discount (if applicable);
less (b) a platform discount (if applicable) pursuant to Ihe terms and
conditions below governing such additional discounts.
Formula for year 3 desktop reference price:
{ 3.year desktop reference price - year 1 desktop reference price - year 2
desktop reference price}
(iii) for orders of License & Software Assurance on the first anniversaiy true up order
made pursuant to either a renewal enrollment or a non-renewal 9nrollment, the
true up desktop reference price shall be calculated according to) the following
formula (using the initial desktop count to determine the applicablEl select volume
discount levels):
{ L + ( 2.5 x SA ) } x 0.85; less an additional premium le~'el discount (if
applicable); less a platform discount (if applicable) pursuant to the terms and
conditions below governing such additional discounts;
(iv) for orders of License & Software Assurance on the second annilfersary true up
order made pursuant to either a renewal enrollment or a non-rene Nal enrollment,
the true up desktop reference price shall be calculated according '0 the following
formula (using the initial desktop count to determine the applicablE! select volume
discount levels):
{ L + ( 1.5 x SA ) } x 0.85: less an additional premium le\'el discount (if
applicable); less a platform discount (if applicable) pursuant to the terms and
conditions below governing such additional discounts; and
SLG MBA Microsoft Enterprise Agreement
v6.0
(North America) July 1. 2002
Terms and Conditions
Page 17 of 24
(v) for orders of License & Software Assurance on the third annillersary true up
order made pursuant to either a renewal enrollment or a non-rene Hal enrollment,
the true up desktop reference price shaff be calculated according '0 the following
formula (using the initial desktop count to determine the applicablE! select volume
discount levels):
{ L + ( 0.5 x SA ) } x 0.85; less an additional premium le\'el discount (if
applicable); less a platform discount (if applicable) pursuant to the terms and
condffions below governing such additional discounts.
The results of each of the above calculations will be rounded to the nearesr penny.
(D) Additional discounts aDoIied to initial Drices for comlJOnents. After calculating initial
prices for each component enterprise product pursuant to the above formulas, the
followIng additional discounts may be applied to such prices, subject to the terms and
conditions below:
(a) A "premium level discount" will be applied to an enterprise product,
provided that the aggregate family desktop count that Cipplies to such
product is equal to or greater than 40,000 qualified desktops. The
amount of such premium level discount with respect to Initial price levels
shall be determined according to Table 1 in Addendum A, by matching
the initial desktop count for the applicable product family (as of the
annual pricing date which immediately precedes such annual pricing
period) with the applicable column under the heading "Premium Level
Discount.1# The amount of such premium level discount with respect to
horizon price levels shall be determined according /0 Table 1 in
Addendum A, by matching the horizon desktop count for the applicable
product family (as of the annual pricing date which immediately precedes
such annual pricing period) with the applicable column uncler the heading
"Premium Level Discount." Such premium level discount (if any) wiff be
applied before applying a platform discount (if any).
For example, if the year 1 annual reference price of a component product
in a non-renewal enrollment, before a premium levef aiscount and/or
platform discount is applied, is $100.00, and if the initial price level for
the product family for the applicable annual pricing perioc' is determined
to be the 80K premium level, then a correspondingoremium level
discount of 6% will be applied (i.e. a discount of 6 percent of $100.00. or
$6.00), such that the resulting Init/af annual reference price before the
platform discount is applied will be:
{$1oo.oo - $6.oo} = $94.00.
For another example, if the 3-year reference price of a component
product in a non-renewal enrolJment, before a premium level discount
and/or platform discount is applied, is $300.00, and if thl~ horizon price
level for the product family for the applicable annual pricing period is
determined to be the 60K premium level, then a correspo,1ding premium
Jevel discount of 4% will be applied (i.e. a discount 0' 4 percent of
$300.00, or $12.00), so the resulting 3-year reference p,ice before the
platform discount is applied will be:
{$300.00 - $12.00} = $288.00.
