HomeMy WebLinkAboutAgenda - 06-18-2013 - 5lORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 18, 2013
Action Agenda
Item No. 5 -1
SUBJECT: Orange Grove Station #3 Finance Agreement
DEPARTMENT: Emergency Services PUBLIC HEARING: (Y /N) No
ATTACHMENT(S): (Under Separate
Cover)
Finance Agreement for Orange Grove
Station #3
INFORMATION CONTACT:
James E. Groves, 245 -6140
Bill Waddell; 454 -8089
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PURPOSE: To authorize the Chair to sign the Orange Grove Finance Agreement document for
Station #3 (There is no financial involvement or obligation to the County by signing the
document.).
BACKGROUND: On March 13, 2012 the BOCC unanimously approved construction of Orange
Grove Fire Company stations #2 and #3 in the Cane Creek Fire District, and associated
vehicles and equipment needed to outfit each station. SunTrust Equipment Finance and
Leasing Corporation is requesting that the Chief Elected Official sign the financing document for
Station #3 certifying that Orange Grove Fire Company provides fire protection services within
Orange County.
It should be noted that Orange Grove has not yet received zoning and other planning related
approvals for Station #3 from the County Planning and Inspections Department.
FINANCIAL IMPACT: There is no financial impact or obligation.
RECOMMENDATION(S): The Manager recommends that the Board approve the
recommendation from the Emergency Services Director to authorize the Chair to sign the
Orange Grove Finance Agreement document for Station #3.
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ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.
INDEX TO LEGAL DOCUMENTS
BANK - QUALIFIED ESCROW
Master Lease Agreement; Lease Number 09065, Dated as of June 3, 2013;
Rider No. 01 -
Exhibit A - Equipment Schedule No. 01;
Acceptance Certificate;
Payment Schedule;
Exhibit B - Tax Agreement and Arbitrage Certificate;
Exhibit C - Resolution of Governing Body;
Exhibit D - Incumbency Certificate;
Exhibit E - Opinion of Counsel;
Exhibit F - Escrow Agreement, with its Schedule A;
Exhibit G -I Confirmation of Outside Insurance;
Exhibit G -2 Questionnaire for Self- Insurance to Lease and Addendum;
UCC Financing Statements with attached Schedule A;
Form 8038 -G;
Chief Elected Executive Officer's Approval;
Notice of Public Hearing;
Ad in newspaper for Public Hearing;
Firefighting Services Agreement; and
Add — Letter of Verification.
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SUNTRUST EQUIPMENT FINANCE & LEASING CORP.
MASTER LEASE AGREEMENT
LEASE NUMBER 09065
This MASTER LEASE AGREEMENT (the "Agreement"), dated as of June 3, 2013 is made and entered into by and between
SUNTRUST EQUIPMENT FINANCE & LEASING CORP., a Virginia corporation, as lessor ( "Lessor"), and ORANGE GROVE
VOLUNTEER FIRE COMPANY, INC., a qualified volunteer fire company within the meaning of Section 150(e)(2) of the Internal
Revenue Code of 1986, as amended, (the "Code ")of the State of North Carolina, as lessee ( "Lessee ").
In consideration of the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS AND EXHIBITS
Section I.I. Definitions. The following terms have the meanings specified below.
"Acceptance Certificate" means each Acceptance Certificate delivered by Lessee as part of an Equipment Schedule certifying as to the
delivery, installation and acceptance of Equipment.
"Agreement" means this Master Lease Agreement and all Equipment Schedules hereto.
"Agreement Date" means the date first written above.
"Code" means the Internal Revenue Code of 1986, as amended, together with Treasury Regulations promulgated from time to time
thereunder.
"Equipment" means all items of property described in Equipment Schedules and subject to this Agreement.
"Equipment Group" means each group of Equipment listed in a single Equipment Schedule.
"Equipment Schedule" means each sequentially numbered schedule executed by Lessor and Lessee with respect to an Equipment Group.
"Escrow Account" means the equipment acquisition account established by Lessor and Lessee with Escrow Agent pursuant to the Escrow
Agreement.
"Escrow Agent" means SUNTRUST BANK, a Georgia banking corporation, and any successor escrow agent under the Escrow
Agreement.
"Escrow Agreement" means the Escrow Agreement, substantially in the form of Exhibit F hereto, to be executed by Lessor, Lessee an
Escrow Agent upon the first funding of an Equipment Schedule using the procedure described in Section 2.4.
"Events of Default" means those events described in Section 12.1.
"Fiscal Year" means each 12 -month fiscal period of Lessee.
"Funding Date" means, with respect to each Lease, the date Lessor makes payment to the Vendor(s) named in the related Equipment
Schedule or reimburses Lessee for the purchase price of the related Equipment Group or, if the procedure described in Section 2.4 is
utilized, the date Lessor deposits funds equal to such purchase price into the Escrow Account.
"Interest" means the portion of a Rental Payment designated as and comprising interest as provided in a Payment Schedule.
"Lease" means, with respect to each Equipment Group, this Agreement and the Equipment Schedule relating thereto, which together shall
constitute a separate contract between Lessor and Lessee relating to such Equipment Group.
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"Lease Date" means, with respect to each Lease, the date so designated in the related Equipment Schedule.
"Lease Tenn" means, with respect to each Equipment Group, the period during which the related Lease is in effect as specified in Section
3.1.
"Net Proceeds" means any insurance proceeds or condemnation awards paid with respect to any Equipment remaining after payment
therefrom of all expenses incurred in the collection thereof.
"Payment Date" means each date upon which a Rental Payment is due and payable as provided in a Payment Schedule.
"Payment Schedule" means the schedule of Rental Payments attached to an Equipment Schedule.
"Principal" means the portion of any Rental Payment designated as and comprising principal as provided in a Payment Schedule.
"Prepayment Price" means the amount so designated for each Payment Date in a Payment Schedule indicating the amount for which Lessee
may purchase the related Equipment Group on such Payment Date after making the Rental Payment due on such Payment Date.
"Rental Payment" means each payment due from Lessee to Lessor on a Payment Date.
"Specifications" means the bid specifications and /or purchase order pursuant to which Lessee has ordered any Equipment from a Vendor.
"State" means the state or commonwealth in which Lessee is situated.
"Vendor" means each of the manufacturers or vendors from which Lessee has ordered or with which Lessee has contracted for the
manufacture, delivery and /or installation of the Equipment.
Section 1.2. Exhibits.
Exhibit A: Equipment Schedule including form of Acceptance Certificate and form of Payment Schedule.
Exhibit B: Forth of Tax Agreement and Arbitrage Certificate (Escrow).
Exhibit C: Form of Resolution of the Governing Body of Lessee relating to each Lease (Escrow).
Exhibit D: Form of Incumbency Certificate as to each officer or representative of Lessee executing this Agreement or any Lease.
Exhibit E: Form of Opinion of Counsel to Lessee.
Exhibit F: Form of Escrow Agreement.
Exhibit G -1: Form of Confirmation of Outside Insurance.
Exhibit G -2: Form of Questionnaire for Self- Insurance and Addendum to Equipment Schedule Relating to Self- Insurance.
ARTICLE II. LEASE OF EQUIPMENT
Section 2.1. Acquisition of Equipment. Prior to the addition of any Equipment Group, Lessee shall provide Lessor with a description of
the equipment proposed to be subject to a Lease hereunder, including the cost and vendor of such equipment, the expected delivery date
and the desired lease terms for such equipment, and such other information as Lessor may require. If Lessor, in its sole discretion,
determines the proposed equipment may be subject to a Lease hereunder, Lessor shall furnish to Lessee a proposed Equipment Schedule
relating to the Equipment Group for execution by Lessee and then Lessor. By execution hereof, Lessor has made no commitment enter any
Lease or to lease any equipment to Lessee. The decision whether Lessor enters into any Lease shall be solely within Lessor's discretion.
Section 2.2. Disbursement. Lessor shall have no obligation to make any disbursement to a Vendor or reimburse Lessee for any payment
made to a Vendor for an Equipment Group (or, if the escrow procedure described in Section 2.4 hereof is utilized, consent to a
disbursement by Escrow Agent) until five (5) business days after Lessor has received all of the following in form and substance satisfactory
to Lessor: (a) a completed Equipment Schedule executed by Lessee; (b) a completed Acceptance Certificate in the form included with
Exhibit A hereto executed by Lessee; (c) a certified copy of a resolution or evidence of other official action taken by or on behalf of Lessee
to authorize the acquisition of the Equipment Group on the terms provided in such Equipment Schedule; (d) a Tax Agreement and
Arbitrage Certificate in the form of Exhibit B attached hereto executed by an authorized official of Lessee; (e) evidence of insurance with
respect to the Equipment Group in compliance with Article VII of this Agreement; (f) Vendor invoice(s) and /or bill(s) of sale relating to
the Equipment Group in form and substance satisfactory to Lessor, and /or if such invoices have been paid by Lessee, evidence of payment
thereof and evidence of official intent to reimburse such payment as required by the Code; (g) financing statements naming Lessee as
debtor and /or the original certificate of title or manufacturer's certificate of origin and title application, if any, for any Equipment which is
part of such Equipment Group and is subject to certificate of title laws; (h) a fully completed and executed Form 8038 -G or 8038 -GC, as
applicable; (i) an opinion of counsel to Lessee substantially in the form of Exhibit E hereto, (j) evidence of payment and performance
bonds required by the Equipment Schedule, if applicable, and (k) any other documents or items reasonably required by Lessor. In
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addition, any such disbursement by Lessor shall be subject to (a) no Event of Default having occurred and (b) no material adverse change
in Lessee's business, assets, operations, financial condition or results of operations.
Section 2.3. Lease; Possession and Use. Lessor hereby leases the Equipment to Lessee, and Lessee hereby leases the Equipment from
Lessor, upon the terms and conditions set forth herein. Lessee shall have quiet use and enjoyment of and peaceably have and hold each
Equipment Group during the related Lease Term, except as expressly set forth in this Agreement.
Section 2.4. Escrow Procedure. If Lessor and Lessee agree that the cost of an Equipment Group is to be paid from an Escrow Account:
(a) Lessor and Lessee shall execute an Escrow Agreement substantially in the form of Exhibit F; (b) Lessor and Lessee shall execute an
Equipment Schedule relating to such Equipment Group; and (c) Lessor shall deposit an amount equal to the cost of the Equipment Group
into the Escrow Account. All amounts deposited by Lessor into the Escrow Account shall constitute a loan from Lessor to Lessee which
shall be repaid by the Rental Payments due under the related Lease.
Section 2.5 Limited Obligation. (a) THE PARTIES INTEND THAT THIS TRANSACTION COMPLY WITH SECTION 160A -20.
NO PROVISION OF THIS AGREEMENT SHALL BE CONSTRUED OR INTERPRETED AS CREATING A PLEDGE OF THE
DISTRICT'S FAITH AND CREDIT WITHIN THE MEANING OF ANY CONSTITUTIONAL DEBT LIMITATION. NO
PROVISION OF THIS AGREEMENT SHALL BE CONSTRUED OR INTERPRETED AS A DELEGATION OF GOVERNMENTAL
POWERS OR AS AN IMPROPER DONATION OR A LENDING OF THE LESSEE'S CREDIT WITHIN THE MEANING OF THE
STATE CONSTITUTION. NO DEFICIENCY JUDGEMENT MAY BE RENDERED AGAINST THE LESSEE IN VIOLATION OF
SECTION 160A -20. No provision of this Agreement shall be construed to pledge or to create a lien on any class or source of the Lessee's
moneys (other than the funds held under the Escrow Agreement or this Agreement), nor shall any provision of this Agreement restrict the
future issuance of any of the Lessee's bonds or obligations payable from any class or source of the Lessee's moneys (except to the extent
this Agreement restricts the incurrence of additional obligations secured by the Equipment). To the extent of any conflict between this
Section and any other provision of this Agreement, this Section shall take priority. (b) Nothing in this Section is intended to impair or
prohibit Lessor from exercising its security interest in the Equipment in the event there is a Default under this Agreement or the Escrow
Agreement.
ARTICLE 111. TERM
Section 3.1. Term. This Agreement shall be in effect from the Agreement Date until a termination under Section 12.2. Each Lease with
respect to an Equipment Group shall be in effect for a Lease Term commencing upon the Lease Date and ending as provided in Section
3.2.
Section 3.2. Termination of Lease Term. The Lease Tenn with respect to any Lease will terminate upon the occurrence of the first of
the following events: (a) the payment of the Prepayment Price by Lessee pursuant to Article V; (b) an Event of Default by Lessee and
Lessor's election to terminate such Lease pursuant to Article XII; or (c) the payment of all Rental Payments by Lessee and all other
amounts required to be paid by Lessee pursuant to such Lease.
ARTICLE IV. RENTAL PAYMENTS
Section 4.1. Rental Payments. Lessee agrees to pay the Rental Payments due as specified in the Payment Schedule set forth in Exhibit A.
A portion of each Rental Payment is paid as Interest as specified in the Payment Schedule of each Lease, and the first Rental Payment will
include Interest accruing from the Funding Date. Lessor is authorized to insert the due date of the first Rental Payment in the Payment
Schedule in Exhibit A. All Rental Payments shall be paid to Lessor at such places as Lessor may from time to time designate by written
notice to Lessee. Lessee shall pay the Rental Payments with lawful money of the United States of America from moneys legally available
therefor.
Section 4.2. General Obligation and Pledge. The obligations of Lessee, including its obligation to pay the Rental Payments and all
other amounts hereunder, shall constitute a general obligation of Lessee and is not subject to annual appropriation. Lessee hereby pledges
its full faith and credit and taxing power to the payment of all Rental Payments and other amounts payable hereunder. Lessee hereby
covenants to levy and collect such taxes as and when such taxes become necessary in order to provide sufficient funds to pay the Rental
Payments and all other amounts payable hereunder.
Section 4.3. Unconditional Rental Pavments. Lessee's obligation to make Rental Payments and any other payments required hereunder
shall be absolute and unconditional. Lessee shall make these payments when due and shall not withhold any of these payments pending
final resolution of any disputes. Lessee shall not assert any right of set -off or counterclaim against its obligation to make these payments.
Lessee's obligation to make Rental Payments or other payments shall not be abated through accident, unforeseen circumstances, failure of
the Equipment to perform as desired, damage or destruction to the Equipment, loss of possession of the Equipment or obsolescence of the
Equipment, or the failure of Lessee, Lessee's governing body, or, if applicable, the governmental entity from which Lessee obtains its
operating and /or capital funds to appropriate money for Rental Payments. Lessee shall be obligated to continue to make payments required
of it by this Agreement if title to, or temporary use of, the Equipment or any part thereof shall be taken under exercise of the power of
eminent domain.
