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1995-020-RES WHEREAS, CITY COUNCIL DID HERETOFORE ON THE 9TH DAY OF JANUARY 1995 RESOLUTION NO. q~-O?O WHEREAS, the City Council of the City of Paris did heretofore on the 9th day of January, 1995, pass Resolution No. 95-004, which said Resolution was incorrect and requires correction; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, that Resolution No. 95-004, be, and the same is hereby amended to read as follows: "WHEREAS, the City Council of the City of Paris, did at its special meeting on September 19, 1994, in Ordinance No. 94-042, authorize the purchase of a 1995 Street Sweeper for use in the Sanitation Department, and thereafter did advertise for bids for furnishing said Street Sweeper, which bids for such were received until 3:00 P.M., Tuesday, October 25, 1994; and, WHEREAS, the best bid for such purchase was made by INDUSTRIAL DISPOSAL SUPPLY, Post Office Box 860707, Piano, Texas 75086, and it was awarded the bid for such equipment on November 14, 1994; and, WHEREAS, the Lease/Purchase Agreement with TYMCO EQUIPMENT LEASING COMPANY for the purchase of one 1995 TYMCO Model 600 Regenerative Air Street Sweeper is attached hereto as Exhibit A, and such Agreement should be approved; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, that the City Manager of the City of Paris, Michael E. Malone, be, and he is hereby authorized and directed to execute on behalf of the City of Paris the Lease/Purchase Agreement upon the terms and conditions shown in Exhibit A attached hereto, with TYMCO EQUIPMENT LEASING COMPANY, financing the purchase of a 1995 TYMCO Model 600 Regenerative Air Street Sweeper." PASSED AND ADOPTED this 13th day of February, 1995. ~h-= ~ Eric S. Clifford, Mayor Pro Tern ATTEST: f'< '\\ r--.. Lessee's P.O_ #1204 cuutomcr No. Agreement: No. Dealer No. 965000 941212 590000 LP.IISP./PURCUIISP. IIGRP.P.MENT TYMCO EQUIPMENT LEIISING COMPIINY TIIX-EXEMPT FINIINCE DIVISION LESSEE LESSOR . City of Paris. 135 1st street S.E_ Paris, TX 75461 903- "?85-7511 TYMCO, Inc. 225 E. InduGtrial Olvd. P. O. Oax 2360 Waco, TX 76703-2360 017-799-5516 DESCRIPTION OF EQUIPMENT ------------------------------------------------------------------------------------------ QUANTITY (TYPE, MODEL /\ND SERIIIL NUMOER) UNIT PRICE lIMOUNT ------------------------------------------------------------------------------------------ " , .1 TYMCO Model 600 REGENERATIVE AIR STREET SWEEPER Sweeper Serial No. Truck Serial No. Finance Amount $ 86,599.25 ------------------------------------------------------------------------------------------ TyPE OF ENTITY. (COUNTY , CITY, SCHOOL DISTRICT, ETC.): City ------------------------------------------------------------------------------------------ FULL LEASE TERM RENT PAYADLE MONTHLY RENTIIL PAYMENT lIMOUNT RENTIIL PIIYMENT SCHEOULE ---------------------------------------~-------------------------------------------------- ~ 1\DVJ\NCE RENTIIL 1\DVJ\NCE PIIYMENTS REMAINING PYMTS. 60 ~IONTHS AI\REIIRS PAYMENT $ NUMOER 1 NUMOER -2lli... MONTHLY RENTIIL TAX $ .00 1@$1,685.29 59@$1,685.29 ea. AFTER QUIIRTERLY TOTAL COMMENCEMENT SEMI':IINNUIILLY PIIYMEN'r $ DATE ANNUIILLY ------------------------------------------------------------------------------------------ EQUIPMENT LEIISE/PURCHASE IIGREEMENT In conoideration of the mutual covcnanto hereinafter contained, the partieD agree that Lessee ohall leaoe from the Leooor the property deocribed above (the "Equipment"), EJubject to the terms and conditiono oct forth herein. The agreement iD made upon the following termo and conditiono: 1. RENTAL. LeaDor and Leooce underotand and intend that the obligation of LCDoee to pay rent hereunder ahall conotitutc a current cxpcnoe of Leooce and ahall not in any way be conotrued to be a debt of Lcooee in contravention of any applicable conotitutional or , , atatutory limitationo or requiremento concerning the creation of indebtedneoo by Leaace, ,I EXHIBIT A Page 2 nor shall anything contained herein constitute a pledge of the general tax revenueD, funds or monicD of Leosce. LesDee Dhall pay rent cxcluoively from legally available fundo, in the amounto ~et forth both above and on the rent due dateD Det forth in the Schedule of Payments (Exhibit C) attached to the Certificate of Acceptance (Exhibit D), executed by LeDBee, by mailing the Dame to LCGoor at the addreoo Dpecified in Section 14(a). For purposeD of maJ~ing computationo under applicable regulations and rulingo under federal- income tax law, and aD oct fort}l in tile Schedule of paymcnto, a portion of each rent payment io paid ao, and rcprcoento payment of, intercot, and the balance of each rent payment io paid aD, and