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R-93-09-09-9C - 9/9/1993EQUIPMENT LEASE PURCHASE AGREEMENT This EQUIPMENT LEASE PURCHASE AGREEMENT (the "Agreement"), dated as of September 3, 1993, and entered into between Security Capital Corporation, a Kansas Corporation ( "Lessor "), and the City of Round Rock, Texas, a body corporate and politic existing under the laws of the State of Texas ( "Lessee "). WITNESSETH: WHEREAS, Lessor desires to lease the Equipment, as hereinafter described in Exhibit "A ", to Lessee and Lessee desires to lease the Equipment from Lessor subject to the terms and conditions of and for the purposes set forth in this Agreement; and WHEREAS, Lessee is authorized under the constitution and laws of the State of Texas to enter into this agreement for the purposes set forth herein; NOW, THEREFORE, in considerations of the premises and the mutual covenants and agreements herein set forth, Lessor and Lessee do hereby covenant and agree as follows: ARTICLE I Section 1.01. Definitions. The following terms will have the meanings indicated below unless the context clearly requires otherwise. "Agent" means any agent for the Registered Owners, if any, to which all or a portion of Lessor's right, title, and interest in, to and under this Agreement and the Equipment may be assigned for the benefit of the Registered Owners. "Agreement" means this Equipment Lease Purchase Agreement and any schedule or exhibit made a part hereof by the parties hereto, together with any amendments to the Agreement made pursuant to section 13.07. "Code" means the Internal Revenue Code of 1986, as amended. "Commencement Date" is the date when the term of this Agreement and Lessee's obligation to pay rent commences, which date shall be the earlier of (i) the date on which the Equipment is accepted by Lessee in the manner described in Section 5.01, or (ii) the date on which sufficient monies to purchase the Equipment are deposited for that purpose with an escrow agent. "Equipment" means the property described in Exhibit "A ", Equipment Description, and all replacements, repairs, restorations, modifications and improvements thereof or thereto made pursuant to Section 7.01 or Article VIII. "Escrow Agreement" means the Escrow Agreement, dated as of the date hereof, among Lesscr, Lessee and Boatmen's Trust Company, as Escrow Agent. "Event of Default" means any event of default described in Section 12.01. "Issuance Year" means the calendar year in which the Commencement Date occurs. "Lease Participation Certificates" means certificates evidencing a right to receive a pro rata share of Rental Payments and Purchase Price Payments. "Lease Term" means the Original Term and all Renewal Terms. "Lessee" means the entity described as such in the first paragraph of this Agreement, its successors and its assigns. "Lessor" means the entity described as such in the first paragraph of this Agreement, its successors and its assigns. "Original Term" means the period from the Commencement Date until the end of the budget year of Lessee in effect on the Commencement Date. "Purchase Price" means the amount designated as such on Exhibit 0 hereto that Lessee may, in its discretion, pay to Lessor to purchase the Equipment. 1 "Registered Owners" means the registered owners of Lease Participation Certificates. "Renewal Terms" means the renewal terms of this Agreement, each having a duration of one year and a term coextensive with Lessee's budget year. "Rental Payments" means the basic rental payments payable by Lessee pursuant to Section 4.01. "Rental Payment Date" means the date upon which any Rental Payment is due and payable as provided in Exhibit B. "State" means the state in which Lessee is located. "Vendors" means the manufacturer of the Equipment as well as agents or dealers of the manufacturer from whom Lessor purchased or is purchasing the Equipment. ARTICLE 11 Section 2.01. Representations and Covenants of Lessee Lessee represents, covenants and warrants for the benefit of Lessor as follows: (a) Lessee is a public body corporate and politic duly organized and existing under the constitution and Laws of the State with full power and authority to enter into this Agreement and the transactions contemplated hereby and to perform all of its obligations hereunder. (b) Lessee has duly authorized the execution and delivery of this Agreement by proper action by its governing body at a meeting duly called, regularly convened and attended throughout by the requisite majority of the members thereof or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. (d) Lessee has, in accordance with the requirements of Law, fully budgeted and appropriated sufficient funds for the current budget year to make the Rental Payments scheduled to come due during the current budget year, and to meet its other obligations for the current budget year, and such funds have not been expended for other purposes. (e) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a public body corporate and politic. (f) Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition by Lessee of the Equipment, except that future acquisitions of items of Equipment shall be acquired by Lessee pursuant to competitive bids in compliance with applicable law. (g) During the Lease Term, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee's authority. (h) Lessee will annually provide Lessor with current financial statements, budgets, proofs of appropriation for the ensuing budget year and other such financial information relating to the ability of Lessee to continue this Agreement as may be requested by Lessor. (i) Lessee will comply with all applicable provisions of the Code, including without limitation sections 103 and 148 thereof, and the applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rental Payments from gross income taxation. (j) Lessee will