(b) A "platform discountn will be applied to component pla,'form products
(e.g. Microsoft Office Professional) ordered pursuant to platform
SLG MBA Microsoft Enterprise Agreement
v6.0
(North America) July 1, 2002
Tems and Conditions
Page 18 of 24
enrollments, but not to other enterprise products, if any, ir' such platform
enrollments (e.g. a platform discount would not apply to Microsoft
Project). Such premium level discount (if any) wilf be applied after
applying a premium level discount (if any), and shaff be as follows:
Such platform discounts are as follows:
(i) 15% for initial orders of License & Software Asst'rance on non-
renewal enroffments;
(ii) 5% for initial orders (but not true up orders' of Software
Assurance for renewal enrollments; and
(HI) 15% for true up orders of License & Software AsslJrance for both
renewal enrollments and non-renewal enroffments.
For example, if the year 1 desktop reference price of a component
product in a non-renewal platform enrollment, after the premium level
discount is applied, is $94.00, then a platform discount oJf 15% will be
applied (i.e. 15% of $94.00, or $14.10), so the resultino initial annual
reference price will be
{$94.oo - $14.10} = $79.90.
The results of each of the above discount calculations will be lOunded to the
nearest penny.
Platform discounts will be provided so long as they are made gen.~rally available
to all volume licensing customers. If the amount of such genorally available
platform discount is either increased, decreased, or eliminated, such increase,
decrease or elimination will apply to the annual pricing period which immediately
foffows such event.
(E) Annual orovision of referef)c8orices. Table 3 in Addendum A stows the initial
desktop reference prices, year 1 desktop reference prices, and year 2 des ktop reference
prices that shall apply during the first annual pricing period hereunde'. Table 4 in
Addendum A shows the true up desktop reference prices that shall apply during the first
annual pricing period hereunder. We will provide you with new initial annual reference
prices on or before the first day of each subsequent annual pricing period.
(F) Determination of ,st anniversary. 2><1 anniversarY. and endino orice levels. Upon
each annual pricing date, and for each prodrJr;t family, we wi/( both.'
(I) determine a volume discount level by matching the aggregate family desktop count
for such family (as of such annual pricing date) with the column marke<f "Annual Price
Level Name. " pursuant to Table 1 in Addendum A. Such volume discount level shall:
. be referred to hereafter as the "1S1 anniversary price level" with respect to
enrollments (if any) for which the first anniversary of their effective dates
falls during the annual pricing period which immediatelt follows such
annual pricing date; and
. be referred to hereafter as the ~ anniversary price levE/1" with respect
to enrollments (if any) for which the second anniversary of their effective
dates falls during the annual pricing period which immE'diately follows
such annual pricing date; and
(Ii) determine an "ending price level" with respect to enrollments for which the second
anniversary of their effective dates falls during the annual pricing period which
immediately follows such annual pricing date. Such ending price level shall be
SLG MBA Microsoft Enterprise Agreement
v6.0
(North America) July 1. 2002
Terms and Conditions
Page 19 of 24
determined according to the relationship between initial price level, 151 arrniversary price
level, and ~d anniversary price level, respectively, according to the following table:
SLG MBA Microsoft Enterprise Agreement
va.O
(North America) July 1, 2002
Terms and Conditions
Page 20 of 24
Annual Price Level Criteria: Examples with sample prlc:e levels:
Ifthe 1 at And the 2nd then the Initial 151 2nd Ending
anniversary anniversary ending Annual Anniversary Annivernary
price level price level price level Price Annual Price Annual Price Price
Is: Is; will be: level Level Level Level
the same as The initial
the initial any level price level BOK aOK Any Le'/el BOK
price level
the same or
Higher than higher than The first 120K or 120K or
the initial the first anniversary 80K higher higher 120K
price level anniversary price level
price level
lower than
the first
Higher than anniversary the second
the initial price level anniversary 60K 120K BOK aOK
price level but higher price level
than the
initial level
Higher than the same as
or lower than The initial
the initial the initial price level 80K 120K BOK or €,OK BOK
price level price level
-----
the same or
Lower than lower than The first
the initial the first anniversary 60K 40K 40K or 0 40K
price level anniversary price level
price level
higher than
the first
Lower than anniversary the second
the initial price level anniversary 60K D 40K 40K
price level but lower price level
than the
initial level
the same as
Lower than or higher The initial
the initial than the price level 60K D or 40K 60K or EOK 60K
price level initial price
level
For the purposes of the above table, one annual price level is "higher" than another
volume level if the minimum aggregate family desktop count requirement f,Jr such level is
greater than that for the second level. and one annual price level is "lower" than another
volume level if the minimum aggregate family desktop count requirement for such level is
SLG MBA Microsoft Enterprise Agreement
v6.0
(North America) July 1, 2002
Terms and Conditions
Page 21 of 24
lower than that for the second level. For example. the 40K Premium Levol is lower than
the 60K Premium Level, but is higher than Level D.