rcprcocnto payment of, principal. Each ycar'a rental payment in for the conoideration actually furniCihcd that year and each rental payme.nt is, aupported by the uoe of the equipment in each year. '1'he obligation of' Lccoce to make payment of rent, and to perform and obocrvc the agreement 0 contained in the Agreement, ahall be absolute and unconditional in all event!), except aD cxpreDDly provided herein. Notwithstanding any. diopute between LeDnee, Leenor, and any other perDon, Leasee ahall make all rent paymento when due andohall not withhold any rent payments pending final reDolution of ouch dioputc, nor ohall LeDaee aGocrt any right of setoff or counterclaim against ita obligation to make ouch paymcntG required under this Agreement, Leooee'o obligation to pay rent ahall not be abated through accident or unforeseen circumotancca. 2. LEASE TERM. (a) Commencement of LeaGc Term. The leace termo ahall commence on the date on which the Equipment io accepted by LeGoee ao indicated on the Certificate of Acceptance (the Commencement Date), and oha11 terminate on the last buoineoo day of Lessee's then current fiocal budget period (such period being hereinafter referred to as the "Original Term"): provided, however, that this Agreement shall be effective from and after the date of execution hereof. (b) Renewal of Lease Term. Upon expiration of the Original Term, this Leaae ohall automatically renew on a year-to-year baoio for the number of budget periodo necessary to compriae the Full Lease Term as set forth in Exhibit C attached hereto and made a. part hereof, unlesn Le!JGce givc!J written notice to Le!:H~or not leoo than 60 daya prior to the end of the then current term pursuant to oubpart (e) of this aection or Section 10, aD the caGe may be. Each renewal period i!J hereinafter referred to aD a "Renewal Termll, and all Renewal Termo, together with the Original Term, ohall comprise the "Full Leaae Term". The tcrmCi applicable t.o any Renewal Term shall be the same ao the~ termo applicable to the Original Term, except that the rent ohall be aa provided in the Schedule of PaymentD in Exhibit C. (c) Termination of LeaDe Term. Thc Leaoc Term will terminate upon the earlieot to occur of any of the following cvento: (1) the expiration of the Original Term or any Renewal Term and the nonrcncwal thereof in accordance with the termo hereof; (2) the purchase of the Equipment by Leooee purouant to Section 0 or 10; (3) a default by Lecoee or Leesor's election to terminate thio Agreement under Section 12; or (4) the payment by Lessee of all rentalo authorized or required to be paid by Lessee hereunder. (d) Continuation of Leaae Term by Lcaoee. Leaaee intenda, aubject to the provisiono of Dubpart (e) of this Bcction, to continue the Lease Term through the Original Term and all Renewal Terms for the Full LeaDe Term and to pay the rent hereunder. LeODee reaoonably believeD that legally available fundo in an amount sufficient to pay all rent for the Full Lcaoc Term can be obtained. Leaoee further intenda and covenanta to do all things lawfully within ita power to obtain and maintain fundo from which the rent may be paid, including making provioion for ouch rent to the extent neceosary in each budget oubmittcd and adopted in accordance with law, to UDC its bona fide beat efforto to have ouch portion of the budget approved, and to exhauot all available reviewo and appeal a in the event ouch portion of the budget io not approved. I Page 3 (e) Nonappropriation. In the event oufficient fundo are not appropriated for the payment of the rent required to be paid in the next nucceeding Renewal Term, and Las ace has no fundo legally available for rent from other oourceo, then Laaace may terminate thio Agreement at the end of the Original Term or the then current Renewal Term, aD the caoe may be, and Lococe ohal1 not be obligated to mak~ payment of the rent beyond the then current term. LeGoce agreeD to deliver notice to LeDDor of ouch termination at lenat 60 dayo prior to the cnd of the tl,en current term. If thin Agreement is terminated under thio Dub-part, Lcnocc agreeo, at Lcooee'o coot and expenac, peaceably to delivery the Equipment to LeDDor. In addition, LeGoce agreeo, at Lcasee'n coot and cxpenoe, to incur the neccooary cooto and expenoeo to bring the returned sweeper and truck chaooio up to factory rcm.::ll.-ket.ing otandardn. '1'0 t.he extent. lawful, Leooee covenanto that it will not, until the date on which the next ouccecding Renewal Term would have ended, expend or commit any fundo for the pUl.-chaoc or uce of equipment to be used for the Dame purponc aD, or a purpooc functionally equivalent to, the Equipment. Notwithotanding anything in thin J\greement to the .contrary, thc.provioiono of this sub-part shall !Iurvive termination of thio 1\grccment. 