use the proceeds of this Agreement as soon as practicable and with all reasonable dispatch for the purpose for which the Agreement has been entered into. No part of the proceeds of the Agreement shall be invested in any securities, obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of issuance of the Agreement, would have caused any portion of the Agreement to become "arbitrage bonds" within the meaning of Section 103(6)(2) or Section 148 of the Code and the applicable regulations of the Treasury Department. Section 2.02. Certification as to Arbitrage. Lessee hereby represents as follows: 2 (a) The estimated total costs of the Equipment will not be less than the total principal amount of the Rental Payments. (b) The Equipment has been ordered or is expected to be ordered within six months of the Commencement Date, and the Equipment is expected to be delivered and installed, and the Vendor fully paid, within one year of the Commencement Date. (c) Lessee has not created or established, and does not expect to create or establish, any sinking fund or other similar fund (i) that is reasonably expected to be used to pay the Rental Payments, or (ii) that may be used solely to prevent a default in the payment of the Rental Payments. (d) The Equipment has not been and is not expected to be sold or otherwise disposed of by Lessee, either in whole or in major part, prior to the last maturity of the Rental Payments. (e) To the best of our knowledge, information and belief, the above expectations are reasonable. (f) Lessee has not been notified of any listing or proposed listing of it by the Internal Revenue Service as an issuer whose arbitrage certificates may not be relied upon. ARTICLE III Section 3.01. Lease of Equipment. Lessor hereby demises, leases and lets to Lessee, and Lessee rents, leases and hires from Lessor, the Equipment in accordance with this Agreement for the Lease Term. The Lease Term may be continued, solely at the option of Lessee, at the end of the Original Term or any Renewal Term for an additional Renewal Term up to the maximum Lease Term set forth in Exhibit 8 hereto. At the end of the Original Term and at the end of each Renewal Term until the maximum Lease Term has been completed, Lessee shall be deemed to have exercised its option to continue this Agreement for the next Renewal Term if Lessee budgets and appropriates or otherwise makes legally available funds to pay Rental Payments for such Renewal Term, unless Lessee shall have terminated this Agreement pursuant to Section 10.01. The terms and conditions during any Renewal Term shall be the same as the terms and conditions during the Original Term, except that the Rental Payments shalt be as provided on Exhibit 8 hereto. Section 3.02. Continuation of Lease Term. Lessee concurrently intends to continue the Lease term through the Original Term and all Renewal Terms and to pay the Rental Payments hereunder. Notwithstanding the foregoing, the decision whether or not to budget and appropriate funds or to extend this agreement for any Renewal Term is solely within the discretion of the then current governing body of Lessee. Section 3.03. Nonappropriation. Lessee is obligated only to pay such Rental Payments under this Agreement as may Lawfully be made from funds budgeted and appropriated for that purpose during Lessee's then current budget year. Should Lessee fail to budget, appropriate or otherwise make available funds to pay Rental Payments following the then current Original Term or Renewal Term, this Agreement shall be deemed terminated at the end of then current Original Term or Renewal Term. Lessee agrees to deliver notice to Lessor of such termination at Least 90 days prior to the end of then current Original Term or Renewal Term, but failure to give such notice shall not extend the term beyond such original Term or Renewal Term. If this Agreement is terminated in accordance with this Section, Lessee agrees to peaceably deliver the Equipment to Lessor at the location(s) to be specified by Lessor. Section 3.04. Nonsubstitution. To the extent permitted by law, Lessee agrees that if this Agreement is terminated in accordance with Section 3.03 Lessee will not purchase, lease or rent equipment performing functions similar to those performed by the Equipment for a period of 360 days following the end of the then current Original Term or Renewal Term; provided this restriction shall not be applicable in the event the Equipment shall be sold, re- leased or otherwise disposed of by Lessor and the amount received from such disposition, Less all costs of such sale or disposition, is sufficient to pay the then applicable Purchase Price. This Section shell remain in full force and effect notwithstanding the termination of this Agreement. ARTICLE IV Section 4.01. Rental Payments. Lessee shall promptly pay Rental Payments, exclusively from Legally available funds, in Lawful money of the United States of America to Lessor on the dates and in such amounts as described on Exhibit 8 hereto. Lessee shall pay Lessor a charge on any Rental Payment not paid on the date such payment is due at the rate of 120 per annum or the maximum amount permitted by law, whichever is less, from such date. A portion of each Rental Payment is paid as and represents payment of, interest, as set forth on Exhibit B hereto. 