(G) Adjustments to year 3 desKtoD reference prices uoon sustained inCn'1BSe of ano.y.fiJ
Drice level.
The year 3 desktop reference prices of each enterprise product in eacll enrollment is
subject to reduction, provided that the ending price level for the applicable product family
has increased. relative to the horizon price level.
Such reduction in year 3 desktop reference price will be determined separately for each
product family, prior to the second anniversary of each enrollment's effactive date. based
upon adjustment multipliers determined pursuant to Table 2 In Addendum A. The
adjustment multiplier for each applicable product family on an enrollmenl is determined
pursuant to such table by findIng the intersection of (i) the column which corresponds to
the combination of initial price level and horizon prfce level, and (U) the fine which
corresponds to the ending price level.
To determine the adjusted year 3 desktop reference price for an enterprh.e product, the
adjustment multiplier applicable to each enterprise product will be ml.;/tiplied by the
originally calculated year 3 desktop reference price for such product, and the resulting
amount shall be rounded to the nearest Penny.
(H) Additional terms and conditions. You acknowledge and agree thaI there may be
certain instances in which the reference prices of certain enterprise proc'ucts in certain
enrollments executed by affiliates. whether under this Enterprise Agreeme'lt or otherwise
under a separate Enterprise Agreement or Enterprise Subscription agreE'menr. may be
adjusted in ways that vary from the adjustments agreed upon in Section 13(e)(2)(G),
pursuant to separate agreement between the enrolled affiliate and us. Such instances
may include, but are not limited to, those enrollments: (i) that were execuled prior to this
enterprise agreement; (U) that contain other enterprise products than tho.)e in the three
product families defined herein; (Iii) for which we negotiate a special payment schedule
such as a "ramped" installment payments; and (iv) for which a specIal price is negotiated
to match the equivalent Select reference price for sufficient licenses, suct as to account
for unexpired Upgrade Advantage and/or Software Assurance.
In the event that, in the absence of this Section 13(e), an enrolled affiliate would
otherwise qualify for a lower reference price. for one or more of its chcsen enterprise
products, than the corresponding reference price(s) for such enterprise product(s} as
determined pursuant to the terms and conditions hereof, the lower of the two reference
prices for each such enterprise product shall apply.
Reference prices are providfKI only for the purpose of comparison. Actual pricing and
payment terms will be determined by agreement between each enrolled affiliate and its
chosen reselfer. All adjustments to reference prices defined herein will correspond to a
proportional adjustment we will make to the reseller's confidential cost.
The State shall, in the normal course of business, post this agreement to the State's
MyFlorida.com websfte.
SLG MBA Microsoft Enterprise Agreement
v6.0
(North America) July'. 2002
Terms and Conditions
Page 22 of 24
Table 1: Volume level Determinations
Addendum A
EA/SeJect Premium
Horizon Deaktop Count or Price List Levef
Initial Desktop Count Annual Price Lavel Name Volume Level Discount
Below 40.000 Level D LevelD NlA
40.000 . 59.199 40K Premium Level Level 0 2,0010
60,000 . 19,999 60K Pl'9mium Level Level 0 4.0%
80,000.119,999 BOK Premium Level Level 0 6.0%
t2O,000 - 299.999 120K Premium Level LevelD 7.5%
300,000 - 499,999 300K Premium Level LevelD 9.0%
500,000 or more 500K Premium Level Level D 10,0%
Table 2: Munlpllers to apply to "ramJl'ld" Vear 3 price:
8
~S
!