3. REPRESENThTIONS hND COVENhNTS OF LESSEE. LeGGee repreGcntn, covenanto and warranto to Lesnor ao followo: (a) Lennee in an entity dcncribed in Section l03{a) of the' Internal Revenue Code of 1986, aa amended; and will do or cause to be done all things necessary to preserve and keep in full force and effect itD exiotencc an ouch an entity. (b) Based upon the repreoentationo, covcnanto and warranties of Leaoar, the execution and delivery of thio Agreement by Leooce and performance of thin obligationo hereunder io not prohibited by the Conotitution and lawo of the otate Gpecified.on the Certificate of Acceptance (the "State"), and haa been duly authorized by re!lolution of the governing body of Lessee (a certified copy of which ahall be attached to the opinion of Lenseals counoel); and Leasee haD obtained ouch other approvalo an are necessary to conoumrnate this Agreement. All requiremcnto have been met, and procedures have occurred, neceoeary to ensure the enforceability of thio Agreement againot LesGee, and Lesaee has complied with such public bidding requiremcnto as may be applicable to this Agreement and the acquisition by Lessee of the Equipment hereunder. (c) Leonee has determined that a prescnt need exiots for the Equipment which need is not temporary or expected to diminioh. in the forcoccable future. The Equipment in eGocntial to and will be uoed by Leosee only' for the purpose of performing one or more governmental functions of Lecoce consictent with the permissible scope of Lessee'o authority and will not be used in a trade or buoineos of any person or entity. (d) LeDoee will annually, upon request, provide Leosor with a letter from the City'o accountant otating that fundn have been appropriated in the City's annual budget to continue thin lcaoe for the next renewal term. (e) The Equipment io, and ahall remain, pernonal property and when oubject to uoe by. Leaoee under this Agreement will not be or become fixtures. The LeGsee further warranto that thin lcaoe will not conGtitute a "private activity bond" within the meaning of Section 1111 of the Internal .Revenue Code in that LeG see will not subleaoe the Equipment, nor will Lecoce enter any management, output, or similar types of contracto where morc than 10 percent of the proceeds of the lease purchaoe agreement will be used for one or marc private buoineos USCD or where the payment of the principal of, or intereot on, more than 10 percent of the procecdo of thio Leaoe will be made, either directly or indirectly by payments, property, or monieD borrowed by private buoineoa uocro. (The term "private buoincoEJ une" meano any direct or indirect uoe in a trade or buoineon carried on by an individual or entity other than a state or local governmental unit, including uoe by the Federal Government or any agency thereof. h special exemption io provided for "exempt facility bondo" and SOl (C) (3) "tax exempt organization bondo". . , I Page 4 4. TITLE TO EQUIPMENT; SECURITY INTEREST. During the Full Leaoe Term, title to the Equipment ahall remain vented in the LeDDor. Upon exercioe by Leaoee of the purchase option granted in Section 10 of thin Leaoe, LeDGOr ahall deliver to Leoace by appropriate document a title to the Equipment, free and clear of all liens and encumbrances. In the event of a default aD aet forth in Section 12 or nonappropriation a8 aet forth in Section 2 (0), Leoace will Durrendcr pooocDoion of the Eqtlipment to LeDDor aD required by Scction 2(0) and release all claim or right to said Equipment accordingly. To secure the prompt payment and performance aD and when due of all of Lecoce's obligationo hereunder, and all other obligationo of Lcnsee to Leacer, both now in cxiotence and hereafter created, Lennce hereby grantn to LeGGor a first occurity intereot in the Equipment, and all replacements, nubntitutionn and altcrnativeo therefor and thereof and >aeceooiono thereto and all proceed!J (caoh and non-eaoh), including the proceedD of all inourance policion, thereof. LCOGCC agreco that with reopect to the Equipment LeODor ohall have all of the rightG and remedieD of a oe~urcd party under the Uniform Commercial Code a9 in effect in the State. Leogee may not di9poge of any of the Equipment without the prior written conocnt of LeDGOr, notwithotanding the fact that proceedo constitute part of the Equipment. 5. USE AND M1\INTENANCE. LesDee ohall UDC the Equipment in a manner conoiotent with the requirementfJ of all applicable in!