3 Section 4.02. Rental Payments to Constitute a Current Expense of Lessee. Lessor and Lessee understand and intend that the obligation of Lessee to pay Rental Payments hereunder shall constitute a current expense of Lessee and shall no in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement governing the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general tax revenues, funds or moneys of Lessee. Section 4.03. RENTAL PAYMENTS TO BE UNCONDITIONAL. EXCEPT AS PROVIDED IN SECTION 3.03, THE OBLIGATIONS OF LESSEE TO MAKE RENTAL PAYMENTS AND TO PERFORM AND OBSERVE THE OTHER COVENANTS AND AGREEMENTS CONTAINED HEREIN SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS WITHOUT ABATEMENT, DIMINUTION, DEDUCTION, SET -OFF OR DEFENSE, FOR ANY REASON, INCLUDING WITHOUT LIMITATION ANY FAILURE OF THE EQUIPMENT TO BE DELIVERED OR INSTALLED, ANY DEFECTS, MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES IN THE EQUIPMENT OR ANY ACCIDENT, CONDEMNATION OR UNFORESEEN CIRCUMSTANCES. ARTICLE V SECTION 5.01. Delivery, Installation and Acceptance of the Equipment. Lessee shall order the Equipment, cause the Equipment to be delivered and installed at the location specified on Exhibit A to this Agreement and pay any and all delivery and installation costs in connection therewith. When the Equipment has been delivered, installed, tested and accepted by Lessee, Lessee shall immediately accept the Equipment and evidence said acceptance by executing and delivering to Lessor an acceptance certificate acceptable to Lessor, included herein as Exhibit C. Section 5.02. Enjoyment of Equipment. Lessor shall provide Lessee with quiet use and enjoyment of the Equipment during the Lease Term, and Lessee shall peaceably and quietly have, hold and enjoy the Equipment during the Lease Term, without suit, trouble or hindrance from Lessor, except as otherwise expressly set forth in this Agreement. No Registered Owner shall interfere with such quiet use and enjoyment during the Lease Term so long as Lessee is not in default under this Agreement. Section 5.03. Location; Inspection. Once installed, the Equipment wilt not be moved from the location specified an Exhibit A to this Agreement without Lessor's consent, which consent shalt not be unreasonably withheld. Lessor shall have the right at all reasonable times during regular business hours to enter into and upon the property of Lessee for the purpose of inspecting the Equipment. Section 5.04. Use and Maintenance of the Equipment. Lessee will not install, use, operate or maintain the Equipment improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by this Agreement. Lessee shall provide all permits and licenses, if any, necessary for the installation and operation of the Equipment. In addition, Lessee agrees to comply in all respects with all applicable laws, regulations and rulings of any legislative, executive, adninistrative or judicial body; provided that Lessee may contest in good faith the validity or application of any such law, regulation or ruling in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest of Lessor in and to the Equipment or its interest or rights under this Agreement. Lessee agrees that it will, at Lessee's own cost and expense, maintain, preserve and keep the Equipment in good repair and working order. Lessor shall have no responsibility to maintain, repair or make improvements or additions to the Equipment. Upon the request of Lessor, Lessee will enter into a maintenance contract for the Equipment with Vendor. ARTICLE VI SECTION 6.01. Title to the Equipment. Upon acceptance of the Equipment by Lessee, title to the Equipment shall vest in Lessee subject to Lessor's rights under this Agreement; provided that title shall thereafter immediately and without any action by Lessee vest in Lessor, and Lessee shall immediately surrender possession of the Equipment to Lessor upon (a) any termination of this Agreement other than termination pursuant to Section 10.01 or (b) the occurrence of an Event of Default. It is the intent of the parties hereto that any transfer of title to Lessor pursuant to this Section shall occur automatically without the necessity of any bill of sale, certificate of title or other instrument of conveyance. Lessee shall, nevertheless, execute and deliver any such instruments as Lessor may request to evidence such transfer. Section 6.02. Security Interest. To secure the payment of all of Lessee's obligations under this Agreement, Lessee hereby grants to Lessor a security interest constituting a first lien on the Equipment and on all additions, attachments and accessions thereto, substitutions therefor and proceeds therefrom. Lessee agrees to execute such additional documents, in form satisfactory to Lessor, which Lessor deems necessary or in form satisfactory to Lessor, which Lessor deems necessary or in appropriate to establish and maintain its security interest and the security interest of any assignee of Lessor in the Equipment. 4 Section 6.03 Personal Property. The Equipment is and will remain personal property. The Equipment will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner physically affixed or attached to such real estate or any building thereon. Upon the request of Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from any party having an interest in any such real estate or building. ARTICLE VII Section 7.01. Liens, Taxes, Other Governmental Charges and utility Charges. Lessee shall keep the Equipment free of all levies, liens and encumbrances except those created by this Agreement. The parties to this Agreement contemplate that the Equipment will be used for a governmental or proprietary purpose of Lessee and that the Equipment will therefore be exempt from all property taxes. If the use, possession or acquisition of the Equipment is nevertheless determined to be subject to taxation, Lessee shall pay when due all taxes and governmental charges lawfully assessed or levied against or with respect to the Equipment. Lessee shall pay such taxes or charges as the same may become due; provided that, with respect to any such taxes or charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such installments as accrue during the Lease Term. Section 7.02. Insurance. At its own expense, Lessee shall maintain (a) casualty insurance insuring the Equipment against loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State