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ARTICLE V. OPTION TO PREPAY
Section 5.1. Option to Prepay. Lessee shall have the option to prepay its obligations under any Lease in whole but not in part on any
Payment Date for the then applicable Prepayment Price (which shall include a prepayment fee) as set forth in the related Payment
Schedule, provided there has been no Event of Default.
Section 5.2. Exercise of Option. Lessee shall give notice to Lessor of its intention to exercise its option not less than thirty (30) days
prior to the Payment Date on which the option will be exercised and shall pay to Lessor not later than such Payment Date an amount equal
to all Rental Payments and any other amounts then due or past due under the related Lease (including the Rental Payment due on the
Payment Date on which the option shall be effective) and the applicable Prepayment Price set forth in the related Payment Schedule. In the
event that all such amounts are not received by Lessor on such Payment Date, such notice by Lessee of the exercise of this option shall be
void and the related Lease shall continue in full force and effect.
Section 5.3. Release of Lessor's Interest. Upon receipt of the Prepayment Price in good funds with respect to any Equipment Group, the
Lease with respect to such Equipment Group shall terminate and Lessee shall become entitled to such Equipment Group AS IS, WHERE
IS, WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY LESSEE, except that such Equipment
Group shall not be subject to any lien or encumbrance created by or arising through Lessor.
ARTICLE VI. REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1. Representations and Warranties of Lessee. Lessee represents and warrants as of the Agreement Date and as of each Lease
Date as follows:
(a) Lessee is a state or qualified volunteer fire company within the meaning of Section 150(e) (2) of the Internal Revenue Code of
1986, as amended, (the "Code "), and does not derive its issuing authority from another entity and is not subject to financial control by
another entity and is not otherwise a subordinate entity of another entity within the meaning of Section 265(b) (3) of the Code, duly
organized and existing under the Constitution and laws of the State, and is authorized under the Constitution and laws of the State to enter
into this Agreement, each Lease and the transactions contemplated hereby and thereby, and to perform all of its obligations under this
Agreement and each Lease.
(b) The execution and delivery of this Agreement and each Lease have been duly authorized by all necessary action of Lessee's
governing body and such action is in compliance with all public approval, public bidding and other State and federal laws applicable to this
Agreement, each Lease and the acquisition and financing of the Equipment by Lessee.
(c) This Agreement and each Lease have been duly executed and delivered by and constitutes the valid and binding obligation of
Lessee, enforceable against Lessee in accordance with their respective terms.
(d) The execution, delivery and performance of this Agreement and each Lease by Lessee shall not (i) violate any State or federal law
or local law or ordinance, or any order, writ, injunction, decree, or regulation of any court or other governmental agency or body applicable
to Lessee, or (ii) conflict with or result in the breach or violation of any term or provision of, or constitute a default under, any note, bond,
mortgage, indenture, agreement, deed of trust, lease or other obligation to which Lessee is bound.
(e) There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency,
public board or body pending or, to the best of Lessee's knowledge, threatened against or affecting Lessee, challenging Lessee's authority
to enter into this Agreement or any Lease or any other action wherein an unfavorable ruling or finding would adversely affect the
enforceability of this Agreement or any Lease.
(t) No lease, rental agreement, lease- purchase agreement, payment agreement or contract for purchase to which Lessee has been a
parry at any time during the past ten (10) years has been terminated by Lessee as a result of non - payment of Rental Payments in any Fiscal
Year. No event has occurred which would constitute an event of default under any debt, revenue bond or obligation which Lessee has
issued during the past ten (10) years.
((g) Lessee has an immediate need for, and expects to make immediate use of, the Equipment, which need is not temporary or
expected to diminish during the applicable Lease Term. Lessee presently intends to continue each Lease hereunder for its entire Lease
Term and to pay all Rental Payments relating thereto.
Section 6.2. Covenants of Lessee. Lessee agrees that so long as any Rental Payments or other amounts due under this Agreement remain
unpaid:
(a) Lessee shall not install, use, operate or maintain the Equipment improperly, carelessly, in violation of any applicable law or
regulation or in a manner contrary to that contemplated by this Agreement. Lessee shall obtain and maintain all permits and licenses
necessary for the installation and operation of the Equipment. Lessee shall not, without the prior written consent of Lessor, affix or install
any accessory equipment or device on any of the Equipment if such addition would change or impair the originally intended functions,
value or use of such Equipment.
(b) Lessee shall provide Lessor access at all reasonable times to examine and inspect the Equipment and provide Lessor with such
access to the Equipment as may be reasonably necessary to perform maintenance on the Equipment in the event of failure by Lessee to
perform its obligations hereunder.
(c) Lessee shall not, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or
other claim with respect to the Equipment, other than the respective rights of Lessor and Lessee as herein provided. Lessee shall promptly,
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at its own expense, take such actions as may be necessary duly to discharge or remove any such claim if the same shall arise at any time.
Lessee shall reimburse Lessor for any expense incurred by Lessor in order to discharge or remove any such claim.
(d) Lessee will only use the Equipment will be used by only for the purpose of performing Lessee's essential governmental
functions.
(e) The person or entity in charge of preparing Lessee's budget will include in the budget request for each Fiscal Year the Rental
Payments to become due during such Fiscal Year, and will use all reasonable and lawful means available to secure available funds for such
Fiscal Year sufficient to pay all Rental Payments coming due therein.
(t) Lessee shall deliver to Lessor (i) annual audited financial statements within 180 days each Fiscal Year end; (ii) its annual budget
for the succeeding Fiscal Year when approved but not later than 45 days prior to its current Fiscal Year end; and (iii) such other financial
statements and information relating to the ability of Lessee to satisfy its obligations under this Agreement and each Lease as may be
reasonably requested by Lessor from time to time.
(g) Lessee shall promptly and duly execute and deliver to Lessor such further documents, instruments and assurances and take such
further action as Lessor may from time to time reasonably request in order to carry out the intent and purpose of this Agreement and to
establish and protect the rights and remedies created or intended to be created in favor of Lessor hereunder.
Section 6.3. Tax Related Representations, Warranties and Covenants.
(a) General. Lessee agrees that it will not take or fail to take any action that would cause the Interest portion of Rental Payments
under any Lease to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for federal income
tax purposes.
(b) Incorporation of Tax Agreement and Arbitrage Certificate. As of each Lease Date and with respect to each Lease, Lessee makes
each of the representations, warranties and covenants contained in the Tax Agreement and Arbitrage Certificate delivered with respect
to such Lease. Each such Tax Agreement and Arbitrage Certificate is incorporated herein and made a part of this Agreement.
(c) Event of Taxability. If Lessor either (i) receives notice, in any form, from the Internal Revenue Service or (ii) reasonably
determines, based on an opinion of independent tax counsel selected by Lessor, that Lessor may not exclude any Interest paid under any
Lease from its Federal gross income (each an "Event of Taxability"), Lessee shall pay to Lessor upon demand (x) an amount which, with
respect to Rental Payments previously paid and taking into account all penalties, fines, interest and additions to tax (including all federal,
state and local taxes imposed on the Interest due through the date of such event), will restore to Lessor its after -tax yield (assuming tax at
the highest marginal tax rate and taking into account the time of receipt of Rental Payments and reinvestment at the after -tax yield rate) on
the transaction evidenced by such Lease through the date of such event and (y) as additional Rental Payments to Lessor on each succeeding
Payment Date such amount as will maintain such after -tax yield to Lessor.
ARTICLE VII. INSURANCE AND RISK OF LOSS
Section 7.1. Liabilitv and Property Insurance. Lessee shall, at its own expense, procure and maintain continuously in effect during
each Lease Term: (a) public liability insurance for death or injuries to persons, or damage to property arising out of or in any way
connected to the Equipment sufficient to protect Lessor and its assigns from liability in all events, with a coverage of not less than
$1,000,000 per occurrence unless specified differently in the related Equipment Schedule, and (b) insurance against such hazards as Lessor
may require, including, but not limited to, all -risk casualty and property insurance, in an amount equal to the greater of the full replacement
cost of the Equipment or the applicable Prepayment Price.
Section 7.2. Workers' Compensation Insurance. If required by State law, Lessee shall carry workers' compensation insurance covering
all employees on, in, near or about the Equipment, and upon request, shall furnish to Lessor certificates evidencing such coverage
throughout the Lease Term.
Section 7.3. Insurance Requirements.
(a) Insurance Policies. All insurance policies required by this Article shall be taken out and maintained with insurance companies
acceptable to Lessor and shall contain a provision that thirty (30) days prior to any change in the coverage the insurer must provide written
notice to the insured parties. No insurance shall be subject to any co- insurance clause. Each insurance policy shall name Lessor and its
assigns as an additional insured party and loss payee regardless of any breach of warranty or other act or omission of Lessee and shall
include a lender's loss payable endorsement for the benefit of Lessor and its assigns. Prior to the delivery of Equipment, Lessee shall
deposit with Lessor evidence satisfactory to Lessor of such insurance and, prior to the expiration thereof, shall provide Lessor evidence of
all renewals or replacements thereof.
(b) Self Insurance. With Lessor's prior consent, Lessee may self - insure the Equipment by means of an adequate insurance fund set
aside and maintained for that purpose which must be fully described in a letter delivered to Lessor in forth acceptable to Lessor.
(c) Evidence of Insurance. Lessee shall deliver to Lessor upon acceptance of any Equipment evidence of insurance which complies
with this Article VII with respect to such Equipment to the satisfaction of Lessor, including, without limitation, the confirmation of
insurance in the form of Exhibit G -1 attached hereto together with Certificates of Insurance, when available, or the Questionnaire for Self -
Insurance and Addendum to Equipment Schedule Relating to Self- Insurance in the form of Exhibit G -2 attached hereto, as applicable.
Section 7.4. Risk of Loss. To the extent permitted by applicable laws of the State, as between Lessor and Lessee, Lessee assumes all risks
and liabilities from any cause whatsoever, whether or not covered by insurance, for loss or damage to any Equipment and for injury to or
death of any person or damage to any property. Whether or not covered by insurance, Lessee hereby assumes responsibility for and agrees
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to indemnify Lessor from all liabilities, obligations, losses, damages, penalties, claims, actions, costs and expenses, including reasonable
attorneys' fees, imposed on, incurred by or asserted against Lessor that relate to or arise out of this Agreement, including but not limited to,
(a) the selection, manufacture, purchase, acceptance or rejection of Equipment or the ownership of the Equipment, (b) the delivery, lease,
possession, maintenance, use, condition, return or operation of the Equipment, (c) the condition of the Equipment sold or otherwise
disposed of after possession by Lessee, (d) the conduct of Lessee, its officers, employees and agents, (e) a breach of Lessee of any of its
covenants or obligations hereunder, (f) any claim, loss, cost or expense involving alleged damage to the environment relating to the
Equipment, including, but not limited to investigation, removal, cleanup and remedial costs, and (g) any strict liability under the laws or
judicial decisions of any state or the United States. This provision shall survive the termination of this Agreement.
Section 7.5. Destruction of Equipment. Lessee shall provide a complete written report to Lessor immediately upon any loss, theft,
damage or destruction of any Equipment and of any accident involving any Equipment. Lessor may inspect the Equipment at any time and
from time to time during regular business hours. If all or any part of the Equipment is stolen, lost, destroyed or damaged beyond repair
( "Damaged Equipment"), Lessee shall within thirty (30) days after such event either: (a) replace the same at Lessee's sole expense with
equipment having substantially similar Specifications and of equal or greater value to the Damaged Equipment immediately prior to the
time of the loss occurrence, and otherwise satisfactory to Lessor, whereupon such replacement equipment shall be substituted in the
applicable Lease and the other related documents by appropriate endorsement or amendment; or (b) pay the applicable Prepayment Price
of the Damaged Equipment determined as set forth in the related Equipment Schedule. Lessee shall notify Lessor of which course of
action it will take within fifteen (15) days after the loss occurrence. If, within forty -five (45) days of the loss occurrence, (a) Lessee fails to
notify Lessor; (b) Lessee and Lessor fail to execute an amendment to the applicable Equipment Schedule to delete the Damaged
Equipment and add the replacement equipment or (c) Lessee has failed to pay the applicable Prepayment Price, then Lessor may, at its sole
discretion, declare the applicable Prepayment Price of the Damaged Equipment, to be immediately due and payable. The Net Proceeds of
insurance with respect to the Damaged Equipment shall be made available by Lessor to be applied to discharge Lessee' obligation under
this Section.
ARTICLE VIII. OTHER OBLIGATIONS OF LESSEE
Section 8.1. Maintenance of Equipment. Lessee shall notify Lessor in writing prior to moving the Equipment to another address and
shall otherwise keep the Equipment at the address specified in the related Equipment Schedule. Lessee shall, at its own expense, maintain
the Equipment in proper working order and shall make all necessary repairs and replacements to keep the Equipment in such condition
including compliance with State and federal laws. Any and all replacement parts must be free of encumbrances and liens. All such
replacement parts and accessories shall be deemed to be incorporated immediately into and to constitute an integral portion of the
Equipment and as such, shall be subject to the terms of this Agreement.
Section 8.2. Taxes. Lessee shall pay all taxes and other charges which are assessed or levied against the Equipment, the Rental Payments
or any part thereof, or which become due during the Lease Term, whether assessed against Lessee or Lessor, except as expressly limited by
this Section. Lessee shall pay all utilities and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the
Equipment, and all special assessments and charges lawfully made by any governmental body that may be secured by a lien on the
Equipment. Lessee shall not be required to pay any federal, state or local income, succession, transfer, franchise, profit, excess profit,
capital stock, gross receipts, corporate, or other similar tax payable by Lessor, unless such tax is made as a substitute for any tax,
assessment or charge which is the obligation of Lessee under this Section.
Section 8.3. Advances. If Lessee shall fail to perform any of its obligations under this Article, Lessor may take such action to cure such
failure, including the advancement of money, and Lessee shall be obligated to repay all such advances on demand, with interest at the rate
of 18% per annum or the maximum rate permitted by law, whichever is less, from the date of the advance to the date of repayment.
ARTICLE IX. TITLE
Section 9.1. Title. During the Lease Term, ownership and legal title of all Equipment and all replacements, substitutions, repairs and
modification shall be in Lessee and Lessee shall take all action necessary to vest such ownership and title in Lessee. Lessor does not own
the Equipment and by this Agreement and each Lease is merely financing the acquisition of such equipment for Lessee. Lessor has not
been in the chain of title of the Equipment, does not operate, control or have possession of the Equipment and has no control over Lessee
or Lessee's operation, use, storage or maintenance of the Equipment.