>urancc policien,> and will not change the location of any Equipment .1.0 opecified in the Acceptance Certificate without the prior written consent of LesGor, which conoent Ghall not be unrcaGonably withheld. Leoace oha11 not attach the Equipment to any other item of equipment in such a manner that the Equipment may be deemed to have become an acceooion to or a part of ouch other item of equipment. Lesoce, at ita own expenee, will maintain the Equipment in aG good operating condition as when delivered to Len ace hereunder, ordinary wear and tear resulting from proper une thereof alone excepted, and will make all repairo reaoonable neceBoary for ouch purpose. In addition, if any component of the equipment ohall become damaged beyond repair, Leoaee at it9 own expenge, will within a rca90nable time replace ouch component, with replacement components which arc free and clear of all lieno or right of other and have a value and utility at lease equal to the components replaced. All componento which are attached to the Equipment which arc eooential to the operation of the Equipment or which cannot be detached from the Equipment without materially interfering with the operation of the Equipment or adveroely affecting the value and utility which the Equipment would have had without the addition thereof, shall immediately be deemed incorporated in the Equipment and subject to the terms hereof ao if originally leased hereunder, and subject to the aecurity interent of Lcooor in the Equipment. Lessee nhall not make any material alterationo to the Equipment without the prior written con Gent of LeDDor, which conocnt ahall not be unreaoon"ably withheld. Upon reaoonable advancc notice, LeG nor oha11 have the right to inspect the Equipment and all maintenance records with respect thereto, if any, at any reasonable time during normal buaincDo haura. 6. FEES; TAXES; OTHER GOVERNMENTAL AND UTILITY CHARGES. Lessee agrees to indemnify LeSBor against all titling, recordation, documentary otamp and other fecs, arioing at any time prior to or during the Leaoe Term, upon or relating to the Equipment or this Agreement. The partieD contemplate that the Equipment will be uDed for a governmental purpooe of Leooce and that the Equipment will be exempt from all taxeo preeently aooesoed and levied with reopect to pernonal property. In the event that the use, posoeosion or acquioition of the Equipment io found to be oubject to taxation in any form (except for net income taxes of Lessor), LeSDee will pay as they come due all taxes and governmental charges of any kind that may be aooeooed or levied againot the Equipment, as well ao all . utility and other charges incurred in the operation, maintenance and use of the Equipment. I Page 5 7. INSUIU\NCE. 1\t ita own expenoe, Leooce ahall keep the Equipment covered againDt looa due to fire and the rioko normally includeq in extended coverage, malicious mischief and vandalinm, for not Ie 00 than the Full Inourable Value of the Equipment; and Lea ace ahall aloo carry automobile inourance, including bodily injury liability and property damage liability with a oingle limit of not leoo than $1,000,000 per occurrence, or ouch greater or leaDer amount aD LeDDor may from time to time require on notice to Lecoce. 1\13 used herein, "l~ull InDurable Value" meana the full replacement value of the.Equipment or the then applicable Purchaoe Price dcoignated aD ouch on the Schedule of paymento, whichever is greater. All inourance ohall be in form and amount and with companies reasonably satisfactory to Leooor. nll inourance for 1000 or damage Dhall provide that looseD ahall be payable to Leaoor and LeDoce, ao their intcrcoto may appear, and Lecoee ohall utilize its best cfforto to have all clleekn to Duell loaaen delivered to LeoDor. LeaDor ahall be named ao an additional inoured with reDpcct to ouch liability inourance4 Lesoee ahall pay the premiumo and deliver to Leooor evidence oatiofactory to LeDGOr of ouch inaurance coverage. Each incurer ohall agree, by cnctorocmcnt furniohect to LeGDOr, that (a) it will give LeSDor 30 dayo prior written notice of the effective date of any material alteration or cancellation of ouch policy; and (b) in Durance aD to the intereot of any named additional inoured or 1000 payee other than Leooce ohall not be invalidated by any actiono, inaction6, breach of warranty or eonditiono or negligence of Leaoce with reopect to ouch policY4 If Lesoee inoureo oimilar propertieD againot caoualty 1008 by Belf-insurance, Leooec may oatlofy ita obligationo with reopcct to caoualty inourance hereunder by providing oelf-inourancc with reopcct to the Full Inourable Value of the Equipment by meana of an adequate in Durance fund. LeoGce ohall carry workmen'a compensation inGurance covering all employcco working on, in, near or about the Equipment, or demonstrate to the