and any other risks reasonable required by Lessor in an amount at least equal to the then applicable Purchase Price of the Equipment, (b) liability insurance that protects Lessor from liability in all events in form and amount satisfactory to Lessor, and (c) workers' compensation coverage as required by the laws of the state; provided that, with Lessor's prior written consent, Lessee may self - insure against the risks described in clauses (a) and (b). All insurance proceeds from casualty Losses shall be payable as hereinafter provided. Lessee shall furnish to Lessor certificates evidencing such coverage throughout the Lease Term. All such insurance shall be with insurers that are acceptable to Lessor, shall name Lessee and Lessor as insureds and shall contain a provision to the effect that such insurance shalt not be cancelled or modified materially without first giving written notice thereof to Lessor at least 30 days in advance of such cancellation or modification. All such casualty insurance shall contain a provision making any losses payable to Lessee and Lessor as their respective interests may appear. Section 7.03. Advances. In the event Lessee shall fail to either maintain the insurance required by this Agreement or keep the Equipment in good repair and working order, Lessor may, but shall be under no obligation to, purchase the required insurance and pay the cost of the premiums thereof and maintain and repair the Equipment and pay the cost thereof. All amounts so advanced by Lessor shall constitute additional rent for the then current Original Term or Renewal Term and Lessee covenants and agrees to pay such amounts so advanced by Lessor with interest thereon from the due date until paid at the rate of 12% per annum or the maximum amount permitted by Lew, whichever is Less. ARTICLE VIII Section 8.01. Damage. Destruction and Condemnation. If (a) the equipment or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other casualty or (b) title to, or the temporary use of, the Equipment or any part thereof shall be taken under the exercise or threat of the power of eminent domain by any governmental body or by any person, firm or corporation acting pursuant to governmental authority, Lessee and Lessor will cause the Net Proceeds of any insurance claim, condemnation award or sale under threat of condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Equipment, unless Lessee shall have exercised its option to purchase the Equipment pursuant to Section 10.01. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee. For purposes of this Article, the term "Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim, condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys' fees, incurred in the collection thereof. Section 8.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 8.01, Lessee shall either (a) complete such replacement, repair, restoration, modification or improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or (b) purchase Lessor's interest in the Equipment pursuant to Section 10.01. The amount of the Net Proceeds, if any, remaining after completing such repair, restoration, modification or improvement or after purchasing Lessor's interest in the Equipment shall be retained by Lessee. If Lessee shall make any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under Article IV. 5 ARTICLE IX Section 9.01. DISCLAIMER OF WARRANTIES. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF THE EQUIPMENT, OR WARRANTY WITH RESPECT THERETO. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE EXISTENCE, FURNISHING, FUNCTIONING OR LESSEE'S USE OF ANY ITEM, PRODUCT OR SERVICE PROVIDED FOR IN THIS AGREEMENT. Section 9.02. Vendor's Warranties. Lessor hereby irrevocably appoints Lessee its agent and attorney- in- fact during the Lease Term, so long as Lessee shall not be in default hereunder, to assert from time to time whatever claims and rights (including without limitation warranties) related to the Equipment that Lessor may have against the Vendor. Lessee's sole remedy for the breach of such warranty, indemnification, or representation shall be against the Vendor of the Equipment and not against Lessor. Any such matter shall not have any effect whatsoever on the rights and obligations of Lessor with respect to this Agreement, including the right to receive full and timely payments hereunder. Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such warranties by the Vendor of the Equipment. ARTICLE X Section 10.01. Purchase Option. Lessee shall have the option to purchase Lessor's interest in the Equipment, upon giving written notice to Lessor at least 60 days before the date of purchase, at the following times and upon the following terms: (a) on the Rental Payment Dates specified in Exhibit B, upon payment in full of the Rental Payments then due hereunder plus the then applicable Purchase Price plus 01.00 to Lessor; or (b) In the event of substantial damage to or destruction or condemnation of substantially all of the Equipment, on the day Lessee specifies as the purchase date in Lessee's notice to Lessor of its exercise of the purchase option, upon payment in full of the Rental Payments then due hereunder plus the then applicable Purchase Price to Lessor. ARTICLE XI Section 11.01. Assignment by Lessor. Lessor's right, title and interest in, to and under this Agreement and the Equipment may be assigned and reassigned in whole or in part to one or more assignees or subassignees by Lessor and, to the extent of his interest, by any Registered Owner, without the necessity of obtaining the consent of Lessee; provided that (a) any assignment, other than an assignment to or by a Registered Owner, shall not be effective until Lessee has received written notice, signed by the assignor, of the name, address and tax identification number of the assignee, and (b) any assignment