HomeMy WebLinkAboutResolution - 1905 - Lease Purchase Agreement - American Finance Group Inc - Equipment & Vehicles - 12/20/1984RESOLUTION41905
December 20, 1984
Agenda Item #27
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RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Lease
Purchase Agreement and Associated Documents for equipment and vehicles
between the City of Lubbock and American Finance Group, Inc., attached
herewith, which shall be spread upon the minutes of the Council and as
spread upon the minutes of this Council shall constitute and be a part of
this Resolution as if fully copied herein in detail.
Passed by the City Council this 20th day of December 9 1984.
ATTEST:
ALAN HENRY, MAYOR
anette Boyd, City Secretary
APPROVED AS TO CONTENT:
Robert Massengale, Afast. City Manager
APPROVED AS TO FORM:
1
vanalver,, Asst. clty Attorney
RESOLUTION #1905
EQUIPMENT LEASE/PURCHASE AGREEMENT
Lease No.
x Lessee Name Chi y of Lubbock
Address p- Ci. Rny Znnn a T obback- Texas 79457
Lessee Contact Rnhprt Nfaa,qpngal�Assistant City Manager
Phone r. 806 -762-6411
TEP14S AND CONDITIONS OF EQUIPMENT
LEASE/PURCHASE AGREEMENT
1. Lease.
Lessee requests Lessor to acquire the personal property
(herein called "Equipment") described in the attached
Delivery Order(s). Lessee agrees to lease said Equipment
from Lessor and Lessor agrees to lease the Equipment upon
written acceptance hereof signed at the Lessor's office by an
authorized employee upon the terms and conditions of this
Equipment Lease/Purchase Agreement (the "Lease"). Lessee
represents, covenants and warrants, and as requested by Lessor
will deliver an opinion of counsel to the effect, (1) that
it is a fully constituted political subdivision or agency of
the State where'the Equipment is located as set forth in
Section 6 and is authorized by the Constitution and laws of
such State and its own internal or administrative procedure
to enter into the transactions contemplated by this Lease
and to carry out its obligations hereunder and (2) that
Lessee and the individual signing this Lease on behalf of
Lessee have been duly authorized to execute and deliver this
Lease. Lessee agrees that it will do or cause to be done all
things necessary to preserve and keep the Lease in full force
and effect. Lessee represents, covenants, and warrants
that there are no pending or threatened lawsuits or
administrative or other proceedings contesting the authority
for, authorization or performance of or expenditure of funds
pursuant to this Lease; there are no circumstances, pending
or proposed, presently -affecting Lessee that could reasonably
be expected to alter its foreseeable need for the Equipment
or adversely affect its ability or willingness to budget
funds for the payment of funds due hereunder. Lessee further
represents, covenants and warrants that Lessee has complied
with all bidding requirements where necessary and by due
(2)
notification presented this Lease for approval and adoption
as a valid obligation on its part and that Lessee has
sufficient appropriations or other funds available to pay
all amounts due hereunder for the current fiscal year.
2. Equipment Delivery and Acceptance.
At the request of Lessee, Lessor agrees to order the
Equipment which Lessee has described in the Delivery Order(s)
from the.supplier of such Equipment but shall not be liable
for specific performance of this Lease or for damages if for
any reason the supplier delays or fails to fill the order.
Lessee shall accept such Equipment when and if delivered and
placed in good repair and working order and hereby authorizes
Lessor to add to this Lease the serial number of each item of
Equipment so delivered. Any delay in such delivery shall not
affect the validity of this Lease. Lessee shall have sixty
(30) days from date of delivery to accept such Equipment and
deliver an executed Equipment Acceptance Notice in the form
attached hereto. Notice of any defects must be given to
Lessor within thirty (30) days of delivery. In the event the
Equipment is not accepted by the Lessee within sixty (30)
days from the date of delivery and such acceptance is
unreasonably withheld by Lessee, Lessor, at Lessor's option,
shall have the right to cancel this Lease.