oatiofaction of LeoDor that adequate self-inaurance io provided, and shall require any other peroon or entity working on, in, or near or about the Equipment to carry ouch coverage, and will furnish to LeoDor certificates evidencing Buch coverage throughout the Leaoe Term. The Net Proceeds of the inaurance required hereby shall be applied as provided in Section 8. lis used herein "Net Proceeds" meano the a~ount remaining from the graDe procacdo of any inourancc claim or condemnation award after deduction of all expeneen (including attorney's fcee) incurred in the. collection of Buch claim or award. If LC90ee i8 a governmental entity and doc9 not maintain liability inourance as described above, Lessee agreeo that it will maintain a program of Gclf ineurance, either alone, or in cooperation with other governmental entitieD, that provideo coverage to Lessee in the form and amount otatcd above, but in any event, not leaD than the maximum exposure to Leoaee under any applicable governmental immunity rule, regulation, statute or law. Leaoee shall deliver to LeaDor evidence oatiafactory to Leaoor of ouch oelf-inourance coverage. 6. DAMAGE, DESTRUCTION I\NO CONDEHNI\~'ION: USE OF NET PROCEEDS. If prior to the termination of the Lease Term (a) the Equipment io damaged in whole or in part by casualty; or (b) title to, or the temporary use of, the Equipment or the estate of Lessee or Leosor in the Equipment shall be taken under the exercioc of the power of eminent domain by any governmental body or by any peroon acting under governmental authority; Leaaee and Leaoor will caUDa the Net Proceedo of any inourance claimo or condemnation award to be applied to Lesoee'o obligations by this section. If the Equipment is not deemed to be a total 1000, LeODce ohall, at ita expenoe (after the application of the Net Proceedo of any inourance claimo or condemnation award), cauoe the repair or replacement of the Equipment. In the event of total deotruction of the Equipment, Leooee shall pay to Leooor on the next rent due date (ao oet forth on the Schedule of Payments) which succeeds the date of ouch loos, an amount equal to the purchase price of the equipment I Page 6 less the total amount of all rento which repreoented equity in the equipment previously paid under thin Agreement, pluo rent due on ouch date, pluo any' other amounto then payable by Lessee hereunder. Upon such payment, the Leaoe Term ohall terminate, any oecurity interact of LeDDer in the Equipment ohall terminate, and Laesae will acquire unencumbered title to the F.quipmcnt aD provided in Section 10. If.LeDoee io not then in default hereunder, any portion of the Net procccdo in exceDD of the amount required to pay in full Leoece1o obligationo aD oct forth in thiD Section ohall be for the account of the LeBBee. LeDoee agreeD that if the Net proceedo arc inoufficient to pay in full Lecoee1s obligationo aD oet forth in thin Section, Leaoee ohall make ouch payments to the extent of any deficiency. 9. WARRANTY. ProductD and parto manufactured by TYMCO, INC., and all oerviceo performed by TYMCO, INC., arc Dubject to the applicable Warranty currently publiohed by TYMCO, INC., which Warranty io, by thio reference, incorporated herein. CopieD of oaid Warranty may be obtained from any office of TYMCO, INC., or from any authorized TYMCO dealer. LESSOR MAKES NO OTHER WnRRANTY EXPRESS OR IMPLIED REGnROING THE CnpnCITY OF THE REQUIREMENT OR THnT THE EQUIPMENT WILL SnTISFY TIlE REQUIREMENTS OF nNY LnW, REGULnTION OR SPECIFIcnTION OR TlInT TilE EQUIPMENT WILT. DE FIT Fon nNY pnRTICULnR PURPOSE. 10. PURCHASE OF EQUIPMENT DY LESSEE. The Lcosec will have an option to purchase and can cxerciBe that option to acquire title free and clear of all lieno, and thin Agreement will terminate provided Lecoce io not then in default upon the occurrence of either of the following events: (al the end of the Full Lease Term, upon payment in full of all rent and other amounts payable by Leo see hcreunder for the Full Lease Term; or (b) at the end of the Original Term or any Renewal Term, or any month within Bueh Original Term or any Renewal Term, aD Get forth in the column entitled "Principal Balance" within Exhibit C incorporated herein by thio reference, upon payment by Lecoce of the then applicable Purchase Price plUG all other numo then due by Lessee hereunder. 