Section 9.2. Securitv Interest. In order to secure Lessee's payment of all Rental Payments and the performance of all other obligations
hereunder, Lessee hereby grants to Lessor a continuing, first priority security interest in and to (a) the Equipment, all repairs, replacements,
substitutions and modifications thereto; (b) in all moneys and investments in the Escrow Account (if any); and (c) and all proceeds of the
foregoing. Lessee hereby authorizes Lessor to prepare and file such financing statements and other such documents to establish and
maintain Lessor's valid first lien and perfected security interest. Lessee will join with Lessor in executing such documents and will
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n
perform such acts as Lessor may request to establish and maintain Lessor's valid first lien and perfected security interest. Upon Lessor's
request, Lessee shall obtain, at Lessee's expense, a waiver of any interest in the Equipment from any landlord, mortgagee or any other
party holding an interest in the real property on which the Equipment is or will be located. Upon Lessor's request, Lessee shall
conspicuously mark the Equipment, and maintain such markings during the Lease Term, to clearly disclose Lessor's security interest in the
Equipment. Upon termination of a Lease through exercise of Lessee's option to prepay pursuant to Article V or through payment by
Lessee of all Rental Payments and other amounts due with respect to an Equipment Group, Lessor's security interest in such Equipment
Group shall terminate, and Lessor shall execute and deliver to Lessee such documents as Lessee may reasonably request to evidence the
termination of Lessor's security interest in such Equipment Group.
Section 9.4. Personal Property. The Equipment is and shall at all times be and remain personal property and not fixtures.
ARTICLE X. WARRANTIES
Section 10.1. Selection of Equipment. Each Vendor and all of the Equipment have been selected by Lessee. Lessor shall have no
responsibility in connection with the selection of the Equipment, the ordering of the Equipment, its suitability for the use intended by
Lessee, the acceptance by any Vendor or its sales representative of any order submitted, or any delay or failure by such Vendor or its sales
representative to manufacture, deliver or install any Equipment for use by Lessee.
Section 10.2. Vendor's Warranties. Lessor hereby assigns to Lessee for and during the related Lease Term, all of its interest, if any, in
all Vendor's warranties, guarantees and patent indemnity protection, express or implied issued on or applicable to an Equipment Group,
and Lessee may obtain the customary services furnished in connection with such warranties and guarantees at Lessee's expense. Lessor
has no obligation to enforce any Vendor's warranties or obligations on behalf of itself or Lessee.
Section 10.3. Disclaimer of Warranties. LESSEE ACKNOWLEDGES THAT THE EQUIPMENT IS OF A SIZE, DESIGN,
CAPACITY, AND MANUFACTURE SELECTED BY LESSEE. LESSEE ACKNOWLEDGES THAT IT SELECTED THE
EQUIPMENT WITHOUT ASSISTANCE OF LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR IS NOT A MANUFACTURER
OF THE EQUIPMENT OR A DEALER IN SIMILAR EQUIPMENT, AND DOES NOT INSPECT THE EQUIPMENT BEFORE
DELIVERY TO LESSEE. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO
THE VALUE, DESIGN, CONDITION, QUALITY, DURABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY LESSEE OF THE EQUIPMENT, OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE EQUIPMENT. IN NO EVENT SHALL LESSOR BE LIABLE
FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS
AGREEMENT OR THE EQUIPMENT OR LESSEE'S USE OF THE EQUIPMENT.
ARTICLE XI. ASSIGNMENT AND SUBLEASING
Section 11.1. Assisnment by Lessor. Lessor, without Lessee's consent, may assign and reassign all of Lessor's right, title and /or interest
in and to this Agreement or any Lease, including, but not limited to, the Rental Payments and other amounts payable by Lessee and
Lessor's interest in the Equipment, in whole or in part to one or more assignees or subassignee(s) by Lessor at any time. No such
assignment shall be effective as against Lessee unless and until written notice of the assignment is provided to Lessee. When presented
with a notice of assignment, Lessee will acknowledge in writing receipt of such notice for the benefit of Lessor and any assignee. Lessee
shall keep a complete and accurate record of all such assignments.
Section 11.2. Assisnment and Subleasim by Lessee. Neither this Agreement nor any Lease or any Equipment may be assigned,
subleased, sold, transferred, pledged or mortgaged by Lessee.
ARTICLE XII. EVENTS OF DEFAULT AND REMEDIES
Section 12.1. Events of Default Defined. The occurrence of any of the following events shall constitute an Event of Default under this
Agreement and each Lease:
(a) Lessee's failure to pay any Rental Payment or other amount required to be paid to Lessor within ten (10) days following the due
date thereof.
(b) Lessee's failure to maintain insurance as required by Article VII.
(c) With the exception of the above clauses (a) & (b), Lessee's failure to perform or abide by any condition, agreement or covenant
for a period of thirty (30) days after written notice by Lessor to Lessee specifying such failure and requesting that it be remedied, unless
Lessor shall agree in writing to an extension of time prior to its expiration.
(d) Lessor's determination that any representation, warranty or statement made by Lessee in or pursuant to this Agreement or any
Equipment Schedule was untrue in any material respect upon execution of this Agreement or any Equipment Schedule.
(e) The occurrence of an Event of Taxability.
(f) The filing of a petition in bankruptcy or receivership or similar proceeding by or against Lessee, or failure by Lessee promptly to
lift any execution, garnishment or attachment of such consequence as would impair the ability of Lessee to carry on its governmental
functions or assignment by Lessee for the benefit of creditors, or the entry by Lessee into an agreement of composition with creditors, or
the approval by a court of competent jurisdiction of any adjustment of indebtedness of Lessee, or the dissolution or liquidation of Lessee.
[(g) Lessee's failure to pay any indebtedness when due or Lessee's failure to perform any other obligation thereunder which gives
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10
the holder of such indebtedness the right to accelerate the indebtedness, the principal amount of such indebtedness constitutes at least
10% of Lessee's aggregate current long- and short -term indebtedness.]
Section 12.2. Remedies on Default. Upon the occurrence of any Event of Default, Lessor shall have the right, at its option and without
any further demand or notice to one or more or all of the following remedies:
(a) Lessor, with or without terminating this Agreement or any Lease, may declare all Rental Payments immediately due and payable
by Lessee, whereupon such Rental Payments shall be immediately due and payable.
(b) Lessor, with or without terminating this Agreement or any Lease, may repossess any or all of the Equipment by giving Lessee
written notice to deliver such Equipment in the manner provided in Section 12.3; or in the event Lessee fails to do so within ten (10) days
after receipt of such notice, Lessor may enter upon Lessee's premises where such Equipment is kept and take possession of such
Equipment and charge Lessee for costs incurred, including reasonable attorneys' fees. Lessee hereby expressly waives any damages
resulting from such repossession. If the Equipment or any portion has been destroyed, Lessee shall pay the applicable Prepayment Price of
the destroyed Equipment as set forth in the related Payment Schedule. Notwithstanding Lessor's repossession of the Equipment, Lessee
shall continue to be responsible for the payment of Rental Payments and all other amounts payable hereunder.
(c) If Lessor terminates this Agreement and /or any Lease and, in its discretion, takes possession and disposes of any or all of the
Equipment, Lessor shall apply the proceeds of any such disposition to pay the following items in the following order: (i) all costs
(including, but not limited to, attorneys' fees) incurred in securing possession of the Equipment; (ii) all expenses incurred in completing the
disposition; (iii) any sales or transfer taxes; (iv) the applicable Prepayment Prices of the Equipment Groups; and (v) the unpaid balance of
any Rental Payments and any other amounts payable hereunder. Any disposition proceeds remaining after the requirements of Clauses (i),
(ii), (iii), (iv) and (v) have been met shall be paid to Lessee.
(d) Lessor may take any other remedy available, at law or in equity, with respect to such Event of Default, including those requiring
Lessee to perform any of its obligations or to pay any moneys due and payable to Lessor and Lessee shall pay the reasonable attorneys'
fees and expenses incurred by Lessor in enforcing any remedy hereunder.
Section 12.3. Return of Equipment: Release of Lessee's Interest. Upon termination of any Lease prior to the payment of all related
Rental Payments or the applicable Prepayment Price, or after an Event of Default, Lessee shall, within ten (10) days after such termination,
at its own expense: (a) perform any testing and repairs required to place the related Equipment in the condition required by Article VIII; (b)
if deinstallation, disassembly or crating is required, cause such Equipment to be deinstalled, disassembled and crated by an authorized
manufacturer's representative or such other service person as is satisfactory to Lessor; and (c) return such Equipment to a location
specified by Lessor, freight and insurance prepaid by Lessee. If Lessee refuses to return such Equipment in the manner designated, Lessor
may repossess the Equipment without demand or notice and without court order or legal process and charge Lessee the costs of such
repossession. Upon termination of this Agreement in accordance with Article XII hereof, at the election of Lessor and upon Lessor's
written notice to Lessee, full and unencumbered legal title and ownership of the Equipment shall pass to Lessor. Lessee shall have no
further interest therein. Lessee shall execute and deliver to Lessor such documents as Lessor may request to evidence the passage of legal
title and ownership to Lessor and termination of Lessee's interest in the Equipment.
Section 12.4 Late Charge. Lessor shall have the right to require late payment charge for each Rental Payment or any other amount due
hereunder which is not paid within 10 days of the date when due equal to the lesser of 5% of each late payment or the legal maximum.
This Section is only applicable to the extent it does not affect the validity of this Agreement.
Section 12.5 No Remedv Exclusive. Each of the rights and remedies under this Agreement and each Lease is cumulative and may be
enforced separately or concurrently. No course of dealing or conduct between Lessor and Lessee shall be effective to amend, modify or
change any provisions of this Agreement or any Lease. No failure or delay by Lessor to insist upon the strict performance of any term,
covenant or agreement of the Agreement or any Lease, or to exercise any right, power or remedy consequent upon a breach thereof, shall
constitute a waiver of any such term, covenant or agreement or of any such breach, or preclude Lessor from exercising any such right,
power or remedy at any later time or times.
ARTICLE XIII. MISCELLANEOUS PROVISIONS
Section 13.1. Notices. All written notices to be given under this Agreement shall be given by mail to the party entitled thereto at its
address specified beneath each party's signature, or at such address as the party may provide to the other parties hereto in writing from time
to time. Any such notice shall be deemed to have been received 72 hours after deposit in the United States mail in registered or certified
form, with postage fully prepaid, or, if given by other means, when delivered at the address specified in this Section 13.1.
Section 13.2. Binding Effect. This Agreement and each Lease hereunder shall be binding upon and shall inure to the benefit of Lessor
and Lessee and their respective successors and assigns. Specifically, as used herein the term "Lessor" means any person or entity to whom
Lessor has assigned its right to receive Rental Payments under any Lease.
Section 13.3. Severabilitv. In the event any provision of this Agreement or any Lease shall be held invalid or unenforceable by any court
of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
Section 13.4. Entire Agreement; Amendments. This Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous writings, understandings, agreements, solicitation documents and
representations, express or implied. This Agreement may be amended or modified only by written documents duly authorized, executed
and delivered by Lessor and Lessee.
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11
Section 13.5. Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the
scope or intent of any provisions, Articles, Sections or Clauses hereof.
Section 13.6. Further Assurances and Corrective Instruments. Lessor and Lessee agree that they will, from time to time, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as
may reasonably be required for correcting any inadequate or incorrect description of the Equipment hereby leased or intended so to be, or
for otherwise carrying out the expressed intention of this Agreement. Lessee hereby authorizes Lessor to file any financing statement or
supplements thereto as may be reasonably required for correcting any inadequate description of the Equipment hereby leased or intended
so to be, or for otherwise carrying out the expressed intention of this Agreement
Section 13.7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State.
Section 13.8. Usurv. It is the intention of the parties hereto to comply with any applicable usury laws; accordingly, it is agreed that,
notwithstanding any provisions to the contrary herein or in any Equipment Schedule, in no event shall this Agreement or any Lease
hereunder require the payment or permit the collection of interest or any amount in the nature of interest or fees in excess of the maximum
amount permitted by applicable law. Any such excess interest or fees shall first be applied to reduce Principal, and when no Principal
remains, refunded to Lessee. In determining whether the interest paid or payable exceeds the highest lawful rate, the total amount of
interest shall be spread through the applicable Lease Term so that the interest is uniform through such term
Section 13.9. Lessee's Performance. A failure or delay of Lessor to enforce any of the provisions of this Agreement or any Lease shall in
no way be construed to be a waiver of such provision.
Section 13.10. Waiver of Jury Trial. Lessor and Lessee hereby waive any right to trial by jury in any action or proceeding with respect
to, in connection with or arising out of this Agreement.
Section 13.11. USA Patriot Act Compliance Notification. Lessor hereby notifies Lessee that pursuant to the requirements of the
USA PATRIOT Act (the "Act"), it is required to obtain, verify and record information that identifies Lessee, which information
includes the name and address of Lessee and other information that will allow Lessor to identify Lessor in accordance with the Act.
Lessee shall, promptly upon Lessor's request, provide all documentation and other information that Lessor requests in order to comply
with its ongoing obligations under applicable "know your customer" and anti -money laundering rules and regulations, including the
Act.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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EXECUTION PAGE OF MASTER LEASE AGREEMENT
LEASE NUMBER 09065
IN WITNESS WHEREOF, Lessor has caused this Agreement to be executed in its corporate name by its duly authorized officer, and
Lessee has caused this Agreement to be executed in its name by its duly authorized officer.
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.,
Lessee
By:
Name: Bill Waddell
Title: President
Address: 6800 Orange Grove Road
Hillsborough, NC 27278
Telephone: 919- 454 -8089
Facsimile: 919-942-5888
wjwaddell(a)gmail.com
5/16/ 2013: BQ- ESCfamtem.D0C /rev.01 /04.st1
SUNTRUST EQUIPMENT FINANCE &
LEASING CORP.,
Lessor
By:_
Name:
Title:
Address: 300 East Joppa Road, Suite 700
Towson, MD 21286
Telephone:
Facsimile:
Volunteer Fire Department
RIDER NO. 1
13
Attached to and made a part of that certain Master Lease Agreement (the "Agreement ") dated as of June 3, 2013, by and between
SUNTRUST EQUIPMENT FINANCE & LEASING CORP., as Lessor, and ORANGE GROVE VOLUNTEER FIRE COMPANY,
INC., as Lessee.
1. Lessee (i) is a qualified volunteer fire department within the meaning of Section 150(e)(2) of the Internal Revenue Code
of 1986, as amended, (the "Code "), organized and operated to provide firefighting or emergency medical services for persons in
County (the "Service Area ") which has no other fire - fighting services; and (ii) will do or cause to be done all things necessary
to preserve and keep in full force and effect its existence as such; (iii) is a party to a written agreement with County
( "Governmental Authority") to furnish firefighting services in the Service Area and (iv) the Governmental Authority has duly approved of
Lessee entering into the Agreement.
DATE:
All of the Equipment is either fire trucks, component parts thereof, or improvements to a fire house.
The parties agree that this Rider is an integral part of the Agreement.
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.
LESSOR
0
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.