3. Warranties.
Lessor hereby assigns to Lessee for and during the term
of this Lease all manufacturer warranties and guarantees,
expressed or implied, issued on or applicable to the Equipment
and Lessor authorizes Lessee to obtain the customary services
furnished in connection with such warranties and guarantees
at Lessee's expense. LESSOR IS NOT A MANUFACTURER OR SUPPLIER
OF THE EQUIPMENT, AND MAKES NO WARRANTIES WITH RESPECT TO THE
EQUIPMENT, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
Lessor authorizes Lessee to enforce in its own name any
warranty, representation or other claim enforceable against
the manufacturer. Lessor assumes -no responsibility for
shipment, delivery, installation or maintenance and all
claims of Lessee with respect thereto, whether for delay,
.damage or otherwise, shall be made against supplier. Lessor,
at its option, may provide in its purchase order that supplier
agrees that any of such claims may be made by Lessee directly
against supplier. The obligation of Lessee to pay the Rental
Payments hereunder shall not be abated, impaired or reduced
by reason of any claims of the Lessee with respect to
equipment condition, quality, workmanship, delivery, shipment,
installation, defects or otherwise.
(3)
4. Lease Term.
This Lease shall become effective upon the execution
hereof. The term of this Lease shall commence on
the date the Equipment is accepted pursuant to Section 2
above and shall end at the expiration of the number of
periods indicated in Exhibit B to the Delivery Order(s)
(hereinafter the "Lease Term"). The Lease shall
automatically continue, except as provided for in SPcti.on
5 and Section 14 below.
5. Rent.
Lessee agrees to pay total Rental Payments set forth in
Exhibit B to the Delivery Order(s), including the financing
charge, equal to the amount specified in Exhibit B of the
Delivery Order(s). Said Rental Payments shall be payable
without notice or demand at the office of the Lessor (or such
other place as Lessor may from time to time designate in.
writing). Any notice, invoicing, purchase orders, quotations
or other forms or procedures required by Lessee of Lessor as
a condition precedent to payment shall be fully explained and
provided to Lessor or its assigns sufficiently in advance of
payment due date for the completion thereof by Lessor or its
assigns prior to such payment date. Except as specifically
provided in this Section, Rental Payments shall be absolute
and unconditional in all events and shall not be subject to
any set-off, defense or counterclaim.
Lessee reasonably believes that funds can be obtained
sufficient to make all Rental Payments during the Lease Term
and hereby covenants that it will do all things lawfully
within its power to obtain, maintain and properly request and
pursue funds from which the Rental Payments may be made,
including making provisions for such payments to the extent
necessary in each biannual or annual budget submitted for the
efforts to have such portion of the budget approved and
exhausting all available administrative reviews and appeals
in the event such portion of the budget is not approved. It
is Lessee's intent to make Rental Payments for the full Lease
Term if funds are legally available therefor and in that regard
Lessee represents that the use of the Equipment is essential
to its proper, efficient and economic operation and that
the functions performed by the Equipment could not and will not
be transferred to other equipment now available or which may
be subsequently acquired for use by Lessee during the Lease
Term.
(4)
In the event no funds or insufficient funds are
appropriated and budgeted or are otherwise available by any
means whatsoever in any fiscal year for Rental Payments due
under this Lease for the then current and/or the succeeding
fiscal period during the Lease Term, this Lease shall create
no obligation on the Lessee as to such current or succeeding
fiscal year and shall terminate on the last day of the fiscal
year for which appropriations were received without penalty or
expense to Lessee of any kind whatsoever, except as to the
portions or Rental Payments herein agreed upon for which funds
shall have been appropriated and budgeted or are otherwise
Available. No right of action or damages shall accrue to the
benefit of Lessor, its successors or assigns as to that
portion of this Lease which may so terminate except as
specifically provided in the last two paragraphs of this
Section 5. In the event of such termination. Lessee agrees to
peaceably surrender possession of the Equipment to Lessor or
its assignee on the date of such termination, packed for
shipment in accordance with manufacturer specifications and
freight prepaid and insured to any location in the continental
United States designated by Lessor. Lessor shall have all
legal and equitable rights and remedies to take possession of
the Equipment. Notwithstanding the foregoing, Lessee agrees
(i) not to cancel this Lease under this paragraph if any funds
are appropriated to it for the acquisition or retention of the
Equipment or similar equipment for the fiscal year in which
such termination occurs and Lessee covenants and agrees that
it shall not during the fiscal period next preceding or during
the Lease Term give priority or parity in the application of
funds to any other functionally similar equipment. This
paragraph shall not be construed so as to permit Lessee to
terminate this Lease in order to acquire any equipment from
another supplier or manufacturer or to allocate funds to
directly or indirectly perform essentially the same
applications for which the Equipment is intended. Lessee's
right to terminate this Lease as specified herein was not an
independently bargained for consideration but was included
solely for the purpose of complying with the requirements of
the Constitution and law of the State.