to or by a Registered Owner shall not be effective until it is registered on the registration books kept by the Agent as agent for Lessee. Lessee shall retain all such notices as a register of all assignees (other than Registered Owners) and shall make all payments to the assignee or assignees designated in such register or, in the case of Registered Owners, to the Agent. Lease Participation Certificates may be executed and delivered by the Agent to Registered Owners, if any. Lessee agrees to execute all documents, including notices of assignment and chattel mortgages or financing statements that may be reasonably requested by Lessor or any assignee to protect its interests in the Equipment and in this Agreement. Lessee shall not have the right to and shalt not assert against any assignee or Registered Owner any claim, counterclaim, or other right Lessee may have against Lessor. Section 11.02. Assignment and Subleasing by Lessee. None of Lessee's right, title and interest in, to and under this Agreement and in the Equipment may be assigned or encumbered by Lessee for any reason, except that Lessee may sublease all or part of the Equipment if Lessee obtains the prior written consent of Lessor and an opinion of nationally recognized counsel in the area of tax exempt municipal obligations satisfactory to Lessor that such subleasing will not adversely affect the exclusion of the interest components of the Rental Payments from gross income for federal income tax purposes. Any such sublease of all or part of the Equipment shall be subject to this Agreement and the rights of the Lessor in, to and under this Agreement and the Equipment. ARTICLE XII Section 12.01. Events of Default Defined. Subject to the provisions of Section 3.03, any of the following events shall constitute an "Event of Default" under this Agreement: (a) Failure by Lessee to pay any Rental Payment or other payment required to be paid hereunder at the 6 time specified herein; (b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in subparagraph (a) above, for a period of 30 days after written notice specifying such failure and requesting that it be remedied is given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided that, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected; (c) Any statement, representation or warranty made by Lessee in or pursuant to this Agreement or its execution, delivery or performance shall prove to have been false, incorrect, misleading or breached in any material respect on the date when made; (d) Any provision of this Agreement shall at any time for any reason cease to be valid and binding on Lessee, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by Lessee or any governmental agency or authority if the loss of such provision would materially adversely affect the rights or security of Lessor, or Lessee shall deny that it has any further liability or obligation under this Agreement; (e) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or taking advantage of any insolvency law or any answer admitting the material allegations of a petition filed against Lessee in any bankruptcy, reorganization or insolvency proceeding; or (f) An order, judgment or decree shall be entered by any court of competent jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator of Lessee or of all or a substantial part of the assets of Lessee, in each case without its application, approval or consent, and such order, judgment or decree shall continue unstayed and in effect for any period of 30 consecutive days. Section 12.02. Remedies on Default. Whenever any Event of Default exists, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps: (a) By written notice to lessee, Lessor may declare all Rental Payments and other amounts payable by Lessee hereunder to the end of the then current Original Term or Renewal Term to be due; (b) With or without terminating this Agreement, Lessor may enter the premises where the Equipment is located and retake possession of the Equipment or require Lessee at Lessee's expense to promptly return any or all of the Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, and sell or lease the Equipment or, for the account of Lessee, sublease the Equipment, continuing to hold Lessee liable for the difference between (i) the Rental Payments and other amounts payable by lessee hereunder to the end of the then current Original Term or Renewal Term, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies under this Agreement, including without limitation all expenses of taking possession, storing, reconditioning and selling or Leasing the Equipment and all brokerage, auctioneers' and attorneys' fees); and (c) Lessor may take whatever action at law or in equity may appear necessary or desirable to enforce its rights as the owner of the Equipment. Section 12.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement now or hereafter existing at Law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice other than such notice as may be required in this Article. ARTICLE XIII Section 13.01. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, to 7 the parties hereto at the addresses immediately after the signatures to this Agreement (or at such other address as either party hereto shall designate in writing to the other for notices to such party), to any assignee at its address as it appears on the registration books maintained by Lessee or the Agent. Section 13.02. Release and indemnification. To the extent permitted by law, Lessee shall indemnify, protect, hold harmless, save and keep harmless Lessor from and against any and all liability, obligation, loss claim, tax and damage whatsoever, regardless of cause thereof, and all expenses in connection therewith (including without limitation counsel fees and expenses and any federal income tax and interest and penalties connected therewith imposed on interest received) arising out of or as the result of (a) the entering into of this Agreement, (b) the ownership of any item of Equipment, (c) the ordering, acquisition, use, operation, condition, purchase, delivery, rejection, storage, or return of any item of the Equipment, (d) or any accident in connection with the operation, use, condition, possession, storage or return of any item of the Equipment resulting in damage to property or injury to or death to any person, and /or (e) the breach of any covenant herein or any material misrepresentation contained herein. The indemnification arising under this paragraph shell continue in full force and effect notwithstanding the full payment of all obligations under this Agreement or the termination of the Lease Term for any reason. Lessee. Section 13.03. Entire Agreement. This Agreement constitutes the entire agreement between Lessor and Section 13.04. Binding Effect. This Agreement shall inure to the benefit of and shalt be binding upon Lessor and Lessee and their respective successors and assigns. Section 13.05. Severability. In the event any provision of this 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 13.06. Amendments, Changes and Modifications. This Agreement may be amended by Lessor and Lessee; provided that no amendment that affects the rights of the Registered owners shall be effective unless it shalt have been consented to by the Registered Owners of a majority, in principal amount, of the Lease Participation Certificates, if any, then outstanding. Section 13.07. Execution in Counterparts. This 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 instrument. Section 13.08. Applicable Law. This Agreement shall be governed by and construed in accordance with the taws of the State. Section 13.09. 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 or sections of this Agreement. IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their names by their duty authorized representatives as of the date written above. (LESSOR) (LESSEE) Security Capital Corporat'on City of Round Rock, Texas 12008 : th St. 221 E. _� St. Sui 32 Round .;1'+ . T ' 7 Le ex: Kansas 66 LE: kg( E Rt31f'!Ph/f TITLE: fl yQR.1 8 ATTEST: TITLE: AS.SJ 1i Jr CIT mANAG6C c l y SEc,ee i,ey EXHIBIT "8" TO EQUIPMENT LEASE PURCHASE AGREEMENT RENTAL PAYMENT SCHEDULE RENTAL RENTAL PAYMENT PAYMENT INTEREST PRINCIPAL PURCHASE DATE AMOUNT PORTION PORTION PRICE 03/03/94 $43,207.78 85,673.86 $37,533.92 8202,188.75 09/03/94 $43,207.78 $4,782.80 $38,424.98 $163,530.22 03/03/95 $43,207.78 $3,870.60 839,337.18 8124,001.87 09/03/95 843,207.78 $2,936.73 840,271.05 883,584.13 03/03/96 843,207.78 81,980.70 541,227.08 842,256.99 09/03/96 $43,207.78 $1,001.97 $42,205.81 $1.00 10 Security Capital Corporation 12008 W. 87th St, Ste 323 Lenexa, Kansas 66215 Ladies and Gentlemen: EXHIBIT C TO EQUIPMENT LEASE PURCHASE AGREEMENT ACCEPTANCE CERTIFICATE Re: Equipment Lease Purchase Agreement, dated as of September 3, 1993 (the "Agreement "), between Security Capital Corporation ( "Lessor ") and the City of Round Rock, Texas_ ( "Lessee "). In accordance with the Agreement, the undersigned Lessee hereby certifies and represents to, and agrees with, Lessor as follows: (1) All of the Equipment (as defined in the Agreement) has been delivered, installed and accepted on the date hereof. (2) Lessee has conducted such inspection and /or testing of the Equipment as it deems necessary and appropriate and hereby acknowledges that it accepts the Equipment for all purposes. (3) Lessee is currently maintaining the insurance coverage required by section 7.02 of the Agreement. (4) No event or condition that constitutes, or with notice or lapse of time, or both, would constitute an Event of Default (as defined in the Agreement) exists at the date hereof. Dated: 9- a3 93 Ci Title. mq 11 1 Atte Ie CAIMM � (TO BE PRINTED ON ATTORNEY'S LETTERHEAD) EXHIBIT D TO EQUIPMENT LEASE PURCHASE AGREEMENT OPINION OF COUNSEL As legal counsel to Lessee, I have examined (a) the foregoing Agreement between the City of Round Rock, Texas and security Capital corporation, dated as of September 3, 1993, which, among other things, provides for the sale to and purchase by the Lessee of the Equipment, (b) an executed counterpart of the ordinance or resolution of Lessee which, among other things, authorizes Lessee to execute the Agreement and (c) such other opinions, documents and matters of law as I have deemed necessary in connection with the following opinions. Based on the foregoing, I am of the following opinions: (1) Lessee is a public body corporate and politic, duly organized and existing under the laws of the State, and has a substantial amount of one or more of the following sovereign powers: (a) the power to tax, (b) the power of eminent domain, and (c) police power; (2) Lessee has the requisite power and authority to purchase the Equipment and to execute and deliver the Agreement and to perform its obligations under the Agreement; (3) The Agreement and the other documents either attached thereto or required therein have been duly authorized, approved and executed by and on behalf of Lessee, and the Agreement is a valid and binding obligation of Lessee enforceable in accordance with its terms; (4) The authorization, approval and execution of the Agreement and all other proceedings of Lessee relating to the transactions contemplated thereby have been performed in accordance with all open meeting laws, public bidding taws and all other applicable state and federal laws; and (5) There is no proceeding pending or threatened in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would adversely affect the transactions contemplated by the Agreement or the security interest of Lessor or its assigns, as the case may be, in the Equipment. All capitalized terms herein shall have the same meanings