11. ASSIGNMENT: INDEMNIFICnTION. (a) nooignment. This ngreement and the interest of Lessee in the Equipment may not be sold, asoigned, oublet or encumbered by Lessee without prior written conoent of LeoDor. Thie A9rccment, and the obligations of Leaoee to pay rent hereunder, may be aooigncd and reaonigned in whole or in part to one or more' aosigneca by LeGGor subject to their terms of thiG LeaGe/Purchase Agreement at any time without the neceooity of obtaining the con!:icnt of Lc::;sec. Le!J!Jor agreeD to give notice of aaoignmcnt to LeDoce and upon receipt of ouch notice, Leooco agrees to make all payments to the aaoignee deoignatcd in the aooignment, notwithotanding any claim, defenoe or setoff (whether arioing from a breach of the Agreement or otherwise) that LCDBee may have againDt Leo80r'o aooigneeo. Leeoee agreeD to execute all documento, including noticeD of aooignmcnt and chattel mortgageo or financing otatemento which may reaeonably be requcotcd by Leasor or ita aoaigneeo to protect their intcreota in the Equipment and in thio Agreement. (b) Lessee agrees to indcmnify and hold harmless Lessor for any damage or injury of any kind, aricing out of the negligence or actionable conduct of Lasace, ita employees, agento, repreaentativc8 or contractoro, or any per Don or entity alleged to be an employee, agent, repreoentative or contractor of LCGoee. 12. EVENTS OF DEFnULT nND REMEDIES. (a) Events of Default. The following shall be Ilevento of defaultll under thin agreement and the term "defaultU ohall mean anyone or more of the following events: (1) failure by Leooee to pay any rent or other payment required to be paid hereunder at the time specified herein; or (2) failure by Lessee to oboerve and perform any other agreement on ita part to be observed in ouch time prior to ita expiration; (3) any otatement contained herein or furniohcd with respect hereto by or on behalf of Lea ace proving to have been faloe in any material reopect at the time that it wao made; or (4) the filing by Lcaoec of any petition or anowcr oecking I Page 7 . . reorganization, arrangement compooition, rcadjuotment, liquidation, moratorium or similar relief under any exioting or future bankruptcy, inoolvency, or other oimilar inoolvency or other similar lawn chall be filed and not withdrawn or diomiooed within GO dayo thereafter. (b) RemedicG on Default. Whenever any event of default chall have occurred and be continuing, LeoGor ohall have the right, at ito aole option without any further demand or notico, to exercise anyone or more of the following remedien: (1) with or without terminating thin 1\greement, retake poaoeaolon of the Equipment and dispose of the Equipment for the account of LeGoce, with the nct amount of all procecdlJ received by LODDcr to be applied to LCOGcc'G ob1i9<1tiono hCJ."cundcr, holding Lcoocc liable for the exceoo (if any) of (i) thc rent payable to Leooec hereunder to the end of the Original Term or then current Renewal Term, whichever io applicable, and any other amounts then payable by Lcooee hereunder, including but not limited to attorncy'o fcco, expenses and costs of reposoession, over (ii) the net proceeds ~eccived in connection with the dispooition of the Equipment; provided that the exceGO of the arnounto referred to in clauoe (ii) over the then applicable purchaoe Price and amounto referred to in clauoe (i) shall be paid to Leance; (2) require Lesaee at Leoace'a risk and cxpcnne promptly to return the Equipment in the manner and in the condition Gct forth in sectione 2(e} and 5; (3) if LaGGor is unable to rcpoDecoe thc Equipment for any rcacon, the Equipment shall be deemed a total loss and LCOGCC ohall pay to Leosor the amount due purnuant to Section 8; and (4) exercioc any other right or remedy which may be available to it under applicable law or proceed by appropriate court action to enforce the termo of thio Agreement or to recover damages for the breach of thio IIgreement ao to any or all of the Equipment. Nothing contained herein shall be conotrucd to provide any remedy of acceleration of the rental paymento. In addition, Lcooec will remain liable for all legal fees and other costa and expenoec, including court cooto, incurred by Leacor with reopect to the enforcement of any of the remedien listed above or any other remedy available to Lessor. (c) No Remedy Excluoive. No remedy available to Leooor io intended to be exclusive and every ouch remedy ohall be cumulative and ohail be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission to cxercinc any right accruing upon any default ahall impair any ouch right or Ghall be conotructed to be a waiver thereof, but any such right might be exercised from time to time and aG often ao may be deemed expedient. 