LESSEE
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14
EXHIBIT A
EQUIPMENT SCHEDULE NO. 01
TO LEASE NO. 09065
The following Equipment comprises an Equipment Group which is the subject of the Master Lease Agreement dated as June 3,
2013 (the "Agreement ") between the undersigned Lessor and Lessee. The Agreement is incorporated herein in its entirety, and Lessee
hereby reaffirms each of its representations, warranties and covenants contained in the Agreement. Lessee warrants that no Event of
Default, or event which, with the passage of time or the giving of notice or both, would constitute an Event of Default, has occurred under
the Agreement. An Acceptance Certificate and Payment Schedule are attached to this Equipment Schedule and by reference are made a
part hereof. The terms capitalized in this Equipment Schedule but not defined herein shall have the meanings assigned to them in the
Agreement.
EQUIPMENT GROUP
The cost of the Equipment Group to be funded by Lessee under this Lease is $300,000.00(the "Acquisition Cost "). The
Equipment Group consists of the following Equipment which has been or shall be purchased from the Vendor(s) named below for the
prices set forth below:
Collateral of the Following Fire Apparatuses to Finance the Construction of its Third Substation:
Engine 531, 2004 Spartan, VIN #4S7HT2D994CO47206 with Accessories
Engine 532, 2001 International 4900, VIN #1HTSDADR71H354230 with Accessories
The Equipment Group is essential to the governmental functions of Lessee. The Equipment Group is or will be located at the
following address(es). Prior to relocation of the Equipment Group or any portion thereof during the Lease Term, Lessee will provide
written notice to Lessor:
Nick's Road, Mebane, NC 27302
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.,
Lessee
By:
Name: Bill Waddell
Title: President
Date:
Address: 6800 Orange Grove Road
Hillsborough, NC 27278
Telephone: 919- 454 -8089
Facsimile: 919-942-5888
13
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SUNTRUST EQUIPMENT FINANCE &
LEASING CORP.,
Lessor
By:_
Name:
Title:
Date:
Address: 300 East Joppa Road, Suite 700
Towson, MD 21286
Telephone:
Facsimile:
15
Lease No.: 09065
Equipment Schedule: 01
ACCEPTANCE CERTIFICATE
I, the undersigned, hereby certify that I am the duly qualified and acting officer of the Lessee identified below and, with respect to
the above referenced Equipment Schedule and Lease, that:
1. The Equipment described below has been delivered and installed in accordance with Lessee's specifications, is in good
working order and is fully operational and has been fully accepted by Lessee on or before the date indicated below:
2. Attached are (a) evidence of insurance with respect to the Equipment in compliance with Article VII of the Agreement; (b)
Vendor invoice(s) and /or bill(s) of sale relating to the Equipment, and if such invoices have been paid by Lessee, evidence of payment
thereof (evidence of official intent to reimburse such payment as required by the Code having been delivered separately by Lessee); and (c)
financing statements executed by Lessee as debtor and /or the original certificate of title or manufacturer's certificate of origin and title
application, if any, for any Equipment which is subject to certificate of title laws.
3. Rental Payments shall be due and payable by Lessee on the dates and in the amounts indicated on the Payment Schedule
attached to the Equipment Schedule. Such Rental Payments are a general obligation of Lessee.
4. Lessee hereby authorizes and directs Lessor to fund the Acquisition Cost of the Equipment by paying, or directing the payment
by the Escrow Agent (if applicable) of, the invoice prices to the Vendor(s), in each case as set forth above, or by reimbursing Lessee in the
event such invoice prices have been previously paid by Lessee.
5. 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 Lease) exists at the date hereof
6. Final Acceptance Certificate. This Acceptance Certificate constitutes final acceptance of all of the Equipment identified in
the Equipment Schedule described above. Lessee certifies that upon payment in accordance with paragraph 4 above, or direction to
Escrow Agent (if applicable) to make payment, Lessor shall have fully and satisfactorily performed all of its covenants and obligations
under the Lease. [CHECK BOX IF APPLICABLE.]
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.,
Lessee
By:
Name: Bill Waddell
Title: President
Date:
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16
Lease Number: 09065
Equipment Schedule: 01
PAYMENT SCHEDULE
The Funding Date with respect to the above referenced Equipment Group shall be June 3, 2013. Lessor shall retain any interest
or income accruing between the Funding Date and the date on which interest begins to accrue in accordance with the Payment
Schedule more fully set forth below. The annual Interest rate applicable to the Equipment Group shall be 3.20 %. Lessee will make Rental
Payments each consisting of Principal and Interest as set forth below. The first Rental Payment is due on July 3, 2013 and subsequent
payments are due monthlyannually as set forth below.
Payment
Payment
Payment
Principal
Interest
Prepayment
Number
Date
Amount
Component
Component
Price*
1
7/3/2013
3,991.09
3,191.09
800.00
296,808.91
2
8/3/2013
3,991.09
3,199.60
791.49
293,609.31
3
9/3/2013
3,991.09
3,208.13
782.96
290,401.18
4
10/3/2013
3,991.09
3,216.69
774.40
287,184.50
5
11/3/2013
3,991.09
3,225.26
765.83
283,959.23
6
12/3/2013
3,991.09
3,233.86
757.23
280,725.37
7
1/3/2014
3,991.09
3,242.49
748.60
277,482.88
8
2/3/2014
3,991.09
3,251.13
739.96
274,231.75
9
3/3/2014
3,991.09
3,259.80
731.29
270,971.94
10
4/3/2014
3,991.09
3,268.50
722.59
267,703.44
11
5/3/2014
3,991.09
3,277.21
713.88
264,426.23
12
6/3/2014
3,991.09
3,285.95
705.14
261,140.28
13
7/3/2014
3,991.09
3,294.71
696.38
257,845.56
14
8/3/2014
3,991.09
3,303.50
687.59
254,542.06
15
9/3/2014
3,991.09
3,312.31
678.78
251,229.75
16
10/3/2014
3,991.09
3,321.14
669.95
247,908.61
17
11/3/2014
3,991.09
3,330.00
661.09
244,578.61
18
12/3/2014
3,991.09
3,338.88
652.21
241,239.73
19
1/3/2015
3,991.09
3,347.78
643.31
237,891.95
20
2/3/2015
3,991.09
3,356.71
634.38
234,535.24
21
3/3/2015
3,991.09
3,365.66
625.43
231,169.57
22
4/3/2015
3,991.09
3,374.64
616.45
227,794.94
23
5/3/2015
3,991.09
3,383.64
607.45
224,411.30
24
6/3/2015
3,991.09
3,392.66
598.43
221,018.64
25
7/3/2015
3,991.09
3,401.71
589.38
217,616.94
26
8/3/2015
3,991.09
3,410.78
580.31
214,206.16
27
9/3/2015
3,991.09
3,419.87
571.22
210,786.29
28
10/3/2015
3,991.09
3,428.99
562.10
207,357.29
29
11/3/2015
3,991.09
3,438.14
552.95
203,919.16
30
12/3/2015
3,991.09
3,447.30
543.79
200,471.85
15
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17
CONTINUATION OF PAYMENT SCHEDULE
31
1/3/2016
3,991.09
3,456.50
534.59
197,015.36
32
2/3/2016
3,991.09
3,465.71
525.38
193,549.64
33
3/3/2016
3,991.09
3,474.96
516.13
190,074.68
34
4/3/2016
3,991.09
3,484.22
506.87
186,590.46
35
5/3/2016
3,991.09
3,493.51
497.58
183,096.95
36
6/3/2016
3,991.09
3,502.83
488.26
179,594.11
37
7/3/2016
3,991.09
3,512.17
478.92
176,081.94
38
8/3/2016
3,991.09
3,521.54
469.55
172,560.41
39
9/3/2016
3,991.09
3,530.93
460.16
169,029.48
40
10/3/2016
3,991.09
3,540.34
450.75
165,489.13
41
11/3/2016
3,991.09
3,549.79
441.30
161,939.35
42
12/3/2016
3,991.09
3,559.25
431.84
158,380.10
43
1/3/2017
3,991.09
3,568.74
422.35
154,811.35
44
2/3/2017
3,991.09
3,578.26
412.83
151,233.09
45
3/3/2017
3,991.09
3,587.80
403.29
147,645.29
46
4/3/2017
3,991.09
3,597.37
393.72
144,047.93
47
5/3/2017
3,991.09
3,606.96
384.13
140,440.96
48
6/3/2017
3,991.09
3,616.58
374.51
136,824.38
49
7/3/2017
3,991.09
3,626.22
364.87
133,198.16
50
8/3/2017
3,991.09
3,635.89
355.20
129,562.26
51
9/3/2017
3,991.09
3,645.59
345.50
125,916.67
52
10/3/2017
3,991.09
3,655.31
335.78
122,261.36
53
11/3/2017
3,991.09
3,665.06
326.03
118,596.30
54
12/3/2017
3,991.09
3,674.83
316.26
114,921.47
55
1/3/2018
3,991.09
3,684.63
306.46
111,236.84
56
2/3/2018
3,991.09
3,694.46
296.63
107,542.38
57
3/3/2018
3,991.09
3,704.31
286.78
103,838.07
58
4/3/2018
3,991.09
3,714.19
276.90
100,123.88
59
5/3/2018
3,991.09
3,724.09
267.00
96,399.79
60
6/3/2018
3,991.09
3,734.02
257.07
92,665.77
61
7/3/2018
3,991.09
3,743.98
247.11
88,921.78
62
8/3/2018
3,991.09
3,753.96
237.13
85,167.82
63
9/3/2018
3,991.09
3,763.98
227.11
81,403.84
64
10/3/2018
3,991.09
3,774.01
217.08
77,629.83
65
11/3/2018
3,991.09
3,784.08
207.01
73,845.75
1E
5/16/ 2013: BQ- ESCfamtem.DOC /rev.01 /04.st1
iu
CONTINUATION OF PAYMENT SCHEDULE
66
12/3/2018
3,991.09
3,794.17
196.92
70,051.59
67
1/3/2019
3,991.09
3,804.29
186.80
66,247.30
68
2/3/2019
3,991.09
3,814.43
176.66
62,432.87
69
3/3/2019
3,991.09
3,824.60
166.49
58,608.27
70
4/3/2019
3,991.09
3,834.80
156.29
54,773.47
71
5/3/2019
3,991.09
3,845.03
146.06
50,928.44
72
6/3/2019
3,991.09
3,855.28
135.81
47,073.16
73
7/3/2019
3,991.09
3,865.56
125.53
43,207.60
74
8/3/2019
3,991.09
3,875.87
115.22
39,331.73
75
9/3/2019
3,991.09
3,886.21
104.88
35,445.52
76
10/3/2019
3,991.09
3,896.57
94.52
31,548.96
77
11/3/2019
3,991.09
3,906.96
84.13
27,642.00
78
12/3/2019
3,991.09
3,917.38
73.71
23,724.62
79
1/3/2020
3,991.09
3,927.82
63.27
19,796.79
80
2/3/2020
3,991.09
3,938.30
52.79
15,858.50
81
3/3/2020
3,991.09
3,948.80
42.29
11,909.70
82
4/3/2020
3,991.09
3,959.34
31.75
7,950.36
83
5/3/2020
3,991.09
3,969.90
21.19
3,980.48
84
6/3/2020
3,991.09
3,980.49
10.60
0.00
Totals
335,251.56
300,000.00
35,251.56
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.,
Lessee
By:
Name: Bill Waddell
Title: President
Date:
* After payment of Rental Payment due on such date.
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[Escrow]
TAX AGREEMENT AND ARBITRAGE CERTIFICATE
19
EXHIBIT B -1
Lease Number: 09065
Equipment Schedule: 01
This TAX AGREEMENT AND ARBITRAGE CERTIFICATE (this "Certificate ") is executed and delivered by ORANGE GROVE
VOLUNTEER FIRE COMPANY, INC. ( "Lessee ") in favor of SUNTRUST EQUIPMENT FINANCE & LEASING CORP. and its
successors and assigns ( "Lessor ") in connection with that certain General Obligation Master Lease Agreement dated as of June 3, 2013 (the
"Agreement ") and the Equipment Schedule referenced above (the "Equipment Schedule "), each by and between Lessor and Lessee. The
terms capitalized herein but not defined herein shall have the meanings assigned to them in the Agreement.
Section 1. In General.
L L This Certificate is executed for the purpose of establishing the reasonable expectations of Lessee as to future events regarding the
financing of certain equipment (the "Equipment") to be acquired by Lessor and leased to Lessee pursuant to and in accordance with the
Agreement and the Equipment Schedule (together with all related documents executed pursuant thereto and contemporaneously herewith,
the "Financing Documents "). As described in the Financing Documents, Lessor shall apply $300,000.00(the "Principal Amount") toward
the acquisition of the Equipment and Lessee shall make Rental Payments under the terms and conditions as set forth in the Financing
Documents.
1.2. The individual executing this Certificate on behalf of Lessee is an officer of Lessee delegated with the responsibility of reviewing and
executing the Financing Documents, pursuant to the resolution or other official action of Lessee adopted with respect to the Financing
Documents, a copy of which has been delivered to Lessor.
1.3. The Financing Documents are being entered into for the purpose of providing funds for financing the cost of acquiring, equipping and
installing the Equipment which is essential to the governmental functions of Lessee, which Equipment is described in the Equipment
Schedule. The Principal Amount will be deposited in escrow by Lessor on the date of issuance of the Financing Documents and held by
SUNTRUST BANK, as escrow agent (the "Escrow Agent ") pending acquisition of the Equipment under the terms of that certain Escrow
Agreement dated as of June 3, 2013, (the "Escrow Agreement "), by and between Lessor and Escrow Agent.
1.4. Lessee will complete and timely file for each payment schedule issued under the Lease a Form 8038 -G (or, if the invoice price of the
Equipment under such schedule is less than $100,000, a Form 8038 -GC) relating to such Lease with the Internal Revenue Service in
accordance with Section 149(e) of the Internal Revenue Code of 1986, as amended (the "Code ").
1.5. Lessee has not issued, and reasonably anticipates that it and its subordinate entities, if any, will not issue, tax- exempt obligations
(including the Lease) in the amount of more than $10,000,000 during the current calendar year. Lessee hereby designates the Lease as a
"qualified tax- exempt obligation" within the meaning of Section 265(b)(3) of the Code and agrees that it and its subordinate entities, if any,
will not designate more than $10,000,000 of their obligations as "qualified tax- exempt obligations" during the current calendar year.
Section 2. Non- Arbitrase Certifications.
2.1. The Rental Payments due under the Financing Documents will be made with monies retained in Lessee's general operating fund (or an
account or subaccount therein). No sinking, debt service, reserve or similar fund or account will be created or maintained for the payment
of the Rental Payments due under the Financing Documents or pledged as security therefor.