as in the foregoing Agreement. Lessor, its successors and assigns, including without limitation any Registered Owners, and any counsel rendering an opinion on the tax - exempt status of the interest components of Rental Payments are entitled to rely on this opinion. Printed Name: S7EPN /n) L. SHEETS Address: 309 5. rnA /N 57 RoUM X117 P ROcK,, 7317 L/ T No: (,,5 d 55-s177 12 EXHIBIT E TO EQUIPMENT LEASE PURCHASE AGREEMENT CERTIFICATE OF CLERK OR SECRETARY OF LESSEE 1, the undersigned, do hereby certify (i) that the officer of Lessee who executed the foregoing Agreement of behalf of Lessee and whose genuine signature appears thereon, is the duly qualified and acting officer of Lessee as stated beneath his or her signature and has been authorized to xecute the foregoing Agreement on behalf of Lessee, and (ii) that the budget year of Lessee iLsfrom /00 to 30 Syr Dated: 9 a 3-9 3 / 13 By: TitLe: 455Is7aAJr C!T /4/4/\1466k/ CIT\ SEc,eE - Form 8038 -G (pen. May 1993) Demeanor of me Treasury Irani eeven,e S-vice •. Reporting Authority 1 Issuer's name City of Round Rock, Texas Information Return for Tax - Exempt Governmental Obligations • Under Internal Revenue Code section 149(1) ► See separate Instructions. (Use Form 8038 -GC If the issue price is under 5100,000.) 3 Number and street (or P.O. box if mail is not delivered to street address) Room/suite 221 E. Main St. 5 Cxy, town. state, and ZIP code Round Rock, Texas 78664 7 Name Of Issue Type of Issue (check applicable box(es) and enter the issue price) 9 ❑ Education (attach schedule -see instructions) 10 ❑ Health and hospital (attach schedule -see instructions) 11 ❑ Transportation 12 ❑ Public safety 13 ❑ Environment (including sewage bonds) 14 ❑ Housing 15 ❑ Utilities 16 ❑ Other. Describe (see Instructions) • 17 If obligations are tax or other revenue anticipation bonds, check box • ❑ 18 If obligations are in the form of a lease or Installment sale, check box • ❑ Part 11I 19 Final maturity, 20 Entire issue . Part IV Part V Part VI Please Sign Here Description of Obligations Matu date Interest rate Issue once cat Stated rndempnon note at maturity Uses of Original Proceeds of Bond Issue (including underwriters' discount) 21 Proceeds used for accrued interest 22 Issue price of entire issue (enter amount from line 20, column (c)) 23 Proceeds used for bond issuance costs (including underwriters' discount) 23 24 Proceeds used for credit enhancement 24 25 Proceeds allocated to reasonably required reserve or replacement fund , 25 28 Proceeds used to refund prior issues 28 27 Total (add lines 23 through 26) 28 Nonrefundinq proceeds of the issue (subtract line 27 from line 22 and enter amount here). Description of Refunded Bonds (complete this part only for refunding bonds) 29 Enter the remaining weighted average maturity of the bonds to be refunded • 30 Enter the last date on which the refunded bonds will be called • 31 Enter the date(s) the refunded bonds were issued • Miscellaneous Signature of officer O a t For Paperwork Reduction Act Notice, see page 1 of the Instructions. 0M8 N0. 1545 - 0720 If Amended Return, check here • 2 Issuer's employer identification number 4 Report number G19 - 8 Date of issue 8 CUSIP Number issue once Wegnted yarn Net interest averse maturity cost years 21 27 28 years 32 Enter the amount of the state volume cap allocated to the issue • 33 Enter the amount of the bonds designated by the issuer under section 265(b)(3K8Xi)(III) (small issuer exception) • 34 Pooled financings: a Enter the amount of the proceeds of this Issue that are to be used to make loans to other governmental units ► b If this issue is a loan made from the proceeds of another tax- exempt issue. check box • ❑ and enter the name of the issuer • and the date of the issue • 35 If the issuer has elected to pay a penalty in lieu of rebate. check box • ❑ Under penalties of perjury, 1 declare treat I have examined Res return and accompanying scnedules and statements, are 10 MO best or my move dge and coast they are true. correct, and complete. rhos 64 ' Type p tame an0 rile Cat. No. 837735 Form 8038 -G (Rev. 5-93) FIRST AMENDMENT TO EOUIPMENT LEASE PURCHASE AGREEMENT This First Amendment, which shall be effective as of the 3rd day of September, 1993, is made a part of the Equipment Lease Purchase Agreement by and between Security Capital Corporation and the City of Round Rock, Texas. I. Section 3.03 of the Equipment Lease Purchase Agreement shall be amended to read as follows: Section 10.01 of the Equipment Lease Purchase Agreement shall be amended to read as follows: KS/ROUNDROCK 1STAMEND Section 3.03. Tax Levy. A special Interest and Sinking Fund (the "Interest and Sinking Fund ") is hereby created solely for the benefit of the lease, and the Interest and Sinking fund shall be established and maintained by the City at an Interest and Sinking Fund shall be kept separate and apart from all other funds and accounts of the City, and shall be used only for paying the interest on and principal of the lease. All ad valorem taxes levied and collected for an on account of the lease shall be deposited, as collected, to the credit of the Interest and Sinking Fund. During each year while the lease of interest thereon are outstanding and unpaid, the governing body of the City shall compute and ascertain a rate and amount of ad valorem tax which will be sufficient to raise and produce the money required to pay the interest on the lease as such interest comes due, and to provide and maintain a sinking fund adequate to pay the principal of the lease as such principal comes due (but never less than 2% each year); and said tax shall be based on the latest approved tax rolls of the Issuer, with full allowance being made for tax delinquencies and the cost of tax collection. II. Section 10.01. Purchase Option. Upon payment in full of the Rental Payments due hereunder