6. Location.
The Equipment shall be delivered and thereafter based at
the location specified in the Delivery Order(s) and shall not
be removed therefrom without Lessor's prior written consent.
7. Use; Repairs.
Lessee shall use the Equipment in a careful manner and
shall comply with all laws, ordinances, and regulations
(5)
relating to, and shall pay all costs, claims, damages, fees
and charges arising out of its possession, use or
maintenance. Lessee, -.at its own expense, shall keep the
Equipment in good repair and furnish all parts, mechanisms
and devices required therefor.
S. Alterations.
Lessee shall not make any alterations, additions or
improvements to the Equipment without Lessor's prior written
consent unless such alterations, additions, or improvements
do not impair the value of utility of the Equipment. All
such equipment and accessories may be removed by Lessee upon
termination of this Lease, provided that any resulting
damage shall be repaired at Lessee's expense. Any such
equipment or accessories not removed shall become the property
of Lessor.
9. Loss and Damage.
Lessee shall bear the entire risk of loss or damage to
all Equipment from any cause whatsoever, and no such loss or
damage of the Equipment nor defect therein nor unfitness or
obsolescence thereof shall relieve Lessee of the obligation
to pay rent or any other obligation under this Lease. In the
event of damage to any item of Equipment, Lessee shall
immediately place the same in good repair. If Lessor determines
that any item of Equipment is lost, stolen, destroyed or
damaged beyond repair, Lessee at the option of Lessor shall:
(a) replace the same at Lessee's sole cost and
expense as soon thereafter as possible and any such
replacement shall become subject to this Lease by
appropriate endorsement. Insurance proceeds received
by Lessor with respect to any such casualty shall be
paid to Lessee if such Equipment is replaced by Lessee
as required hereunder, or
(b) if Lessee fails to replace such Equipment as
required, Lessor shall require Lessee to do so or, at
Lessee's option shall terminate this Lease as to that
part of the Equipment lost, stolen, destroyed or damaged
beyond repair, and recover from Lessee the amount of the
Unpaid Principal Balance applicable to Equipment lost,
stolen, destroyed or damaged beyond repair as of the
last date on which a Lease Payment was made pursuant
to Exhibit B of the Delivery Order(s), together with
interest thereon at the rate of % per annum from
such payment date to the date of such termination, and
less insurance proceeds received and retained by Lessor
hereunder.
(S)
10. Insurance.
Lessee shall, during the term of this Lease, purchase
and maintain insurance or with Lessor's prior written consent
may self -insure, covering specifically all Equipment of every
description under this Lease against casualty occurrences,
including the perils of FIRE, LIGHTNING, WINDSTORM, HAIL,
EXPLOSION, AIRCRAFT VEHICLES, SMOKE, RIOT, CIVIL COMMOTION,
STRIKERS, LOCKED OUT WORKMEN OR OTHER LABOR DISTURBANCES,
VANDALISM AND MALICIOUS MISCHIEF, TRANSPORTATION HAZARDS,
THEFT, BURGLARY AND WATER DAMAGE in an amount equal to the
cost of replacement of all Equipment and with a company
approved by Lessor and shall carry public liability and
property damage insurance sufficient to protect Lessor from
liability in all events. The proceeds under this insurance
shall be payable to Lessee and Lessor as their interests may
appear under the terms and conditions of this Lease. Upon
acceptance of the Equipment and upon each insurance renewal,
Lessee shall deliver to Lessor a certificate evidencing such
insurance. In the event of any loss, damage, injury or
accident involving the Equipment, Lessee shall promptly
provide Lessor with written notice thereof and make available
to Lessor all information and documentation relating thereto.