2.2. There have been and will be issued no obligations by or on behalf of Lessee that would be deemed to be (i) issued or sold within
fifteen (15) days before or after the date of issuance of the Financing Documents, (ii) issued or sold pursuant to a common plan of
financing with the Financing Documents and (iii) paid out of substantially the same source of funds as, or deemed to have substantially the
same claim to be paid out of substantially the same source of funds as, the Financing Documents.
2.3. Other than the Principal Amount held under the Escrow Agreement, Lessee does not and will not have on hand any funds that are or
will be restricted, segregated, legally required or otherwise intended to be used, directly or indirectly, as a substitute, replacement or
separate source of financing for the Equipment.
2.4. No portion of the Principal Amount is being used by Lessee to acquire investments which produce a yield materially higher than the
yield realized by Lessor from Rental Payments received under the Financing Documents. As used in this certificate, the term "yield" means
yield computed by the actuarial method using a 360 -day year and semi -annual compounding, resulting in a discount rate which, when
used in computing the present worth of all payments of principal and interest to be paid on an obligation, produces an amount equal to
the issue price, fair market value, present value or purchase price thereof, as applicable, and is determined in all respects in accordance
with Section 148 of the Code.
2.5. The Principal Amount does not exceed the amount necessary for the governmental purpose for which the Financing Documents were
entered into. Such funds are expected to be needed and fully expended for payment of the costs of acquiring, equipping and installing the
Equipment.
2.6. Lessee does not expect to convey, sublease or otherwise dispose of the Equipment, in whole or in part, at a date which is earlier than
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eff
the final Payment Date under the Financing Documents.
Section 3. Disbursement of Funds; Reimbursement to Lessee.
3.1. It is contemplated that the entire Principal Amount deposited in escrow will be used to pay the acquisition cost of Equipment to the
vendors or manufacturers thereof, provided that, if applicable, a portion of the principal amount may be paid to Lessee as reimbursement
for acquisition cost payments already made by it so long as the conditions set forth in Section 3.2 below are satisfied.
3.2. Lessee shall not request that it be reimbursed for Equipment acquisition cost payments already made by it unless each of the following
conditions have been satisfied:
(a) Lessee adopted a resolution or otherwise declared its official intent in accordance with Treasury Regulation § 1.150 -2 (the
"Declaration of Official Intent"), wherein Lessee expressed its intent to be reimbursed from the proceeds of a borrowing for all or a portion
of the cost of the Equipment, which expenditure was paid to the Vendor not earlier than sixty (60) days before Lessee adopted the
Declaration of Official Intent;
(b) The reimbursement being requested will be made by a written allocation before the later of eighteen (18) months after the
expenditure was paid or eighteen (18) months after the items of Equipment to which such payment relates were placed in service;
(c) The entire payment with respect to which reimbursement is being sought is a capital expenditure, being a cost of a type properly
chargeable to a capital account under general federal income tax principles; and
(d) Lessee will use any reimbursement payment for general operating expenses and not in a manner which could be construed as an
artifice or device under Treasury Regulation § 1.148 -10 to avoid, in whole or in part, arbitrage yield restrictions or arbitrage rebate
requirements.
Section 4. Use and Investment of Funds; Temporary Period.
4.1. Lessee has incurred or will incur, within six (6) months from the date of issuance of the Financing Documents, binding obligations to
pay an amount equal to at least five percent (5 %) of the Principal Amount toward the costs of the Equipment. An obligation is not binding
if it is subject to contingencies within Lessee's control. The ordering and acceptance of the items of Equipment will proceed with due
diligence to the date of final acceptance of the Equipment.
4.2. An amount equal to at least eighty -five percent (85 %) of the Principal Amount will be expended to pay the cost of the Equipment by
the end of the three -year period commencing on the date of this Certificate. No portion of the Principal Amount will be used to acquire
investments that do not carry out the governmental purpose of the Financing Documents and that have a substantially guaranteed yield in
excess of the yield on the Lease 4.3. (a) Lessee covenants and agrees that it will rebate an amount equal to excess earnings on the
Principal Amount deposited under the Escrow Agreement to the Internal Revenue Service if required by, and in accordance with, Section
148(f) of the Code, and make the annual determinations and maintain the records required by and otherwise comply with the regulations
applicable thereto. Lessee reasonably expects to cause the Equipment to be acquired by December 3, 2014.
(b) Lessee will provide evidence to Lessor that the rebate amount has been calculated and paid to the Internal Revenue Service in
accordance with Section 148(1) of the Code unless (i) the entire Principal Amount is expended on the Equipment by the date that is the six -
month anniversary of the Financing Documents or (ii) the Principal Amount is expended on the Equipment in accordance with the
following schedule: At least fifteen percent (15 %) of the Principal Amount and interest earnings thereon will be applied to the cost of the
Equipment within six months from the date of issuance of the Financing Documents; at least sixty percent (60 %) of the Principal Amount
and interest earnings thereon will be applied to the cost of the Equipment within 12 months from the date of issuance of the Financing
Documents; and one hundred percent (100 %) of the Principal Amount and interest earnings thereon will be applied to the cost of the
Equipment prior to eighteen (18) months from the date of issuance of the Financing Documents.
[(c) Lessee hereby covenants that (i) Lessee is a governmental unit with general tax powers; (ii) the Lease is not a `private activity bond"
under Section 141 of the Code; (iii) at least ninety -five percent (95 %) of the Principal Amount is used for the governmental activities of
Lessee; and (iv) the aggregate principal amount of all tax- exempt obligations (including the Lease) issued by Lessee and its subordinate
entities, if any, during the current calendar year is not reasonably expected to exceed $5,000,000. Accordingly, the rebate requirements of
Section 148(1) of the Code are treated as being met, in lieu of the spending exceptions set forth in paragraph (b) above.]'
Section 5. Escrow Account.
The Financing Documents provide that the monies deposited in escrow shall be invested until payments to the vendor(s) or manufacturer(s)
of the Equipment are due. Lessee will ensure that such investment will not result in Lessee's obligations under the Financing Documents
being treated as an "arbitrage bond" within the meaning of Section 148(a) of the Internal Revenue Code of 1986, as amended (the "Code "),
respectively. Any monies which are earned from the investment of these funds shall be labeled as interest earned. All such monies will be
disbursed on or promptly after the date that Lessee accepts the Equipment.
Section 6. No Private Use; No Consumer Loan.
6.1. Lessee will not exceed the private use restrictions set forth in Section 141 of the Code. Specifically, Lessee will not permit more than
' Not applicable to all transactions; see amount limitation.
9
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21
10% of the Principal Amount to be used for a Private Business Use (as defined herein) if, in addition, the payment of more than ten percent
(10 %) of the Principal Amount plus interest earned thereon is, directly or indirectly, secured by (i) any interest in property used or to be
used for a Private Business Use or (ii) any interest in payments in respect of such property or derived from any payment in respect of
property or borrowed money used or to be used for a Private Business Use.
In addition, if both (A) more than five percent (5 %) of the Principal Amount is used as described above with respect to Private
Business Use and (B) more than five percent (5 %) of the Principal Amount plus interest earned thereon is secured by Private Business Use
property or payments as described above, then the excess over such five percent (5 %) (the `Excess Private Use Portion ") will be used for a
Private Business Use related to the governmental use of the Equipment. Any such Excess Private Use Portion of the Principal Amount will
not exceed the portion of the Principal Amount used for the governmental use of the particular project to which such Excess Private Use
Portion is related. For purposes of this paragraph 6.1, "Private Business Use" means use of bond proceeds or bond financed - property
directly or indirectly in a trade or business carried on by a natural person or in any activity carried on by a person other than a natural
person, excluding, however, use by a state or local governmental unit and excluding use as a member of the general public.
6.2. No part of the Principal Amount or interest earned thereon will be used, directly or indirectly, to make or finance any loans to non-
governmental entities or to any governmental agencies other than Lessee.
Section 7. No Federal Guarantee.
7.1. Payment of the principal or interest due under the Financing Documents is not directly or indirectly guaranteed, in whole or in part, by
the United States or an agency or instrumentality thereof.
7.2. No portion of the Principal Amount or interest earned thereon shall be (i) used in making loans the payment of principal or interest of
which are to be guaranteed, in whole or in part, by the United States or any agency or instrumentality thereof, or (ii) invested, directly or
indirectly, in federally insured deposits or accounts if such investment would cause the financing under the Financing Documents to be
"federally guaranteed" within the meaning of Section 149(b) of the Code.
Section 8. Post - Issuance Compliance.
8.1 In the event an action takes place (or is anticipated to take place) that will cause the Equipment not to be used for qualified uses
under Section 141 of the Code, Lessee will consult with bond counsel as soon as practicable about taking remedial action as described in
Treasury Regulation Section 1.141 -12. Lessee will take all actions necessary to ensure that the "nonqualified bonds" (as defined in
Treasury Regulation Section 1.141 -12) are properly remediated in accordance with the requirements of the Treasury Regulations. Lessee
is familiar with the Internal Revenue Service's Voluntary Compliance Agreement Program pursuant to which issuers of tax- exempt debt
may voluntarily resolve violations of the Code and applicable Treasury Regulations on behalf of the holders of such debt or themselves
through closing agreements with the Internal Revenue Service.
8.2. Lessee will actively monitor the requirements of the Code and the Treasury Regulations (a) set forth in this certificate and confirm that
such requirements are met no less than once per year; (b) related to the allocation and accounting of proceeds to capital projects and will
maintain a list that specifies the allocation of proceeds of the Lease to the costs of the Equipment; (b) related to arbitrage limitations,
including yield restriction, rebate requirements and the investment of gross proceeds of the Lease. The offices within Lessee that are
currently responsible for such monitoring are the administration and accounting departments.
Section 9. Miscellaneous.
9.1. Lessee shall keep a complete and accurate record of all owners or assignees of the Financing Documents in form and substance
satisfactory to comply with the registration requirements of Section 149(a) of the Code unless Lessor or its assignee agrees to act as
Lessee's agent for such purpose.
9.2. Lessee shall maintain complete and accurate records establishing the expenditure of the Principal Amount and interest earnings
thereon for a period of five (5) years after payment in full under the Financing Documents.
9.3. To the best of the undersigned's knowledge, information and belief, the above expectations are reasonable and there are no other
facts, estimates or circumstances that would materially change the expectations expressed herein.
20
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2013.
22
IN WITNESS WHEREOF, this Tax Agreement and Arbitrage Certificate has been executed on behalf of Lessee as of June 3,
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.,
Lessee
By:
Name: Bill Waddell
Title: President
Date:
21
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[Escrow]
RESOLUTION OF GOVERNING BODY
23
EXHIBIT C -1
Lease Number: 09065
Equipment Schedule: 01
At a duly called meeting of the governing body of Lessee held in accordance with all applicable legal requirements, including open
meeting laws, on the day of I , the following resolution was introduced and adopted:
RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER LEASE AGREEMENT, EQUIPMENT
SCHEDULE NO. 01, AN ESCROW AGREEMENT, AND RELATED INSTRUMENTS, AND DETERMINING OTHER
MATTERS IN CONNECTION THEREWITH.
WHEREAS, the governing body of ORANGE GROVE VOLUNTEER FIRE COMPANY, INC. ( "Lessee ") desires to obtain certain
equipment (the "Equipment") described in Equipment Schedule No. 01 to the Master Lease Agreement (collectively, the "Lease "),
between SUNTRUST EQUIPMENT FINANCE & LEASING CORP. ( "Lessor ") and Lessee, the forth of which has been available for
review by the governing body of Lessee prior to this meeting; and
WHEREAS, the Equipment is essential for Lessee to perform its governmental functions; and
WHEREAS, the funds made available under the Lease will be deposited with SUNTRUST BANK (the "Escrow Agent") pursuant to an
Escrow Agreement between Lessor, Lessee and Escrow Agent (the "Escrow Agreement") and will be applied to the acquisition of the
Equipment in accordance with said Escrow Agreement; and
WHEREAS, Lessee has satisfied the legal requirements, including those relating to any applicable public bidding requirements, to arrange
for the acquisition of the Equipment and the execution and delivery of the Lease and the Escrow Agreement; and
WHEREAS, Lessee proposes to enter into the Lease with SUNTRUST EQUIPMENT FINANCE & LEASING CORP. and the Escrow
Agreement with Lessor and Escrow Agent substantially in the forms presented to this meeting.
NOW, THEREFORE, BE IT RESOLVED BY THE GOVERNING BODY OF LESSEE AS FOLLOWS:
Section 1. It is hereby found and determined that the terms of the Lease and the Escrow Agreement (collectively, the "Financing
Documents ") in substantially the forms presented to this meeting and incorporated in this resolution are in the best interests of Lessee for
the acquisition of the Equipment.
Section 2. The Financing Documents and the acquisition and financing of the Equipment under the terms and conditions as described in
the Financing Documents are hereby approved. The President of Lessee and any other officer of Lessee who shall have power to execute
contracts on behalf of Lessee be, and each of them hereby is, authorized to execute, acknowledge and deliver the Financing Documents
with any changes, insertions and omissions therein as may be approved by the officers who execute the Financing Documents, such
approval to be conclusively evidenced by such execution and delivery of the Financing Documents. The of the Lessee and
any other officer of Lessee who shall have power to do so be, and each of them hereby is, authorized to affix the official seal of Lessee to
the Financing Documents and attest the same.
Section 3. The proper officers of Lessee be, and each of them hereby is, authorized and directed to execute and deliver any and all papers,
instruments, opinions, certificates, affidavits and other documents and to do or cause to be done any and all other acts and things necessary
or proper for carrying out this resolution and the Financing Documents.
Section 4. Pursuant to Section 265(b) of the Internal Revenue Code of 1986, as amended (the "Code "), Lessee hereby specifically
designates the Lease as a "qualified tax- exempt obligation" for purposes of Section 265(b)(3) of the Code.
Section 5. This resolution shall take effect immediately.
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I.'
The undersigned further certifies that the above resolution has not been repealed or amended and remains in full force and effect
and further certifies that the Lease and Escrow Agreement executed on behalf of Lessee are the same as presented at such meeting of the
governing body of Lessee, excepting only such changes, insertions and omissions as shall have been approved by the officers who executed
the same.
Date:
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.,
Lessee
By:
Name: Bill Waddell
Title: President
Attested By:
Name:
Title:
23
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25
EXHIBIT D
Lease No.: 09065
Equipment Schedule: 01
INCUMBENCY CERTIFICATE
I do hereby certify that I am the duly elected or appointed and acting of ORANGE GROVE
VOLUNTEER FIRE COMPANY, INC., a qualified volunteer fire company within the meaning of Section 150(e) (2) of the Internal
Revenue Code of 1986, as amended, (the "Code ")duly organized and existing under the laws of the State of North Carolina, that I have
custody of the records of such entity, and that, as of the date hereof, the individuals named below are the duly elected or appointed officers
of such entity holding the offices set forth opposite their respective names.