13. TAX ASSUMPTION; COVENANTS. The partieD asoume that LeDsor can exclude from Federal grOGD income the interest portion of each Leaoe Payment oct forth in the amortization schedule under the column captioned "Intereat Paid". Lasace covenanto that it will (i) rcgiotcr thio Lcaoe and tranofero thereof in accordance with Section 149 (a) of the Code and the rcgulationo thereunder, (ii) timely file a statement with rcopect to thio Leaoe in the required form in accordance with Section 149{e} of the Code, (iii) not permit the property financed by this Lease to be directly or indirectly uoed for a private buoineoo UGe within the meaning of Section 141 of the Code, (iv) not take any action which reoulta, directly or indirectly, in the intereot portion of any Lease Payment not being excludable from Federal gr088 income purouant to Section 103 of the Code and will take any reaoonable action neceBoary to prevent ouch rcault, and (v) not take any action which results in thin Lease becoming, and w~ll take any rcaoonable action to prevent thio Leaoe from beeoming (a) an arbitrage obligation within the meaning of Section 140 of the Code or (b) federally guaranteed within the meaning of Section 149 of the Code. I Page 0 " ;, Lessee repreoento that in accordance with the above, it will report thio Leaoe to the Internal Revenue Service by filing form OOJO-G or OOJO-GC, whichever io appropriate. Lasoee underotando that failure to do 00 will cauoe the Leaoe to loDe ita tax exempt otatuo. Therefore, Lecoee agreeo that it if tailo to file the appropriate form, the interaot rate Det forth in the payment schedule will be adjuoted to an equivalent taxable intereot rate. Notwithotanding the earlier termination or expiration of thio Leaoe, the obligationo provided for in thio Section 13 ahall ourvivc ouch earlier termination or expiration. 14. MISCELLANEOUS. (a) Noticeo. All noticeD (excluding billings and communications in the ordinary couroe of buoincoo) hereunder chall be in writing, cent by certified mail, return receipts requected, addreoncd to the other party at ita reopectivc addreoo etated on the firG~ page of thin 1\greement or at ouch other addreco ac cuch party aha11 from time to time deoignatc in writing to the other party; ohall be effective from the date of mailing. " (b) Binding Effect. Thio 1\greement ohall inure to the benefit of and ohall be binding upon Lea cor and Leooee and their rcopective oucceoooro and aoolqne. (c) 1\pplicable Law. Thi~ 1\greement nhall be governed by and conatrued in accordance with the lawn of the County of McLennan, state of Texao. (d) Entire 1\greement Severability. Thio 1\greement con~titute~ the entire Agreement between LeG cor and Leooee. No waiver, conGent, modification or change of terms of t~ia Agreement ahall bind .either party unleUD in writing Gigned by both parti:es, and then ouch waiver, consent, modification or change ahall be effective only in the specific inotance and for the opecific purpooc given. There arc no underotandingo not opecified herein regarding thiG Agreement or the Equipment leaDed hereunder. Any provision of this 1\greement which io prohibited or unenforceable in any jurindiction shall, an to ouch juriodiction, be ineffective to the extent of ouch prohibition or unenforceability withqut invalidating the remaining provioiono hereof, and any ouch prohibition or unenforceability in any juriodiction ohall not invalidate or render unenforceable ouch provi'sion in any other jurlodiction. To the 'extent permitted by applicable law, Laoaee hereby waives any proviGion of law which rcndcra any provision hereof prohibited or unenforceable in any rCGpcct. (e) LeGDOr'S Right to Perform for Lesoee. If Leosee failo to perform or comply with any of its agreement 0 contained herein, Lessor shall have the right, but shall not be obligated, to effect ouch performance or compliance, and the amount of any out of pocket expenoeD and other reaoonable expenDeD of LeODor incurred in connection with the performance of or compliance with ouch 1\greement, together with intercat thereon at the rate of twelve percent (12\) per annum (or ouch leoser amount aD may be permitted by law), ahall be payable by LeDoee upon demand. I Page 9 " IN WITNESS WHEREOF, Lennee han cauned thin Leane to be duly executed under Deal. Ci ty of Paris LESSEE ny: (SEIIL) ----------Complete all blank lineD to thin point before oubmitting to Leooor---------- Accepted thin day of 119_ , ;." TYMCO, Inc. d/b/a TYMCO EQUIPMENT LEIISING COMPIINY LeaDor ny: 225 E. Industrial nlvd. Waco, Texan 76705 '" (SElIL) EXHIBIT B LEGAL COUNSEL OPINION Date: December 12, 1994 TYMCO, Inc. P.O. Box 236B Waco, TX 76703 RE: City of Paris Texas' , Lease/Purchase Agreement dated as of December 1 2 , 1994 , with TYM<X>. Inc. 