11. Liens and Taxes.
Lessee shall keep the Equipment free and clear of all
levies, liens and encumbrances. Lessee shall pay, when due,
all charges and taxes (local, state and federal) which may
now or hereafter be imposed upon the ownership, leasing,
rental, sale, purchase, possession or use of the Equipment,
excluding, however, all taxes on or measured by Lessor's
income. Lessee may contest any such taxes prior to payment
provided such contest does not involve any risk of sale,
forfeiture or loss of the Equipment or any interest therein.
If Lessee fails to pay said charges and taxes when due,
Lessor shall have the right, but shall not be obligated, to
pay said charges and taxes. In any event, Lessee shall pay
Lessor the amount thereof upon demand whether or not Lessor
shall have advanced the funds for Leasee.
12. Indemnification.
Lessee shall indemnify and hold harmless Lessor and its
agents, employees, officers and directors from and, at Lessee's
expense, defend Lessor and its agents, employees, officers
and directors against any and all claims, actions, proceedings,
expenses, damages.or liabilities, including attorneys' fees,
arising in connection with the Equipment, including, without
limitation, its manufacture, selection, purchase, delivery,
possession, use operation or return and the recovery of
claims under insurance policies thereon. All amounts which
become due from Lessee under this Section 12 shall be payable
by Lessee within 30 days following demand therefor by Lessor
and shall survive the termination or expiration of this Lease.
(7)
13. Assignment and Sublease.
Without Lessor's prior written consent, Lessee shall not -
either (a) assign, transfer, pledge, hypothecate, grant any
security interest in or otherwise dispose of this Lease or
the Equipment or any interest in this Lease or said Equipment,
or (b) sublet or lend the Equipment or permit it to be used
by anyone other than Lessee or Lessee's employees. Lessor
.may assign its rights, title and interest in and to this
Lease, and all attachments hereto including Delivery Order(s),
to various assignee/investors, or their agents or trustees,
and/or grant or assign a security interest in this Lease
or the Equipment, in whole or in part and its assignee or
secured party may reassign this Lease. Lessee agrees that
this Lease may become a part of a pool of Lease obligations
at Lessor's option, and Lessor or its assignees may assign or
further assign either the entire pool or a fractionalized
interest therein. Each such assignee and/or secured party
shall have all of the rights of Lessor under this Lease.
Lessor and Lessee agree and acknowledge that any such
assignee will have made no representation or warranty, and.
therefore will assume no obligation, with respect to the title,
merchantability, condition, quality or fitness of the Equipment
for any particular purpose, or for the enforcement of any
warranties or service agreement made or assigned to Lessee by
the initial Lessor named herein. Lessee shall recognize and
acknowledge each such assignment and/or security interest.
Subject to the foregoing, this Lease inures to the benefit of
and is binding upon the heirs, executors, administrators,
successors and assigns of the parties hereto.
Upon assignment of Lessor's interests herein, Lessor
will cause written notice of such assignment to be sent to
Lessee which shall be sufficient if it discloses the name of
the assignee and address to which further payments hereunder
should be made. No further action will be required by Lessor
or by Lessee to evidence Lessee's consent to the assignment.
No assignment or reassignment of any of Lessor's rights,
title or interest in this Lease or the Equipment shall be
effective with regard to Lessee unless and until Lessee shall
have received a copy of the document by which the assignment
or reassignment is made, disclosing the name and address of
each such assignee, provided however, that if such assignment
is made to a Bank or Trust Company as paying or escrow agent
for holders of Certificates of Participation in the Lease, it
shall thereafter be sufficient that a copy of the Agent
Agreement shall have been deposited with Lessee until Lessee
shall have been advised that such Agent Agreement is no longer
in effect. During the Lease Term Lessee shall keep a complete
and accurate record of all such assignments in form necessary
to comply with the United States Internal Revenue Code, Section
103 (j), and the regulations, proposed or existing, from time
to time promulgated thereunder.
14. Options to Purchase.
Upon Lessee's timely payment of all Lease Payments
specified in Exhibit B to the Delivery Order(s), as well
payment of a nominal fee, Lessee shall have and shall be
to have properly exercised the option to purchase all of
E ui ent which is then subject to this Lease.