I further certify that (i) the officers of Lessee listed below have the authority on behalf of Lessee to execute and deliver the Master
Lease Agreement dated as of June 3, 2013 between SunTrust Equipment Finance & Leasing Corp. and Lessee, all Equipment Schedules
thereunder and all other documents, agreements and certificates contemplated by the foregoing; and (ii) the signatures set opposite the
respective names and titles of such officers are their true and authentic signature.
NAME TITLE SIGNATURE PHONE NUMBER
Bill Waddell President 919- 454 -8089
IN WITNESS WHEREOF, I have duly executed this certificate as of this day of
By:
Name:
Title: Board Secretary or Clerl2
z
Signatory cannot be an authorized signer of documents
24
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[LETTERHEAD OF LESSEE'S COUNSEL]
June 3, 2013
SunTrust Equipment Finance & Leasing Corp.
300 East Joppa Road, Suite 700
Towson, Maryland 21286
1
EXHIBIT E
Re: Master Lease Agreement dated as of June 3, 2013 (the "Agreement ") by and between SUNTRUST EQUIPMENT
FINANCE & LEASING CORP. ( "Lessor") and ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.
( "Lessee ")
Ladies and Gentlemen:
We have acted as counsel to Lessee with respect to the above - referenced Agreement and related matters, and in this capacity have
reviewed a duplicate original or certified copy of the Agreement and Equipment Schedule No. 01 executed pursuant thereto (together with
the Agreement, the "Lease ") [and the Escrow Agreement dated as of June 3, 2013 between Lessor, Lessee and SunTrust Bank, as escrow
Agent (the "Escrow Agreement," and together with the Lease, the "Financing Documents "). The terms capitalized in this opinion but not
defined herein shall have the meanings assigned to them in the Lease. Based upon the examination of these and such other documents as
we have deemed relevant, it is our opinion that:
1. Lessee is a qualified volunteer fire company within the meaning of Section 150(e) (2) of the Internal Revenue Code of
1986, as amended, (the "Code "), and does not derive its issuing authority from another entity and is not subject to financial control by
another entity and is not otherwise a subordinate entity of another entity within the meaning of Section 265(b) (3) of the Code, and is duly
organized, existing and operating under the Constitution and laws of the State.
2. Lessee is authorized and has the power under applicable law to enter into the Financing Documents, and to carry out its
obligations thereunder and the transactions contemplated thereby.
3. The Financing Documents have been duly authorized, executed and delivered by and on behalf of Lessee, and are legal,
valid and binding obligations of Lessee enforceable in accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
4. The authorization and execution of the Financing Documents and all other proceedings of Lessee relating to the
transactions contemplated thereby have been performed in accordance with all applicable open meeting, public records, public bidding and
all other laws, rules and regulations of the State.
5. The execution of the Lease and the obligation to pay the Rental Payments corning due thereunder do not and will not
result in the violation of any constitutional, statutory or other limitation relating to the manner, form or amount of indebtedness which may
be incurred by Lessee.
6. There is no litigation, action, suit or proceeding pending or before any court, administrative agency, arbitrator or
governmental body that challenges the organization or existence of Lessee, the authority of Lessee or its officers or its employees to enter
into the Financing Documents, the proper authorization and /or execution of the Financing Documents or the documents contemplated
thereby, the obligation of Lessee to make Rental Payments under the Lease, or the ability of Lessee otherwise to perform its obligations
under the Financing Documents and the transactions contemplated thereby. To the best of our knowledge, no such litigation, action, suit or
proceeding is threatened.
The Equipment is personal property, and when used by Lessee will not be or become fixtures under the laws of the State.
8. Resolution No. of the governing body of Lessee was duly and validly adopted by such governing body on
, and such resolution has not been amended, modified, supplemented or repealed and remains in full force and
25
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27
effect.
This opinion may be relied upon by the addressee hereof and its successors and assignees of interests in the Lease, but only with
regard to matters specifically set forth herein.
Very truly yours,
(type name and title under signature)
5/16/ 2013: BQ- ESCfamtem.DOC /rev.01 /04.st1
28
EXHIBIT F
Lease No.: Shown on Schedule I
Equipment Schedule: Shown on Schedule I
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.
ESCROW AGREEMENT
This ESCROW AGREEMENT, made and entered into as of the Date shown on Schedule I, by and among SUNTRUST EQUIPMENT
FINANCE & LEASING CORP., a Virginia corporation ( "Lessor"), Lessee named on Schedule 1, which is a qualified volunteer fire
company within the meaning of Section 150(e) (2) of the Internal Revenue Code of 1986, as amended, (the "Code ") of the State or
Commonwealth shown on Schedule I ( "Lessee "), and SUNTRUST BANK, a Georgia banking corporation, as Escrow Agent ( "Escrow
Agent").
In consideration of the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS AND RECITALS
Section I.I. Definitions. The terms defined in this Section 1.1 shall, for all purposes of this Escrow Agreement, have the meanings
specified below or on Schedule I.
"Acquisition Costs" means, with respect to the Equipment, the contract price paid or to be paid to the person entitled to such payment
upon acquisition or delivery of any portion of the Equipment in accordance with the purchase order or contract therefor. Acquisition Costs
may include the administrative, engineering, legal, financial and other costs incurred by Lessee in connection with the acquisition, delivery
and financing of the Equipment, if approved by Lessor.
"Equipment" means the personal property described in the Acceptance Certificate executed pursuant to the Lease, together with any and
all modifications, additions and alterations thereto, to be acquired from the moneys held in the Equipment Acquisition Fund.
"Equipment Acquisition Fund" means the account by that name established and held by Escrow Agent pursuant to Article II of this
Escrow Agreement.
"Escrow Agent Fee" has the meaning set forth in Section 6.1 and the amount of such Escrow Agent Fee is shown on Schedule I.
"Escrow Agreement" means this Escrow Agreement and any duly authorized and executed amendment or supplement hereto.
"Initial Deposit Amount" means the amount shown as the Initial Deposit Amount on Schedule I.
"Lease" means the Master Lease, together with the Equipment Schedule identified on Schedule I, by and between Lessee and Lessor, and
any duly authorized and executed amendment or supplement thereto.
"Master Lease" means the Master Lease Agreement, dated as of the date shown on Schedule I, by and between Lessee and Lessor,
including any Equipment Schedules entered into thereunder and any duly authorized and executed amendment or supplement thereto.
"Payment Request Form" means the document substantially in the form attached hereto as Exhibit A to be executed by Lessee and
Lessor and submitted to Escrow Agent to authorize payment of Acquisition Costs.
"Qualified Investments" means the ST Leasing — Corp Agency NOW Account, a SunTrust Deposit Account for Escrow customers of
SUNTRUST EQUIPMENT FINANCE & LEASING CORP. and SunTrust Bank. By signing this Escrow Agreement, Lessee
acknowledges that such Qualified Investment is a permitted investment under any state, county or municipal law applicable to the
investment of Lessee's funds.
ARTICLE II. APPOINTMENT OF ESCROW AGENT; AUTHORITY
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Section 2.1. Appointment of Escrow Agent. Lessor and Lessee hereby appoint and employ Escrow Agent to receive, hold, invest and
disburse the moneys to be paid to Escrow Agent pursuant to this Escrow Agreement and to perform certain other functions, all as
hereinafter provided. By executing and delivering this Escrow Agreement, Escrow Agent accepts the duties and obligations of Escrow
Agent hereunder.
Escrow Agent undertakes to perform only such duties as are expressly set forth herein, and no additional duties or obligations shall be
implied hereunder. In performing its duties under this Escrow Agreement, or upon the claimed failure to perform any of its duties
hereunder, Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of
Escrow Agent so acting or failing to so act; provided, however, Escrow Agent shall not be relieved from liability for damages arising
out of its proven gross negligence or willful misconduct under this Escrow Agreement. Escrow Agent shall in no event incur any
liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to
any party hereto, given with respect to any question relating to the duties and responsibilities of Escrow Agent hereunder or (ii) any
action taken or omitted to be taken in reliance upon any instrument delivered to Escrow Agent and believed by it to be genuine and to
have been signed or presented by the proper party or parties. Escrow Agent shall not be bound in any way by any agreement or
contract between Lessor and Lessee, including the Master Lease, whether or not Escrow Agent has knowledge of any such agreement
or contract.
Section 2.2. Authority. Each of the parties has authority to enter into this Escrow Agreement, and has taken all actions necessary to
authorize the execution of this Escrow Agreement by the representatives whose signatures are affixed hereto.
ARTICLE III. EQUIPMENT ACQUISITION FUND
Section 3.1. Equipment Acquisition Fund. Escrow Agent shall establish a special escrow account designated as the "Equipment
Acquisition Fund" (the "Equipment Acquisition Fund"), shall keep such Equipment Acquisition Fund separate and apart from all other
funds and moneys held by it and shall administer such Equipment Acquisition Fund as provided in this Escrow Agreement.
Section 3.2. Deposit. Upon execution of the Lease and delivery to Lessor by Lessee of all documents required to be delivered thereunder,
Lessor shall deposit or cause to be deposited with Escrow Agent an amount equal to the Initial Deposit Amount. Escrow Agent shall credit
such amount to the Equipment Acquisition Fund. The Initial Deposit Amount is to be sent by Lessor to Escrow Agent by wire transfer to:
SunTrust Bank, Atlanta, Georgia, ABA# 061000104, Account# 9443001321, Account Name: Escrow Services Richmond,
Beneficiary as shown on Schedule I, Attention: Matthew Ward.
Section 3.3. Disbursements. Escrow Agent shall use the moneys in the Equipment Acquisition Fund from time to time to pay the
Acquisition Cost of each item of Equipment, within a reasonable time of receipt with respect thereto of a Payment Request Form executed
by Lessor and Lessee. Upon receipt of a Payment Request Forth executed by Lessor and Lessee, an amount equal to the Acquisition Cost
as shown therein shall be paid directly by Escrow Agent to the person or entity entitled to payment as specified therein. Although the
Payment Request Form may have schedules, invoices and other supporting document attached to it, Lessor will send to Escrow Agent only
the page or pages showing the signatures of Lessor and Lessee, the Acquisition Cost and related payment information, without such
schedules, invoices or other supporting documentation. Escrow Agent may act and rely upon the signed Payment Request Forth without
the need to review or verify any such schedules, invoices or other supporting documentation.
Section 3.4. Transfers Upon Completion. Unless all of the funds deposited by Lessor in the Equipment Acquisition Fund have been
previously disbursed pursuant to Section 3.3 or paid to Lessor pursuant to Section 3.5, on the Ending Date shown on Schedule I, Escrow
Agent shall pay upon written direction all remaining moneys in the Equipment Acquisition Fund to Lessor or its assignee for application as
a prepayment of the unpaid Principal under the related Lease. Any amounts paid pursuant to this Section 3.4 shall be subject to a
prepayment fee equal to two percent (2 %) of such amount. Lessor shall apply amounts received under this Section 3.4 first to unpaid fees,
late charges and collection costs, if any, which have accrued or been incurred under the Master Lease, then to overdue Principal and
Interest on the Lease and then, in the sole discretion of Lessor, either (i) to Principal payments thereafter due under the Lease in the inverse
order of their maturities or (ii) proportionately to each Principal payment thereafter due under the Lease. In the event that Lessor elects to
apply any such amounts in accordance with clause (i) of the preceding sentence, Lessee shall continue to make Rental Payments as
scheduled in the applicable Payment Schedule. In the event that Lessor elects to apply such amounts in accordance with clause (ii) of this
Section 3.4, Lessor shall provide Lessee with a revised Payment Schedule which shall reflect the revised Principal balance and reduced
Rental Payments due under the Lease. Capitalized terms used in this Section 3.4, but not defined herein, shall have the meanings given to
such terms in the Lease. Escrow Agent shall have no responsibility to see to the appropriate application of any moneys returned under this
Section 3.4.
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Section 3.5. Liquidation. Upon receipt of written notice from Lessor or Lessee that the Lease has been terminated pursuant to Section
12.2 thereof, Escrow Agent shall liquidate all investments held in the Equipment Acquisition Fund and transfer the proceeds thereof and all
other moneys held in the Equipment Acquisition Fund to Lessor.
Section 3.6. Responsible Party. The Lessee shall be responsible for the initiation of the disbursement process pursuant to Section 3.3
hereof. Neither Escrow Agent nor Lessor shall be responsible for any additional monies assessed to Lessee resulting from disbursements
made from the Equipment Acquisition Fund.
ARTICLE IV. TRUST; INVESTMENT
Section 4.1. Irrevocable Trust. The moneys and investments held by Escrow Agent under this Escrow Agreement are irrevocably held
in trust for the benefit of Lessor and Lessee, and such moneys, together with any income or interest earned, shall be expended only as
provided in this Escrow Agreement, and shall not be subject to levy or attachment or lien by or for the benefit of any creditor of either
Lessor or Lessee (other than Lessor's security interest granted hereunder).
Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Equipment
Acquisition Fund or any part of the Equipment Acquisition Fund or to file any financing statement under the Uniform Commercial
Code of any jurisdiction with respect to the Equipment Acquisition Fund or any part thereof.
Section 4.2. Investment. Moneys held by Escrow Agent hereunder shall be invested and reinvested by Escrow Agent only in Qualified
Investments. Such investments shall be registered in the name of Escrow Agent and held by Escrow Agent for the benefit of Lessor and
Lessee. Escrow Agent may purchase or sell to itself or any affiliate, as principal or agent, investments authorized by this Article IV. Such
investments and re- investments shall be made giving full consideration for the time at which funds are required to be available. Any
income received on such investments shall be credited to the Equipment Acquisition Fund and any loss on such investments shall be
charged to the Equipment Acquisition Fund. Escrow Agent shall not be responsible or liable for any loss suffered in connection with any
investment of moneys made by it in accordance with this Article IV.
Section 4.3. Disposition of Investments. Escrow Agent shall, without further direction from Lessor or Lessee, sell such investments as
and when required to make any payment from the Equipment Acquisition Fund.
Section 4.4. Accounting. Escrow Agent shall keep complete and accurate records of all moneys received and disbursed under this
Escrow Agreement which shall be available for inspection by Lessor or Lessee, or the agent of either of them, at any time during regular
business hours upon prior written request. Escrow Agent shall furnish to Lessor and Lessee no less than quarterly an accounting of all
investments and interest and income therefrom.
Section 4.5. Termination. This Escrow Agreement shall terminate upon disbursement by Escrow Agent of all moneys held by it
hereunder. Notwithstanding the foregoing, this Escrow Agreement shall not be considered to be terminated until all fees, costs and
expenses of Escrow Agent have been paid in full. Upon termination, Escrow Agent shall be discharged from all duties and responsibilities
under this Escrow Agreement.