I.AMtI
Horizon.PrIoe l.evltl
LewI D
40K Pmrdum l.evltl
&OK PMntum I.AMIl
lIOK Prtmlum f.8\Iel
1. Pl1Imium l.evltl
lOOK Premium lAMll
500K Premium I..fMIl
i-
tJof
c:,3
!
lnltlal PtIoe Level
Horizon Price l.eWtl
IAwl D
40K Premium I..fMIl
601<. Premium Level
SOl( PremIum lAMll
,_ Premium l.ewl
lOOK PremJum LewI
5UOK P'Htlum l.ewl
8
~l
Ii)
c:
w
lnlthll Price LlMtI
HOrizon PrIoe Uv9I
IA\IeID
40K PremIum .....,.,
801( Pl'lltl'llum l.ewl
lOt( PremIum lAw"
t _ PremIum l.ewl
3OCM( PremIum l.InIeI
lOOK Premium l.InIeI
I
Q.J
1.3
i
w
UlWI
Horizon Price LlMtI
..... 0
40K PNmlum LlMtI
6ft( PmnIum lA\IeI
&OK PI'emlum L.lmIl
120K .Pr'IItIWm l.ewl
IOOKPntmlum Level
50tnc Premium Level
D
I)
1.000
0940
0.880
0820
0.715
0.730
0.700
lIOK
40K
1.000
1000
0.943
0.887
0844
0.802
0.714
,_
120K
1000
1.000
1.000
1000
1000
0.951
0.919
500K
D
1.000
0950
0.900
0,850
0813
0.775
G.75()
40K
o
1000
0942
0.885
0.827
0.784
0.740
0.712
SOle
&OK
1.000
1.000
1.000
0940
0895
0.850
0.820
lOOK
o
1.000
0949
0898
Oa47
OJlO9
0771
0146
5001(
40K
1000
1000
0.947
0.695
0855
0816
0.789
SLG MBA Microsoft Enterprise Agreement
v6.0
(North America) July 1, 2002
40K
40K
1.000
1000
0.939
0.878
0832
0786
0.755
&OK
tot<
1<000
1.000
1000
1000
0.952
0.904
0.872
SOOK
40K
1000
1.000
0.948
0893
0853
0813
0.186
SOOK
tot<
1.000
1.000
1.000
0.944
0.903
0.861
a.833
&OK
o
1.000
0944
0889
0.833
0.792
0.750
0722
1201(
D
1.000
0948
0.896
0843
0.804
0.165
0.739
300K
&OK
1000
1.000
1.000
0943
0.901
0.858
0.830
SOOK
&OK
1.000
1.000
1.000
1.000
0956
0.912
0.882
Terms and Conditions
&OK
40K
1.000
1000
0.941
0882
0838
0194
0165
1201(
40K
1 000
1.000
0.945
0.890
0,849
0..807
0780
801(
1000
1000
1000
1000
0955
0.910
0880
5001(
,_
1.000
1000
1..000
1000
1000
0.954
0.923
&OK
&OK
1000
1000
1.000
0.938
0891
0844
0.813
1201(
6OK.
1000
1000
1.000
0942
0898
0854
0825
3001(
1201(
1000
1.000
1000
1000
1.000
0953
0.921
500K
300K
1000
1.000
1.000
1.000
1.000
1.000
0.968
&OK
I)
11)00
0.946
0893
0.839
0.199
0.759
0732
120k
80K
1.000
1.000
1 .::>00
1000
0954
0007
0.1I7!;
3OOf(
3001(
, )00
1)00
1 )00
1)00
1:)00
1:>00
0967
IIOOK
5001(
1.::>00
1.000
1000
1000
1000
1.000
1.)00
Page 23 of 24
Abddendum A (Continued)
Table 3: Per-Desktop Reierence Prices for Initial Orele,. Under Enrollment. During the '.t AnnUllI Pricing PerIod
The following reference prices Brit calculated pursuant to Section 12(d}. using an BOK Initial Price Level and 1\11 BOK Horizon Price Level, wtlil:h are
based on the tollowing desktop counts as of the 1 st annual pricing date. none of whiCh are scheduled to expire by the second annual pricing Ijate
kqm e~e En~eolS I ~:3881 W:;'I I
CAL I
ll4.221
~ !ItrolImanla
~~ Renna! lWol\IIlMIma
301'_ Ye. 1 y_z 'I.." ;JoT_ Y_l Ye"if ,._3
~ 0eft'IIlp 0Mld0p 0uIdap o.k1op Deaktop 0.&lD9 08allt0p
A___ l'lettnInce "-'-- JIle*- JIlefw_ A4t"- AR_ R....""
"'- Ptb "'lot "'lot.. Pttoe Pttoe PrIce Prlee ..
8_umoe CAI. 301HZ 100.1. l00.t. 100 I. 144 111 48.22 46.Z! <ill:!.:!