(8)
as
as
deemed
the
q Pm
In addition, at the written request of Lessee,/4elivered
thirty (.301 days prior to the purchase option date,/ which will
be on the last day of each fiscal year of the CjTy of LUBBOCK
commencing on the last day of the second fiscal year,
after the closing of said transaction, Lessor shall convey all
of Lessor's right, title and interest in and to the Equipment
to Lessee upon payment of the purchase option price set forth
in the Delivery Order(s), if Lessee is not on such date in
default pursuant to any term of this Lease. Upon satisfaction
by Lessee of such purchase consitions, Lessor shall deliver to
Lessee a full release of any right, title or interest of Lessor
in and to the Equipment.
Upon Lessee's constructive exercise of such option to
purchase and Lessor's actual or constructive delivery of a
quitclaim bill of sale covering the Equipment so purchased,
this Lease shall terminate, except as to obligations or
liabilities accruing hereunder and not discharged prior to
such termination.
15. Option To Prepay Lease Payments.
Provided Lessee has complied with the terms and conditions
of this Agreement, Lessee shall have the option, at any time, to
prepay the payments required by Exhibit B to the Delivery order(s)
through the end of the anticipated lease term by depositing
with a trustee pursuant to an escrow agreement, as agent and
bailee for Lessor and as collateral for the payment of the
payments required by Exhibit B, either moneys in -an amount
which shall be sufficient, or obligations of, or fully guaranteed
as to principal and interest by, the United States of America,
which shall not contain provisions permitting the redemption
thereof at the option of the issuer, the principal of and the
interest on which when due, and without any regard to reinvest-
ment thereof, will provide moneys which, together with the
moneys, if any, deposited with or held by such trustee, shall
be sufficient to pay when due the payments required by Exhibit B
hereto. Before executing an escrow agreement pursuant to the
preceding sentence, Lessee shall furnish Lessor with a written
certification from a certified public accountant or firm of
such accountants of nationally recognized standing in such
matters as to the sufficiency of the securities and cash so
deposited to pay the payments required by Exhibit B hereto
through the end of the lease term anticipated in Exhibit B. In
the event of the prepayment of the lease payments in the manner
(9)
provided in this Paragraph 15, Lessee may continue to use the
Property pursuant to this Agreement without further liability
for the payment of any lease payments hereunder and lessor
shall have a claim for lease payments solely upon the cash and/or
securities so deposited.
Neither the obligations nor moneys deposited with the
trustee pursuant to this Paragraph 15 nor principal or interest
payments on any such obligations shall be withdrawn or used for
any purpose other than, and such obligations, moneys and
.payments shall be held in trust by such trustee provided that
any cash received from such principal or interest payments on
such obligations deposited withsuch trustee, if not then needed
for such purpose, shall, to the extent practicable, be invested
in obligations of the type described in the first paragraph of
this Paragraph 15 maturing at times and in amounts sufficient
to pay when due the payments required by Exhibit B hereto, and
interest earned from such reinvestments shall'be paid over to
Lessee, as received by such trustee, free and clear of any
trust, lien or pledge.
16. Title to Leased Equipment; Security Agreement.
Title to the Equipment is deemed to be in Lessee so long
as Lessee shall not be in default pursuant to Section 18 below
and/or this Lease shall not have been terminated pursuant to
the provisions of Section 5. At the instant this Lease shall
become null and void under Section 5, above, or in the event
of default by Lessee under Section 18, title shall be revested
in and shall revert to Lessor free of any right, title or
interest of Lessee unless Lessor elects otherwise. Lessee
shall have no right, title or interest in the Equipment or any
additions, repairs, replacements or modifications thereto
except as expressly set forth in this Lease.
Check (X2 only the applicable provision below:
To secure all of its obligations hereunder, Lessee
hereby grants to Lessor, and its heirs, successors, assigns
and per representatives, the Lease and payments due under
this Lease. Lessee agrees that this Lease may be filed as a
financing statement evidencing such security interest, and
agrees to execute and deliver all financing statements and
other instruments necessary or appropriate to evidence such
security interest. Lessee further agrees that the Uniform
Commercial Code shall apply as between the parties hereto and
assignees of Lessor.