ARTICLE V. ESCROW AGENT'S AUTHORITY; INDEMNIFICATION
Section 5.1. Validity. Escrow Agent may act upon any writing or instrument or signature which it believes to be genuine, may assume the
validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to
give any writing, notice, advice or instructions in connection with the provisions hereof has been duly authorized to do so, and Escrow
Agent shall be under no duty to make any investigation or inquiry as to any of the foregoing. Escrow Agent shall not be liable in any
manner for the sufficiency or correctness as to form, manner and execution, or validity of any instrument deposited with it, nor as to the
identity, authority or right of any person executing the same.
Escrow Agent shall be entitled to rely upon any statement, certificate, document or instrument presented to it by or on behalf of Lessee
by any of Lessee's Authorized Representatives shown on Schedule I and shall be entitled to rely upon any such statement, certificate,
document or instrument presented to it by any other person who identifies himself or herself as an authorized representative of Lessee.
Section 5.2. Use of Counsel and Agents. Escrow Agent may execute any of the trusts or powers hereof and perform the duties required
of it hereunder by or through attorneys, agents, or receivers. Escrow Agent shall be entitled to advice of counsel concerning all matters of
trust and its duties hereunder and shall be paid or reimbursed the reasonable fees and expenses of such counsel, as provided in Section 6.1.
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Escrow Agent shall not be answerable for the default or misconduct of any such attorney, agent, or receiver selected by it with reasonable
care.
Section 5.3. Interpretation. As an additional consideration for and as an inducement for Escrow Agent to act hereunder, it is
understood and agreed that, in the event of any disagreement between the parties to this Escrow Agreement or among them or any
other persons resulting in adverse claims and demands being made in connection with or for any money or other property involved in
or affected by this Escrow Agreement, Escrow Agent shall be entitled, at the option of Escrow Agent, to refuse to comply with the
demands of such parties, or any of such parties, so long as such disagreement shall continue. In such event, Escrow Agent shall make
no delivery or other disposition of the Equipment Acquisition Fund or any part of the Equipment Acquisition Fund. Anything herein to
the contrary notwithstanding, Escrow Agent shall not be or become liable to such parties or any of them for the failure of Escrow
Agent to comply with the conflicting or adverse demands of such parties or any of such parties.
Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the Equipment Acquisition Fund or
any part thereof or to otherwise act hereunder, as stated above, unless and until:
I. the rights of such parties have been finally settled by binding arbitration or duly adjudicated in a court having
jurisdiction of the parties and the Equipment Acquisition Fund; or
2. the parties have reached an agreement resolving their differences and have notified Escrow Agent in writing of such
agreement and have provided Escrow Agent with indemnity satisfactory to Escrow Agent against any liability, claims or damages
resulting from compliance by Escrow Agent with such agreement.
In the event of a disagreement between such parties as described above, Escrow Agent shall have the right, in addition to the rights
described above and at the option of Escrow Agent, to tender into the registry or custody of any court having jurisdiction, all money
and property comprising the Equipment Acquisition Fund and may take such other legal action as may be appropriate or necessary, in
the opinion of Escrow Agent. Upon such tender, the parties hereto agree that Escrow Agent shall be discharged from all further duties
and responsibilities under this Escrow Agreement; provided, however, that the filing of any such legal proceedings shall not deprive
Escrow Agent of its compensation hereunder earned prior to such filing and discharge of Escrow Agent of its duties and
responsibilities hereunder.
The parties hereto jointly and severally agree that, whether under this Section 5.3 or any other provisions of this Escrow Agreement, in
the event any controversy arises under or in connection with this Escrow Agreement or the Equipment Acquisition Fund or in the event
that Escrow Agent is made a party to or intervenes in any litigation pertaining to this Escrow Agreement or the Equipment Acquisition
Fund, to pay to Escrow Agent reasonable additional compensation for its extraordinary services and to reimburse Escrow Agent for all
costs and expenses associated with such controversy or litigation, including reasonable attorney's fees.
Section 5.4. Limited Liabilitv of Escrow Agent. Escrow Agent shall not be liable in connection with the performance or observation of
its duties or obligations hereunder except for in the case of its proven gross negligence or willful misconduct. Escrow Agent shall have no
obligation or liability to any of the other parties under this Escrow Agreement for the failure or refusal of any other party to perform any
covenant or agreement made by such party hereunder or under the Master Lease, but shall be responsible solely for the performance of the
duties and obligations expressly imposed upon it as Escrow Agent hereunder.
Section 5.5. Indemnification. Escrow Agent shall have no obligation to take any legal action in connection with this Escrow
Agreement or towards its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might
involve it in any cost, expense, loss or liability unless security and indemnity, as provided in this Section 5.5, shall be furnished.
To the extent permitted by applicable law, Lessee agrees to indemnify Escrow Agent and it officers, directors, employees and agents and
save Escrow Agent and its officers, directors, employees and agents harmless from and against any and all Claims (as hereinafter
defined) and Losses (as hereinafter defined) which may be incurred by Escrow Agent or any of such officers, directors, employees or
agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents as a result of or in
connection with Escrow Agent's capacity as such under this Escrow Agreement by any person or entity. For the purposes hereof, the
term "Claims" shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought
against (whether by way of direct action, counterclaim, cross action or impleader) Escrow Agent or any such officer, director,
employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or
proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(a) the acts or omissions of Lessor or Lessee, (b) the appointment of Escrow Agent as escrow agent under this Escrow Agreement, or
(c) the performance by Escrow Agent of its powers and duties under this Escrow Agreement; and the term "Losses" shall mean losses,
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costs, damages, expenses, judgments and liabilities of whatever nature (including but not limited to attorneys', accountants' and other
professionals' fees, litigation and court costs and expenses and amounts paid in settlement), directly or indirectly resulting from,
arising out of or relating to one or more Claims. Upon the written request of Escrow Agent or any such officer, director, employee or
agent (each referred to hereinafter as an "Indemnified Party"), and to the extent permitted by law, Lessee agrees to assume the
investigation and defense of any Claim, including the employment of counsel acceptable to the applicable Indemnified Party and the
payment of all expenses related thereto and, notwithstanding any such assumption, the Indemnified Party shall have the right, and
Lessee agrees to pay the cost and expense thereof, to employ separate counsel with respect to any such Claim and participate in the
investigation and defense thereof in the event that such Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to such Indemnified Party which are different from or additional to those available to either Lessor or
Lessee. Lessee hereby agrees that the indemnifications and protections afforded Escrow Agent in this Section 5.5 shall survive the
termination of this Escrow Agreement.
ARTICLE VI. COMPENSATION
Section 6.1. Escrow Agent Fee. Escrow Agent shall be paid by Lessee the Escrow Agent Fee shown on Schedule I for the ordinary
services to be rendered hereunder (the "Escrow Agent Fee "), and will be paid and /or reimbursed by Lessee upon request for all costs,
expenses, disbursements and advances, such as reasonable attorney's fees and court costs, incurred or made by Escrow Agent in
connection with carrying out its duties hereunder, including the costs, expenses, disbursements and advances described in Sections 5.2, 5.3
and 6.2. The Escrow Agent Fee and such other costs, expenses, disbursements and advances shall be payable from the interest earnings
from the Equipment Acquisition Fund. In the event a shortfall occurs, said shortfall shall be the responsibility of Lessee and not the
responsibility of Escrow Agent, Lessor, or their agents or assigns. Such shortfall shall be paid by Lessee to Escrow Agent within 30 days
following receipt by Lessee of a written statement setting forth such shortfall.
Section 6.2. Investment Fees. Escrow Agent shall be entitled to charge reasonable fees and commissions in connection with the
investment by it of amounts held in the Equipment Acquisition Fund (the "Investment Fees "). Lessor and Lessee hereby authorize Escrow
Agent to periodically deduct the Investment Fees from investment earnings on the Equipment Acquisition Fund.
Section 6.3. Securitv for Fees and Expenses. As security for all fees and expenses of Escrow Agent hereunder and any and all losses,
claims, damages, liabilities and expenses incurred by Escrow Agent in connection with its acceptance of appointment hereunder or
with the performance of its obligations under this Escrow Agreement and to secure the obligation of Lessee to indemnify Escrow
Agent as set forth in Section 5.5, Escrow Agent is hereby granted a security interest in and a lien upon the Equipment Acquisition
Fund, which security interest and lien shall be prior to all other security interests, liens or claims against the Equipment Acquisition
Fund or any part thereof.
ARTICLE VII. CHANGE OF ESCROW AGENT
Section 7.1. Removal of Escrow Agent. Lessor and Lessee, by written agreement, may by written request, at any time and for any
reason, remove Escrow Agent and any successor thereto, and shall thereupon appoint a successor or successors thereto, but any such
successor shall have capital (exclusive of borrowed capital) and surplus of at least Fifty Million Dollars ($50,000,000), and be subject to
supervision or examination by federal or state authority. If such bank or trust company publishes a report of condition at least annually,
pursuant to statute or the requirements of any federal or state supervising or examining authority, then for the purposes of this Section 7. 1,
the combined capital and surplus of such bank or trust company may be conclusively established in its most recent report of condition so
published.
Section 7.2. Resignation of Escrow Agent. Escrow Agent may resign at any time from it obligations under this Escrow Agreement by
providing written notice to the parties hereto. Such resignation shall be effective on the date set forth in such written notice which shall
be no earlier than 30 days after such written notice has been given, unless an earlier resignation date and the appointment of a successor
Escrow Agent shall have been approved by Lessor and Lessee. In the event no successor escrow agent has been appointed on or prior to
the date such resignation is to become effective, Escrow Agent shall be entitled to tender into the custody of a court of competent
jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Escrow
Agreement. Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
Section 7.3. Merger or Consolidation. Any entity into which Escrow Agent may be merged or converted, or with which it may be
consolidated, or any entity resulting from any merger, conversion or consolidation to which it shall be a party, or any company to which
Escrow Agent may sell or transfer all or substantially all of its corporate trust business (provided that such company shall be eligible under
Section 7.1) shall be the successor to Escrow Agent without any execution or filing or further act.
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ARTICLE VIII. ADMINISTRATIVE PROVISIONS.
Section 8.1. Notice. All written notices to be given under this Escrow Agreement shall be given by mail, by facsimile or by overnight
courier to the party entitled thereto at its contact information specified on Schedule I, or at such contact information as the party may
provide to the other parties hereto in writing from time to time. Any such notice shall be deemed to have been received 72 hours after
deposit in the United States mail in registered or certified form, with postage fully prepaid, or if given by other means, when delivered at
the address or facsimile number specified in Schedule L Any notice given by any party shall be given to both other parties.
Section 8.2. Assignment. Except as expressly herein provided to the contrary, the rights and duties of each of the parties under this
Escrow Agreement shall not be assignable to any person or entity without the written consent of all of the other parties. Notwithstanding
the above, Lessor may freely assign all or any part of its interest in this Escrow Agreement and the Equipment Acquisition Fund in
connection with an assignment by Lessor of its rights under the Lease.
Section 8.3. Binding Effect. This Escrow Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns.
Section 8.4. Severabilitv. In the event any provision of this Escrow Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
Section 8.5. Entire Agreement; Amendments. This Escrow Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous writings, understandings, agreements, solicitation documents and
representations, express or implied. By execution of this Escrow Agreement, Escrow Agent shall not be deemed or considered to be a
party to any other document, including the Master Lease.
This Escrow Agreement may be amended, supplemented or modified only by written documents duly authorized, executed and delivered
by each of the parties hereto.
Section 8.6. Captions. The captions or headings in this Escrow Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provisions, Articles, Sections or clauses hereof.
Section 8.7. Further Assurances and Corrective Instruments. Lessor and Lessee agree that they will, from time to time, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as
may be necessary or proper to carry out the intention or to facilitate the performance of the parties under this Escrow Agreement, and for
better assuring and confirming the rights and benefits provided herein.
Section 8.8. Governing Law. This Escrow Agreement shall be construed and governed in accordance with the laws of the State of North
Carolina.
Section 8.9. Execution in Counterparts. This Escrow Agreement may be simultaneously executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same Escrow Agreement.
Section 8.10. Waiver of Jury Trial. Lessor, Lessee and Escrow Agent hereby waive any right to trial by jury in any action or proceeding
with respect to, in connection with or arising out of this Escrow Agreement.
Section 8.11. No Tax Reporting. Escrow Agent will not be responsible for tax reporting of any income on the Equipment Acquisition
Fund.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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EXECUTION PAGE OF ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the Date of Escrow Agreement shown on Schedule I.
SUNTRUST BANK,
Escrow Agent
By
Name:
Title:
[SEAL]
Schedule I Information to Complete Escrow Agreement
Exhibit A Payment Request Forth
1054496x2
215474.005
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.,
Lessor
By—
Name:
Title:
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.,
Lessee
By
Name
Title:
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Bill Waddell
President
SCHEDULEI
INFORMATION TO COMPLETE ESCROW AGREEMENT
Lease Number: 09065
Equipment Schedule: 001
Date of Escrow Agreement: June 3, 2013
Name of Lessee: Bill Waddell
Lessee's State / Commonwealth: North Carolina
Fees: $500.00 (Escrow Agent)
Extension and other fees may be applicable if not disbursed by the Ending Date.
Initial Deposit Amount: $300,000.00
Date of Master Lease Agreement: June 3, 2013
Beneficiary Name for Fund: ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.
Ending Date: December 3, 2014
Lessee's Address: 6800 Orange Grove Road
Hillsborough, NC 27278
Attention: Bill Waddell
Lessee's Telephone: 919- 454 -8089
Lessee's Facsimile: 919 - 942 -5888
Lessee's Taxpayer Identification Number: 23- 7348415
Lessee's Authorized Representatives Bill Waddell, President
Lessor's Taxpayer Identification Number: 26- 1256148
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[signature]
[signature]
[name /title] _
Escrow Agent's Address:
SunTrust Bank, Escrow Services Richmond
919 East Main Street, 7th Floor
Richmond, VA 23219
Attention: Matthew Ward
Escrow Agent's Telephone:
(804) 782 -7182
Escrow Agent's Facsimile:
(804) 782 -7855
Lessor's Address:
SunTrust Equipment Finance & Leasing Corp.
300 East Joppa Road, Suite 700
Towson, Maryland 21286
Attention:
Lessor's Telephone:
(410) 307 -6648
Lessor's Facsimile:
(410) 307 -6702
Lessor's Taxpayer Identification Number: 26- 1256148
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[signature]
[signature]
Lease Number:09065
Equipment Schedule: 001
EXHIBIT A
PAYMENT REQUEST FORM NO.