plus the Purchase Price of $1.00, the City will assume ownership of the Equipment. IN WITNESS WHEREOF, Lessor and Lessee have caused this First Amendment to be executed in their names by their duly authorized representatives. LESSOR: LESSEE: Security Capital Corporation City of Round Rock, Texas 12008 W. 87th St. 221 E. Main St. Suite Round •• k Texas 78664 Len- ansas 6 • 5 B '� BY: P f N =me �,r - f� niTlr ,,� Ti - e: 1 rk.rs Date: ('(26/G 3 BY: 2. CHARLES CULVEP R, Mayor Attest: NE LAND, City Secretary September 20, 1993 City of Round Rock, Texas 221 East Main St. Round Rock, Texas 78664 Attention: Mr. Howard Baker Re: Equipment Lease Purchase Agreement, dated as of September 3, 1993 (the "Agreement "), between Security Capital Corporation ( "Lessor ") and the City of Round Rock, Texas ( "Lessee") Ladies and Gentlemen: Pleased be advised that Security Capital Corporation has assigned all its right, title, and interest in, to and under the above referenced Lease Purchase Agreement (the "Agreement "), the Equipment Leased thereunder and the right to receive Rental Payments thereunder to the following assignee: ACKN LEDGED AND ACCEPTED: City , Texas Koch Financial Corporation P.O. Box 263 Kansas City, MO 64193 Tax Identification No. All Rental Payments and payment of the Purchase Price due under the Agreement should be made to the Assignee at the above address. Please acknowledge your receipt and acceptance of the assignment, at your earliest convenience, by signing below. - - By a..a -•- • T Title lii C rod OT.. J k NOTICE OF ASSIGNMENT Since se a•ital.Cor e: GF �[2tO10fft� and ATTEST: KS /RESOLUTION RS09093C LAND, City Secretary RESOLUTION NO. R- 93- 07-07- Q� WHEREAS, the City of Round Rock has duly advertised for bids to lease /purchase various equipment for use by the City, and WHEREAS, Security Capital Corporation has submitted the lowest and best bid to lease /purchase said equipment to the City, WHEREAS, the City Council wishes to accept the bid of Security Capital Corporation, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a contract with Security Capital Corporation to lease /purchase various equipment, a copy of said contract being attached hereto and incorporated herein for all purposes. RESOLVED this 9th day of September 1993. dr/ CHARLES CULPE R, Mayor City of Round Rock, Texas COMPANY NAME SECURITY CAPITAL G.E. CAPITAL ASSOCIATES COMMERCIAL BELL ATLANTIC BANC ONE LEASING INTEREST RATE 4.748% 4.88% 4.88% 4.95% 4.99% TOTAL COST ON PRINCIPAL OF $289,500 $314,025 $314,720 $314,720 $315,089 • $315,300 SEMI - ANNUAL PAYMENTS FOR 3 YEAR PERIOD $52,337 $52,453 $52,453 $52,515 $52,550 CITY OF ROUND ROCK ANALYSIS OF BIDS - EQUIPMENT LEASING LEASE93 31 -Aug -93 03:55 PM SUMMARY OF BIDS - 20 BIDS WERE MAILED. 10 SUBMITTED BIDS 2 DECLINED, BUT ASKED FOR FUTURE CONSIDERATION 1 WAS RETURNED, NOT DELIVERABLE 7 NON - RESPONSIVE FIRST AMENDMENT TO EQUIPMENT LEASE PURCHASE AGREEMENT This First Amendment, which shall be effective as of the 3rd day of September, 1992, is made a part of the Equipment Lease Purchase Agreement by and between Security Capital Corporation and the City of Round Rock, Texas. I. Section 3.03 of the Equipment Lease Purchase Agreement shall be amended to read as follows: Section 10.01 of the Equipment Lease Purchase Agreement shall be amended to read as follows: KSIROUNDROCK 1STAMEND Section 3.03. Tax Levy. A special Interest and Sinking Fund (the "Interest and Sinking Fund ") is hereby created solely for the benefit of the lease, and the Interest and Sinking fund shall be established and maintained by the City at an Interest. and Sinking Fund shall be kept separate and apart from all other funds and accounts of the City, and shall be used only for paying the interest on and principal of the lease. All ad valorem taxes levied and collected for an on account of the lease shall be deposited, as collected, to the credit of the Interest and Sinking Fund. During each year while the lease of interest thereon are outstanding and unpaid, the governing body of the City shall compute and ascertain a rate and amount of ad valorem tax which will be sufficient to raise and produce the money required to pay the interest on the lease as such interest comes due, and to provide and maintain a sinking fund adequate to pay the principal of the lease as such principal comes due (but never less than 2% each year); and said tax shall be based on the latest approved tax rolls of the Issuer, with full allowance being made for tax delinquencies and the cost of tax collection. II. Section 10.01. Purchase Option. Upon payment in full of the Rental Payments due hereunder plus the Purchase Price of $1.00, the City will assume ownership of the Equipment. IN WITNESS WHEREOF, Lessor and Lessee have caused this First Amendment to be executed in their names by their duly authorized representatives. LESSOR: LESSEE: Security Capital Corporation 12008 W. 87th St. Suite 323 Lenexa, Kansas 66215 BY: Printed Name: Title: Date: BY: 2. City of Round Rock, Texas 221 E. Main St. Round R. k., Texas 78664 BY: Attest: HARLES C 'E• R, Mayor NE LAND, City Secretary DATE: September 7, 1993 SUBJECT: City Council Meeting, September 9, 1993 ITEM: 9.C. Consider a resolution authorizing the Mayor to enter into a lease /purchase program for City equipment. STAFF RESOURCE PERSON: David Kautz STAFF RECOMMENDATION: The current operating budget (fiscal year 1992 -93) provides for a lease /purchase program whereby certain durable operating equipment is acquired and financed through a three —year tax exempt lease program. Interest rate quotations from qualified leasing companies are attached. The principal amount of the lease is budgeted at $289,000. This amount could be reduced once final computations are performed, thereby reducing the final cost. Staff recommends accepting the bid of — Security Capital 4.748 % APR