Lessee agrees to -execute and deliver to Lessor, upon
request, financing statements or other instruments required
to perfect and continue the lien and security interest granted
herein in accordance with the laws of the State.
(.10 )
17. Personal Property.
The Equipment is, and shall at all times during the
Lease Term be and remain, personal property.
18. Events of Default.
Lessee shall be deemed to be in default hereunder upon
the happening of any of the following events of default:
Ca) Lessee shall fail to make any Rental Payment,
or to pay any other payments required to be paid
hereunder, except as specifically allowed by Section 5
hereof, or
(b) Lessee shall fail to keep any other term,
covenant or condition contained herein, or
Cc) Any representation or warranty made by Lessee
hereunder shall be untrue in any material respect as
of the date made, or
(d) Lessee shall make, permit or suffer any
unauthorized assignment, transfer or other disposition
of this Lease or any interest herein, or any items of
Equipment or any interest therein,or
(e) Lessee becomes insolvent or admits in writing
its inability to pay its debts as they mature or applies
for, consents to, or acquiesces in the appointment of a
trustee or,receives for the Lessee or a substantial
part of its property; or in the absence of such applica-
tion, consent or acquiescence, a trustee or receiver
is appointed for Lessee or a substantial part of its
property and is not discharged within sixty (60) days;
or any bankruptcy, reorganization, debt arrangement,
moratorium, or any proceeding under any bankruptcy or
insolvency law, or any dissolution or liquidation
proceeding, is instituted by or against Lessee and, if
instituted against Lessee, is consented to or acqui.sced
in by Lessee or is not,dismissed within sixty (60) days.
19. Re— metes of Default.
Upon the occurrence of an event of default as specified
in Section 18 of this Lease which Lessee shall fail to remedy
within a period of 10 days of notice of such event of default.
Lessor shall have the right, at•its option without any further
demand or notice, to pursue any one or more of the following
remedies:
(a) By written notice to Lessee, declare an amount
equal to all remaining Rental Payments due during the
Lease Term to be immediately due and payable., whereupon
the same shall become immediately due and payable to the
extent permitted by State law:
20.
(b) At the sole discretion of Lessor, enter and
take possession of the Equipment enforcing the Lease or
terminating the Lease, and repossess the Equipment and
sell or lease the Equipment or sublease it for the
account of Lessee, holding Lessee liable for all payments
due up to the effective date of such selling, leasing
or subleasing and for the difference in the purchase
price, rental and other amounts paid by the purchaser,
lessee or sublessee pursuant to guch sale, lease or
sublease and -the amounts payable by Lessee hereunder;
and
(c) Take whatever action at law or in equity may
appear necessary or desirable to collect the payments
then due and thereafter to become due, or to enforce
performance and observance of any obligation, agreement
or covenant of Lessee under this Lease, in which event
Lessee shall be liable for any and all costs and expenses
(including but not limited to reasonable attorneys' fees)
incurred by Lessor in connection therewith.
Notices.
All notices to be given under this Lease shall be made
in writing and mailed, postage prepaid, by first class,
certified mail, return receipt requested to the other party
at its address set forth herein or at such address as the party
may provide in writing from time to time. Any such notice
shall be deemed to have been received five days subsequent to
mailing.
21. Section Headings.
All section headings contained herein are for convenience
of reference only and are not intended to define or limit the
scope of any provision of this Lease.
22. Governing Law.
This Lease shall be governed by the provisions hereof
and by the laws of the State where the Equipment is located.
23. Deliver of Related Documents.
Lessee wil execute or provide, as required by Lessor, the
following documents and information satisfactory to Lessor:
(_a) Equipment Acceptance Notice;
(.b). Legal opinion of counsel as described in
Paragraph 1 above;
(c) Statement of Lessee describing the essential
functions and uses of the Equipment;
(d) Documents evidencing title and delivery;
(12 )
(e) Maintenance contract regarding Equipment;
(f) Uniform Commercial Code Financing Statements;
(g) Certificates of liability and casualty
insurance naming Lessor and assigns as loss payees;
(h) Invoicing instructions;
Current financial statements; and
(j) Other documents as reasonably requested by
Lessor.