W
SUNTRUST BANK, as Escrow Agent under an Escrow Agreement dated as of June 3, 2013 (the "Escrow Agreement ") by and
among Escrow Agent, SUNTRUST EQUIPMENT FINANCE & LEASING CORP., as Lessor, and ORANGE GROVE
VOLUNTEER FIRE COMPANY, INC., as Lessee, is hereby requested to pay, from the Equipment Acquisition Fund, to the person or
entity designated below as payee, that amount set forth opposite each such name, in payment of the Acquisition Costs of the Equipment
designated opposite such payee's name and described on the attached page(s). The terms capitalized in this Payment Request Forth but not
defined herein shall have the meanings assigned to them in the Escrow Agreement.
Payee
Lessee hereby certifies that:
Amount
Equipment
1. Attached hereto is a duplicate original or certified copy of the following documents relating to the order, delivery and
acceptance of the Equipment described in this Payment Request Form: (a) a manufacturer's or dealer's invoice; and (b) unless this
Payment Request Form relates to partial payment of a Vendor, as defined in the Lease, in connection with a purchase order approved by
Lessor, Lessee's Acceptance Certificate relating to the Equipment.
The representations and warranties contained in the Lease are true and correct as of the date hereof.
3. No Event of Default, as each such term is defined in the Lease, or event which with the giving of notice or passage of
time or both would constitute an Event of Default, has occurred.
Dated: , 20_.
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.,
Lessee
By
Name: Bill Waddell
Title: President
Date:
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SUNTRUST EQUIPMENT FINANCE &
LEASING CORP.,
Lessor
By
Name:
Title:
Date:
37
EXHIBIT G -1
Lease No.: 09065
Equipment Schedule: 01
TO: Business Insurers of the Carolinas
Attn: Peggy Curasi
919- 968 -4611
Insert Insurance Agent Name & Address
Phone Number and Fax Number
Gentlemen:
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC. has entered into a Master Lease Agreement dated as of June 3,
2013 with SUNTRUST EQUIPMENT FINANCE & LEASING CORP.. In accordance with the Agreement, Lessee certifies that it has
instructed the insurance agent named above to issue:
a. All Risk Physical Damage Insurance on the leased Equipment evidenced by a Certificate of Insurance and Long Form Loss
Payable Clause naming SunTrust Equipment Finance & Leasing Corp. and /or its assigns as Loss Payee.
The Coverage Required is $300,000.00.
b. Public Liability Insurance evidenced by a Certificate of Insurance naming SunTrust Equipment Finance & Leasing
Corp. and /or its assigns as Additional Insured.
The following minimum coverage is required:
Liability: $ 500,000.00 per person
Liability - Bodily Injury: $1,000,000.00 aggregate
Liability - Property Damage: $1,000,000.00 property damage liability
PROPERTY: Collateral of the Following Fire Apparatuses to Finance the Construction of its Third Substation:
Engine 531, 2004 Spartan, VIN #4S7HT2D994CO47206 with Accessories
Engine 532, 2001 International 4900, VIN #1HTSDADR71I1354230 with Accessories
LOCATION: Nick's Road, Mebane, NC 27302
Upon issuance of the coverage outlined above, please mail a certificate of insurance to SunTrust Equipment Finance &
Leasing Corp., Hampton Plaza, 300 East Joppa Road, Towson, MD 21286.
Your courtesy in issuing and forwarding the requested certificate at your earliest convenience will be appreciated.
Very truly yours,
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.,
Bv:
Name: Bill Waddell
Title: President
Date:
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EXHIBIT G -2
Lease Number: 09065
Equipment Schedule: 01
QUESTIONNAIRE FOR SELF - INSURANCE TO
MASTER LEASE AGREEMENT
In connection with the Master Lease Agreement (the "Agreement"), dated as of June 3, 2013, made and entered into by and between
SUNTRUST EQUIPMENT FINANCE & LEASING CORP., as Lessor (the "Lessor "), and the lessee identified below, as Lessee (the
"Lessee "), Lessee warrants and represents to Lessor the following information. The terms capitalized herein but not defined herein shall
have the meanings assigned to them in the Agreement.
1. Property Insurance.
a. Lessee is self - insured for damage or destruction to the Equipment.
YES NO (circle one)
If yes, the dollar amount limit for property damage to the Equipment under Lessee's self - insurance program is $
Lessee maintains an umbrella insurance policy for claims in excess of Lessee's self - insurance limits for property damage
to the Equipment as indicated above.
YES NO (circle one)
If yes, the umbrella policy provides coverage for all risk property damage.
YES NO (circle one)
If yes, the dollar limit for property damage to the Equipment under such umbrella policy is $
2. Liability Insurance.
a. Lessee is self - insured for liability for injury or death of any person or damage or loss of property arising out of or relating to
the condition or operation of the Equipment.
YES NO (circle one)
If yes, the dollar limit for such liability claims under Lessee's self - insurance program is $
b. Lessee maintains an umbrella insurance policy for claims in excess of Lessee's self - insurance limits for liability
including injury or death of persons or damage to property as indicated above.
YES NO (circle one)
If yes, the umbrella policy provides coverage for liabilities for injury and death to persons as well as damage or loss of
property arising out of or relating to the condition or operation of the Equipment.
YES NO (circle one)
If yes, the dollar amount of the umbrella policy's limits for such liability coverage is $
3A. Selflnsurance Fund.
a. Lessee maintains a self - insurance fund.
YES NO (circle one)
If yes, please complete the following:
Monies in the self - insurance fund are subject to annual budgeting.
YES NO (circle one)
The total amount maintained in the self - insurance fund to cover Lessee's self - insurance liabilities is $
b. Amounts paid from Lessee's self - insurance fund are subject to limitations for each claim.
YES NO (circle one)
If yes, the dollar amount of limit per claim is $
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3B. No Self Insurance Fund.
a. If Lessee does not maintain a self - insurance fund, please complete the following:
Lessee obtains funds to pay claims for which it has self - insured from the following sources:
b. The limitations on the amounts payable for claims from the above sources are as follows:
4. Authority.
a. The following entity or officer has authority to authorize payment for claim:
b. In the event the entity or officer named in the prior response denies payment of a claim, does the claimant have recourse to
another administrative officer, agency or the courts?
YES NO (circle one)
If yes, to whom does the claimant have recourse?
5. Certificates oflnsurance.
Attached hereto are copies of certificates of insurance with respect to policies maintained by Lessee.
IN WITNESS WHEREOF, Lessee has caused this Questionnaire to be executed as a supplement to the representations of Lessee in the
Agreement by its duly authorized officer.
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.,
Lessee
By:
Name: Bill Waddell
Title: President
Date:
Telephone: 919- 454 -8089
Facsimile: 919- 942 -5888
Attachment
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M
SUNTRUST EQUIPMENT FINANCE & LEASING CORP.
ADDENDUM TO EQUIPMENT SCHEDULE NO. 01
TO MASTER LEASE AGREEMENT (LEASE NO. 09065)
RELATING TO SELF - INSURANCE
THIS ADDENDUM is made as of June 3, 2013, between SUNTRUST EQUIPMENT FINANCE & LEASING CORP. ( "Lessor ") and
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC. ( "Lessee ").
Recitals
A. Lessor and Lessee have entered into a Master Lease Agreement dated as of June 3, 2013 (the "Agreement ").
B. Lessee desires to lease equipment described in Equipment Schedule No. 01 to the Agreement (the "Equipment ") and Lessee has
requested that Lessor lease such Equipment to Lessee.
C. With respect to Equipment Schedule No. 01, Lessee has requested that Lessor permit it to provide self - insurance for liability claims and
property damage.
D. Lessor is willing to grant Lessee's request subject to the following terms and conditions.
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements contained herein and in the Agreement, it is
hereby agreed as follows:
1. The terms capitalized in this Addendum but not defined herein shall have the meanings assigned to them in the Agreement.
2. Lessee hereby represents and warrants that all representations and warranties contained in the Agreement are true and correct
as of the date hereof and that an Event of Default or event which, with the passage of time or giving of notice or both, would constitute an
Event of Default has occurred under the Agreement.
3. All other terms and conditions of the Agreement not specifically amended by this Addendum shall remain in full force and
affect and are hereby ratified and confirmed by Lessee.
4. Lessee represents and warrants that all representations and warranties contained in the Questionnaire for Self- Insurance to
Master Lease Agreement (the "Questionnaire ") are true and correct as of the date hereof.
5. Lessor acknowledges receipt of the Questionnaire and, in reliance upon the information provided therein, agrees that Lessee
may satisfy the requirements of Sections 7.1 through 7.3 of the Agreement with respect to Equipment Schedule No. 01 through self -
insurance.
6. By written notice to Lessee, Lessor may revoke its agreement relative to Equipment Schedule No. 01 to accept self - insurance
in lieu of the insurance required by Section 7.1 through 7.3 of the Agreement at any time during the related Lease Term when Lessor
deems itself insecure with respect to such self - insurance. Within thirty (30) days of receipt of notice from Lessor, Lessee agrees to obtain
insurance in compliance with Section 7.1, 7.2 and 7.3 of the Agreement and provide evidence thereof to Lessor.
IN WITNESS WHEREOF, the parties by their duly authorized officers have executed this Addendum as of the date and year first above
written.
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC.,
Lessee
By:
Name: Bill Waddell
Title: President
Date:
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SUNTRUST EQUIPMENT FINANCE &
LEASING CORP.,
Lessor
By:
Name:
Title:
Date:
[PAGE TO BE REPLACED BY UCC FINANCING STATEMENT]
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SCHEDULE A TO FINANCING STATEMENT OF
ORANGE GROVE VOLUNTEER FIRE COMPANY, INC., AS DEBTOR, AND
SUNTRUST EQUIPMENT FINANCE & LEASING CORP., AS SECURED PARTY
Continuation of Collateral Description
The financing statement to which this Schedule A is attached covers the types of property described on the face of such
financing statement and all of the Debtor's right, title and interest in and to (collectively, the "Collateral "):
Collateral of the Following Fire Apparatuses to Finance the Construction of its Third Substation:
Engine 531, 2004 Spartan, VIN #4S7HT2D994CO47206 with Accessories
Engine 532, 2001 International 4900, VIN #1HTSDADR71I1354230 with Accessories
(a) the equipment described in Equipment Schedule No. 01 dated as of June 3, 2013 (the "Equipment Schedule ") to the
Master Lease Agreement dated as of June 3, 2013 (the "Agreement," and together with the Equipment Schedule, the "Lease ") between
Debtor, as lessee, and Secured Party, as lessor, as such Lease may be amended, modified or supplemented from time to time together
with all of Debtor's right, title and interest in and to the Equipment Acquisition Fund established in Debtor's name at SUNTRUST
BANK (the "Escrow Agent ") pursuant to the Escrow Agreement dated as of June 3, 2013 (the "Escrow Agreement ") among Debtor,
Secured Party and Escrow Agent;
(b) to the extent not included in the foregoing, all books, ledgers and records and all computer programs, tapes, discs, punch
cards, data processing software, transaction files, master files and related property and rights (including computer and peripheral
equipment) necessary or helpful in enforcing, identifying or establishing any item of Collateral; and
(c) to the extent not included in the foregoing, all repairs, replacements, substitutions and modifications and all proceeds and
products of any or all of the foregoing, whether existing on the date hereof or arising hereafter.
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[NAME OF POLITICAL SUBDIVISION SERVED
BY VOLUNTEER FIRE DEPARTMENT]
Chief Elected Executive Officer's Approval
Pursuant to Section 147 (f) of the
Internal Revenue Code of 1986, as amended
TO WHOM IT MAY CONCERN:
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I, , [Title of Chief Elected Official] of [Name of Political Subdivision], pursuant to Section 147 (f) of the
Internal Revenue Code of 1986, as amended (the "Code "), hereby approve the entering into by the [Name of Volunteer Fire
Department] (the "Company") of a lease /purchase agreement with [Lessor] in an aggregate principal amount not to exceed
Dollars ($ ) for the purpose of financing the equipment consisting of [Type of Equipment] to be
located at the Company's Fire Station at
This approval is given following a public hearing held on at _m. at the Company's Fire Station at
, and is solely for the purposes of satisfying the requirements of Section 147 (f) of the
Code
I hereby certify that the Company provides fire protection services in and for the jurisdiction of
including particularly the area of
pursuant to a written agreement with
It is understood that this letter does not constitute any financial involvement or obligation of [Name of Political Subdivision] in the
loan transaction.
In Witness Whereof, I hereunto set my hand, this day of
[Name]
[Title]
[Governing Body of Political Subdivision]
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..
Notice of Public Hearing;
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Ad in newspaper for Public Hearing;
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.r.
FIREFIGHTING SERVICES AGREEMENT
THIS FIREFIGHTING SERVICES AGREEMENT ( "Agreement ") is entered into as of the
day of by and between [INSERT NAME OF COUNTY], a political subdivision of the State of
(the "County") and [NAME OF VOLUNTEER FIRE DEPARTMENT], (" "), tax- exempt volunteer
fire department under Section 501 (c)(3) of the Internal Revenue Code of 1986, as amended (the "Code ").
WHEREAS, the County has long relied on volunteer fire companies to assist the County in the provision of firefighting
services in County, ; and
of
WHEREAS, was organized and is operated to provide firefighting services in the
County, an area which is not provided with other firefighting services; and
WHEREAS,
is desirous of financing the cost of construction of a fire truck on a tax- exempt basis; and
WHEREAS, Section 150(e) of the Code sets forth certain prerequisites to
financing; and
area
being eligible for tax- exempt
WHEREAS, among the requirements set forth in Section 150(e) of the Code is the requirement that
required by written agreement with the County to furnish firefighting services in the area.
be
NOW, THEREFORE, in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the County and do hereby agree as follows:
1. County agrees to continue to support and its provision of firefighting services in the area
of County and to otherwise be of assistance to in a manner similar to the manner in which it supports
other volunteer fire departments operating in County,
2. agrees to continue to furnish firefighting services in the area of
County and otherwise to be a part of the County's coordinated firefighting system.
3. This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the County and
written.
WITNESS:
WITNESS:
entered into this Agreement as of the day and year first above
County,
[VOLUNTEER FIRE DEPARTMENT]
In
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(LETTER OF VERIFICATION)
(To be typed on County's Letterhead)
Date:
TO WHOM IT MAY CONCERN:
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The (number of) stations of the Fire Department, and the (number of) Volunteer Fire, Rescue and Ambulance Companies of
the County Volunteer Firemen's Association constitute the County Fire Service, which
provides all fire, rescue and emergency medical service in the County. In practice, there is no differentiation in the training, skill and
function between Career and Volunteer units.
The Volunteer Fire Department, Inc., provides primary fire, rescue and emergency medical service in
and its environs, supported by other Volunteer and Career units, and in turn, provides support to other units in the
County.
County, North Carolina, provides some financial and logistical support to the Volunteer Companies, since,
collectively, they save the taxpayers over dollars each year.
Sincerely,
Chief
Fire Department
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