'Gentlemen: As legal counsel to have examined (1) an City of Paris executed counterpart , (the IIDuyer'I), I of a certain Equipment Lease/Purchase , " Agreement (the "Agreement") dated December 1 2 , 19 94 , by and between TYM<X>, Inc. which, ,inter alia, provides , as Seller, and the Buyer, for the sale to and purchase by the Buyer of certain property (the "Property"), (2) an executed counterpart of Resolution No. , 19 , of the Duyer which, inter alia, execute the Agreement and (3) such other opinions, documents. have deemed neccDDary in connection with the following ., dated authorizes the Buyer to and matters of law aD I opinions. Based upon the foregoing, it is my opinion that: (1) The Buyer ia a municipal corporation, duly organized and exioting under the laws of the State of Texas , with the requisite power and authority to incur obligations the interect on which are exempt from taxation by virtue of section 103 of the Internal Revenue Code of 1954, as amended, to purchase the Property and to execute, deliver and perform its obligationo under the Agreement; (2) The Agreement and the other documents either attached thereto or required therein have been duly authorized, approved and executed by and on behalf of the Buyer and the Agreement ia a valid and binding obligation of th~ Buyer enforceable in accordance with ita termo; (3) The authorization, approval and execution of the Agreement and all other proceedings of the Buyer relating to the transactions contemplated thereby.have been performed in accordance with all open meeting lawo, public bidding lawo and all other applicable otate or federal laws; , ' ,\ Exhibit D Page 2 (4) There is no proceeding pending or threatened in any court or before any governmental authority or arbitration board or tribunal which, if adveraely determined, would adveroely affect the transactions contemplated by the Agreement or the security intereot of the Seller or its assigns, an the case may b~, in the Property. Respectfully submitted, By: , . .'.' .'i . ~ i EXHIOIT C SCHEOULE OF FfiYMENTS Date: December 12, 1994 figreement No. 941212 Customer No. 965000 TIllS SCHEDULE io ioaued purDuant to the Equipment Leaoe/Purchase Agreement dated.aa of parti&a to the All termo uoed December 12, 1994 , (the "figreement") between the Agreement to authorize inntallation of the Equipment listed herein. herein have the meaningo aocribcd to them in the Agreement. A. Payments. The paymento required under the l\greement for the Equipment designated on this Schedule are $ 1,685.29 beginning March 15 19 95 ,and continuing the 15th day of each month thereafter for the duration of the laaoe term (the "Agreement Payment Period"). The payments required under thin Schedule are made up of the total purchase price to the City of Paris, 1X of $ 86,599.25 and I. ,. , deferred interent chargen to maturity of $ 14,518.15 for a total Agreement price of $ 101,117.40 B. Deferred interest to maturity. Deferred interest charges to maturity aD Bet forth herein consint of cervices and other charges, plus interent at the the annual rate of 6.50 % on the Bum of the aforementioned service charges and other charges and the Equipment purchane price. C. Late paymentn. There will be a charge of 1.00 % per month based on the amount of any late paymentn from the due date thereof until paid. D. Fiocal year. The fiscal year of the underoigned Lecoco is from ". October 1 to SCDtf'mber 30 E. Prepayment and purchase schedule. The purchase price as provided in the figreement is an follown (to be prorated for dates not specified). Period The Purchase Price 1\.rnount as of End of that Period in: Original Term: 12/12/94 tl1ru 9/30/95 $77,461.90 Renewal term 1 10/01/95 thru 9/30/96 61,812.68 Renewal term 2 10/01/96 tl1ru 9/30/97 Renewal term 3 10/01/97 thru 9/30/90 45,115.41 27,299.89 Renewal term 4 10/01/98 thru 9/30/99 0,291.23 '. , Renewal term 5 10/01/99 thru 9/30/00 -0- F. Insurance. The Lessee hereby confirma that it has obtained the insurance coverage required by Section 7 of the Agreement and it covenants and agrees that such coverage shall be maintained in accordance with the terms and conditions of the Agreement. G. Equipment description. The Equipment subject to the Agreement is aa followa: Quantity Description/Serial No. PurchaDe Price One (1) TYMCO Model 600 Sweeper Serial II Truck Serial II REGENERATIVE AIR S'l'REm' SWEEPER $86,599.25 , " THE TERMS GOVERNING THIS SCHEDULE ARE CONTAINEO IN THE AGREEMENT REFERENCED ABOVE AND APPLY WITH THE SAME FORCE AND EFFECT AS IF SET FORTH FULL HEREIN. " The Agreement ahall not be effective unleaa this Schedule ia aigned by Lesaee and received by TYMCO, Inc. within thirty (30) daya of the date first above stated. In~addition, TYMCO, Inc. ahall not be bound by the Agreement until this Schedule is executed by an authorized officer of TYMCO, Inc. Lessee: City of Paris Lesoor: TYMCO, Inc. By: By: Name: Name: Kenneth J. Young Title: Title: Preaident Date: Date: " " " :,'