24. Entire Agreement; Waiver.
This Lease, together with the Delivery Order(s) and other
attachments hereto, and other documents or instruments executed
by Lessee and Lessor in connection herewith, constitutes the
entire agreement between the parties with respect to the
Equipment and this Lease shall not be modified, amended, altered
or changed except with the written consent of Lessee and Lessor.
Any provision of this Lease found to be prohibited by law shall
be ineffective to the extent of such prohibition without
invalidating the remainder of this Lease. The waiver by Lessor
of any breach by Lessee of any term, covenant or condition
hereof shall not operate as a waiver of any subsequent breach
thereof.
25. Miscellaneous
(a) At any reasonable times, Lessor or its authorized
representative may upon request inspect the Equipment and the
books and records of Lessee with respect thereto at the respective
locations thereof.
(b) No covenant or obligation herein to be performed
.-by Lessee may be waived except by the written consent of Lessor
and a waiver of any such covenant or obligation or a forebearance
to invoke any remedy on any occasion shall not constitute or be
treated as a waiver of such covenant or obligation as to any
other occasion and shall not preclude Lessor from invoking such
remedy at any later time prior to Lessee's cure of the condition
giving rise to Lessor's right to exercise such remedy.
(c) Lessor hereunder shall have the right at any
time or times, by notice to Lessee, to designate or appoint any
person or entity to act as agent or trustee for Lessor for any
purposes hereunder.
.. (d) Use of the neuter gender herein is for purposes
of convenience only and shall be deemed to mean and include the
masculine or feminine gender whenever and wherever appropriate.
26. Special Stipulations.
Any Amendments to standard language will be set forth in
Exhibit A attached hereto ("Special Stipulations"). .
BEAR, STEARNS & COMPANY
By: Name of Lessee: city of T aibba.k
Title: Address of Lessee: -,p- a -Rox 2000L—
Lubbock Texas 79457
B;
T:
W.
s
FIRST AMENDMENT
TO
TRUST AGREEMENT RELATING
TO AN
EQUIPMENT ACQUISITION
PROJECT
by and among
THE CITY OF LUBBOCK, TEXAS,
AMERICAN FINANCE GROUP, INC.
and
FIRST NATIONAL BANK AT LUBBOCK,
as Trustee
,
This FIRST AMENDMENT, dated as of April 20, 1985, amends
that certain TRUST AGREEMENT RELATING TO AN EQUIPMENT
ACQUISITION PROJECT, dated as of February 13, 1985 (the "Trust
Agreement") by and among THE CITY OF LUBBOCK, TEXAS (the
"City"), AMERICAN FINANCE GROUP, INC. ("AFG") and FIRST
NATIONAL BANK AT LUBBOCK (the "Trustee").
WHEREAS the City, AFG and the Trustee entered into the
Trust Agreement for the purpose of facilitating a municipal
lease program for the benefit of the City, pursuant to which
AFG would become the owner and lessor of certain equipment to
be leased to the City; and
WHEREAS, pursuant to Section 4.02 of the Trust Agreement
funds will be disbursed by the Trustee in payment for the
equipment upon receipt by the Trustee of a requisition
requesting disbursement executed by both the City and AFG
certifying compliance by the City with certain specified
conditions precedent to funding; and
WHEREAS AFG has assigned and transferred all its right,
title and interest in and to the equipment, the lease with the
City, the Trust Agreement and all related documents to the
Trustee for the benefit of the purchasers of Tax -Exempt
Financing Trust Certificates issued by the Trustee in
accordance with Article III of the Trust Agreement; and
WHEREAS the parties hereto desire that AFG no longer be
required to execute the requisition requesting disbursement
required by Section 4.02 of the Trust Agreement;
NOW, THEREFOR, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree that Section 4.02 of the Trust Agreement
shall be amended by deleting any requirement that AFG execute
or in any way review or approve any requisition requesting.
disbursement. From and after the date hereof all such
requisitions requesting disbursement shall be executed by an
Authorized Officer of the City only.
No other amendment of or change in the Trust Agreement is
effected hereby.
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4
IN WITNESS WHEREOF, the parties hereto have caused this
First Amendment to be executed and delivered as of the date
first above written.