"'eCAI. 21853 n.la 72.\8 7211 1()448 34.83 ~83 :104.62
CA1. 1'211 24 .24 2424 2423 3483 1161 11111 '161
0flIce Pro 534 53 178.18 17818 17e 17 m.82 92.11' 92.117 lr.'e&
JQft1N l$td 443 4.5 ,.782 I.'.1l2 t4781 23038 16110 1680 1'6'/'l1
p.ll\aI1IPolIrt CAI. 1HIO 2583 2'5S3 =1= 37111 12.50 1250 42.51
ISM$ CAI. 01<17. 1491 '..1l1 2143 714 7.14 715
ISOlCAI.. 16140 5380 53.80 :92 7lfflS 25.00 2580 lt5.$
1"'_ CAl.. 3210 10.12 10.12 1807 536 536 535
I"'~ 18100 53.93 5303 6394 11520 3lI.4U 3840 ,840
Pl.Il:forJn ~_.....
Ho&""'-al Eftrollmema ~ twol.....
:JoY_ 'I_I Y_Z V_I 30'1_ 1'_, 1'_2 '1_3
08allt0p 0..1ltop 0uIdap DMlltop Dukt.op 0uIdap o.kIop 0..1\'1""
Rlt.......c. tile"'- ,..,...- ~ ~ ReflIno,," 1leIII.....c:e fttrleret_
PrIce p....,. PrIce "'lot.. Pttoe Prk:e "'Ice Ptlee -
CAt. 255 :Ill as 12 8,;.12 e.s 12 13744 '15111 45111 451!2
eo.. CAI. 18400 51 J5 61.36 8135 91l2!l :!:lOll 3300 ~.~
E-. CAL 61&0 20&0 2000 2000 33011 11.03 lUlJ 1103
S 45.. 35 151."5 lS1.5 '5145 2546-9 1I6 23 lISlJ lltl2'3
31ll 93 12585 lZ!.6$ 125 &3 218.117 nll6 71U16 1';! at')
CAl 65illl 21M Ull6 21 tl6 3663 1188 11 88 11 61
3600 12.67 1267 12119 2036 G711 G 76 llGO
SOL CAI. 137 lQ 45.13 4573 4513 138' 2<16' 24.61 245-9
Wl,",- CAL. 21 as 928 9.21\ 929 1521 5.011 5011 500
131 53 45.54 4.'IM 45.1l!'i lOll. oW "'.48 36.48 :JIUIl'
.. Note thai the Year 3 Desktop re'lffance Price Is subject to reduction In certain cases. pursuant to the terms and condttions 01 Section 12(d).
Table 4: Per Desktop True Up Reference Prices for Enrollmen'- Under Enrollments During lhe 1.t Annual Pric;lng Period
flkm.Plalloon EntalImenl$ Pllllfllml E~rQ
I. JIId Srd ,. 2". 3rd
Ann""""" AnnlYwAfY AnnMtuty ~ Ann'-"ry ....~
Tr. Up Tr. Up Tr. Up T,. Up Tr. Up Trw Up
l)Mltlop OW_JI CleUtoj) 0Qld0p 0UIIlDp 0._
rw.r- ReflmltI~ R.......ce Atfw_ ~ ,..--
Price Pt10e Pra Prlot Prlce Pra
e. 218 .8$ m.1'1 1tr.!.li6 Z31l)2 2tlll35 1l!36&
eo.. CAI. iIOOlI5 1119.79 lJIll13 17081 1;t4 32 117.'"
e_-..cAl.. 61.$2 S113 467. 57.39 48.56 39.13
IatlloePro 4ll1! !l8 409. 326.79 .'9.03 ~&.41 2T111
IOtIloe Slid 4llII 09 340.37 211.56 34173 28931 ZlOlll
~Olnt CAL. 71 9t 60.72 4ll.S4 61.12 5161 Gtl
sua CAL 41 sa 3816 28.16 3632 2989 2U.5
SOL CAI. 14981 1211&4 103.41 t2'1.34 107.84 8195
w IrtdowlI CAl 3036 21l.57 2011 2581 217'3 11ll.$
roH.6Z 110.26 nI.9t tZZ.fl3 93.72 &4.52
SLG MBA MiCrosoft Enterprise Agreement
ve.O
(North America) July 1. 2002
Terms and Conditions
Page 24 of 24