THE CITY OF LUBBOCK, TEXAS
Attest:
B By:
Title: City Secretary Titl
Attest:
FIRST NATIONAL BANK AT LUBBOCK
as Trustee
By., - C_. - B _ .
J
WANDAAIMBOURG / ASSISTANT VICE FRESIDENI
Title: Title: UG{ AFFIGER
AMERICAN FINANCE GROUP, INC.
By: 1 �.• i� w� (n�
Title: ASSO-CAil. IrGqetJ &w."I
-2-
therefrom. repossessed by Lessor .
L ui sent returned to Le"C use E quip m eat for any .
With respect to any q p Lesson a ay
cant to subparagraph (4) above,
• h � credit
sale, or rrleue by
to ,
'� ver if this Lease has been termer C�� � � has not been term Less"
purpose whatsoever vale or public, such Eq*ment, L
Lessor shall either sell nese at a private
by Lessor of nay uidated
Lessor• In the event of the sale or with recover from Law" as ua to �e lesser
shall fable for, and Le"CT say and not as a penalty, an asount eq or tb) the sun of
es for breach of this Least' a as of the date of the default,
danag Mated Loss Yalu nee of the lease
of ta) 115 of the n�of rent which would have accrued far the balance
6) the entire asou n computed fros the date of Lessees d=ab a Sus al Sc tiedule
term of such Equipme ventage factor ria Esq jt 2 to Bents
equal to the per' livable to ui stat, tvhich amount rtprt
as aunt eq Yalut') app such Eq p
mum
stipulated Loss •• the proceeds
es
'matt, as of the date of the a end of the lease
ters), U"of 60 costs
Leuor's estisates
would be at the after first deducting therefrom
value of such Equipmentof such Lquipment, Tecoaditi�oning, sale, ie -leasing,
of any Paye s r ....sejeasing a re a!"s sent.
and a:pease: of ....session, storag , p ect to such EQ�p
reasonable attorney`s fees and collection fees with resp for say
m ent to Lessor or Lessor is unable, any
2f Lessee fails to deliver any l(qp sent, then with respeCt to such Equip
with recover from Lessee as liquidated
season, to effect repossession of any Eq�p equal to the sus of
end Lessor say f°' nalty, an amount
Lessee •hall be liable far, Lease, and riot as a pe
dam ages for brah aems ) and 0 above for such 9q�pment.
the asaunts specifiedossessed by Lessor, as afore.Ca Lessees au
-
senis re say to, Or Pep
Whether or not any IS am and Leaar say f ravi recdate of Lessee s default.
fid, fx
Lessee Phan also be liable for,
unpaid rent and other unpaid suss that accrued prior
Lessor say aLo recover a�zne Lessee fees � osts and
fees of collection
In penDeaddition n the f g without lisitatioa I any le of it tigh ar remedies hereunder.
azpeases, including
ageDdes, incurred by Lessor in ezerc sing a seat of the
Ltssor say receive � recover p y
since pyQsuaat to the foregoing above earlier than Lessor
specified in subparagraph (a) or ite.ss W and tis.) Lessee`s default, such
amounts sp d to receive or recover Pame by seven percent t? Z)
would otherwise be entitle sent value at the me of se interest at
asaunts shall be discounted to
O1e' pre after such discount,
r annus, and there shall be added to such as he da
pe coon 6 tb) hereof Eras the date of Lessee`s default up to e
the rate specMed in Se
date of the payment of such asount to Leaoz. . n determines that any
court of loapatent �n dietyo such deter
In the event that any or unenforceable fa wee iitt sustained s s result of
pre�on of this Section ZI is invalid
. • s establishing dasagrecover
a�atioa shall not prohibit Lessor fro in vhich lessor seeks to
action or inpCecdsag meat shall not bar an action for
any breach of this Lease is iron yr resale of any Eq p• of an
suer dosages. Any repo" as hereinbefore proided, and the brle Tepossess
dasages for breachoof a�sen esgaiast Lessee shall not
bar Lessors rig
action oc the entry
any or sal. E quips eat'
provided is favor of Lessor, Ob&U not be deemed to is
suLtive and shall be in addition to sri other sesedsas
The " t shah a euo
ezclusive, but is equity or baukruptc7-
Lessor's favor ex3stini laws Lessees
Lesso