733349
RESOLUTION NO. 7,333
RESOLUTION AUTHORIZING THE EXECUTION OF A MUNICIPAL
LEASE BETWEEN THE CITY OF LITTLE ROCK AND MANAGEMENT
IMPROVEMENT CORPORATION OF AMERICA (MICA) /STEPHENS
INC., AND AUTHORIZING THE EXECUTION OF AN ASSOCIATED
SUBLEASE AGREEMENT BETWEEN THE CITY OF LITTLE ROCK
AND THE LITTLE ROCK AMBULANCE AUTHORITY D /B /A
METROPOLITAN EMERGENCY MEDICAL SERVICES (MEMS); AND
FOR OTHER PURPOSES.
WHEREAS, the City of Little Rock, Arkansas (the "City "),
pursuant to Act No. 142 of the Acts of the General Assembly of
the State of Arkansas for the year 1975 (the "Act ") is
authorized to establish public facilities boards for the
purposes set forth in the Act, which includes providing
Emergency Medical Services and other Medical Services, and
assisting in the financing of Emergency Medical Health Care
Facilities and other facilities related thereto within or near
the City; and
WHEREAS, the City of Little Rock, Arkansas, pursuant to
the provisions of Act No. 23 of the Acts of the General
Assembly of the State of Arkansas for the year 1981 ( "the
Municipal Ambulance Licensing Act ") was authorized and
empowered to own, operate, permit, control, manage, franchise,
license and /or regulate emergency medical services, emergency
medical technicians, emergency and non - emergency ambulances,
ambulance companies, their respective properties, facilities,
equipment, personnel and /or any and all aspects attendant to
providing emergency medical services and ambulance operations
as deemed proper to provide for the health, safety and welfare
of its citizens; and
WHEREAS, the City has created and established the City of
Little Rock, Arkansas, Emergency Medical Health Care Facilities
Board, commonly known as the Little Rock Ambulance Authority
d /b /a Metropolitan Emergency Medical Services by virtue of
Ordinance No. 14,062 which was passed June 16, 1981; and
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WHEREAS, the City established a regulated ambulance
service system consistent with the Municipal Ambulance
Licensing Act by virtue of Ordinance No. 14,511, passed
September 20, 1983, which adopted the Public Utility Model for
use in the City for the most cost - effective means available for
achieving stable and reliable advanced life support ambulance
service capability and insuring the continued and uninterrupted
availability of such services in the City; and
WHEREAS, the Little Rock Ambulance Authority (the
"Authority ") and the City have entered into a contract for
implementation of the public utility model advanced life
support pre - hospital care system which provides, among other
things, that the Authority shall seek long -term financing up to
$2,016,000 for purposes of acquiring fully equipped ambulance
units, communications equipment, a medical and central
communications center, initial expendable supplies, and an
estimated $400,000 in working capital; and
WHEREAS, the City approved, adopted, and agreed to
implement the municipal lease arrangement described in the
Authority's report submitted on May 30, 1984 which was attached
and made a part of Ordinance No. 14,681 adopted June 5, 1984
calling for implementation of the municipal lease arrangement;
and
WHEREAS, the City, the Authority and MICA have developed a
Master Municipal Lease for purposes of acquiring the equipment
needed by the Little Rock Ambulance Authority which calls for a
total principal financial commitment not to exceed $2,016,000
to extend for a contract period of ten years; and
WHEREAS, the Board of Directors of the City of Little Rock
finds that the municipal lease agreement is necessary in order
to accomplish the objectives of the public utility model for
advanced life support pre - hospital care system previously
mentioned;
NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY OF
LITTLE ROCK BOARD OF DIRECTORS:
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1. The Mayor and City Clerk of the City of Little Rock
are hereby authorized to enter into a Master Municipal Lease
Agreement with MICA which is acceptable to the Little Rock
Ambulance Authority in substantially the form as attached
hereto, identified as Exhibit A.
2. The Mayor -and City Clerk of the City of Little Rock
are hereby authorized to enter into a sublease with the Little
Rock Ambulance Authority embodying the terms and conditions of
the Master Municipal Lease provisions relating to Ambulance
Authority equipment and other conditions and agreements
existing between the City and the Authority.
ADOPTED: te, bruary 19, 1985
APPROVED:
Mamas A./� JrrnATTEST: ,.0 /v
0797E
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MASTER LEASE AGREEMENT WITH OPTION TO PURCHASE
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This Agreement, made this day of 1989,
between al
corporation, on its behalf and on behalf of a group of
investors (referred to collectively as "Lessor ") and CITY OF
LITTLE ROCK, ARKANSAS ( "Lessee "), a duly constituted political
sut, division of the State of Arkansas;
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WITNESSETH :
Will; REAS, in connection with the operation of the Lessee's
v.trious public functions, including its Emergency Medical
Sor.vice, Lessee has determined that a need exists for th,:
personal property described in Schedule(s) attached hereto (the
"E:quipwenL "); and
WHEREAS, Lessee is authorized by the laws of the State of
;;tkansas to enter into this Agreement; and i
WllERE:AS, Lessee desires to lease the Equipment from Lessor
lor, the period set forth herein, thereafter acquiring title to
the Equipment, pursuant to the terms and conditions and for the
purposes described herein; and
WHEREAS, Lessee has requested Lessor to provide funding
the lease and acquisition of the Equipment by Lessee;
WHEREAS, Lessee intends to sublet its interest in certain
-,t • the Equipment included under this Lease, to Lessee's
[.mbulaiice Authority.
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NOW, THEREFORE, for and in consideration ofI the premises
contained herein, the parties agree as follows:
i ARTICLE I
DEFINITIONS
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Section 101. Definitions.
For purposes of this Agreement and all related documents,
thei terms defined herein shall have the following meanings
(unl(-ss the context clearly- requires otherwise):
"Acquisition Fund" - The Fund established with the Trustee
pursuant to the provisions of Article II hereof.
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"Agreement - This Master Lease Agreement with Option; to l
Purchase and any amendments or, supplements hereto,,specifically
i including Schedule(s) attached hereto.;'
"Certificate(s) of Acceptance" - The certificate whic'
:,us :;ee shall execute and deliver Lo Lessor, acknowledging that
Lhe Equipment has been delivered to Lessee at the location
dascribed in the; Schedule(s), has been fully inspected by an
authorized representative of Lessee and 1 determined to 'be
- ;,i.isfactory in all respects and in proper working order, and
nas been' fully and finally accepted by Lessee under this'
Agreement. In the event of the addition of any Equipment under
t.h., terms of this Agreement by the execution of any additional
, :Chedule(s), additional Certificates of Acceptance must be'
arecuted and delivered on behalf of Lessee in thelsame manner.
"Equipment" or "Unit" or "Units" The personal property'
r,#::.;cribed in the Schedule(s) and any supplements] or amendments
Lheteto and specifically covered tinder this Lease. Included
or. Units acquired subsequent to, as well as on or prior to
,;r,cunencemunt of the Term, as set forth and distinguished on the
:;cin >dule(s) attached hereto, so long as they are included under
:_iris; Lease, by agreement of Lessee and Lessor.
"Emergency Medical System" or "EMS" - The operations and
- gnipment for providing ambulance and emergency medicall,.
i.:eatment by the Ambulance Authority of the City of Little,
tone s•:, Arkansas and located in Little Rock, Arkansas.
"L.essce`" - City of Little Rock, Arkansasf a political
:;ubllivisiou of the State of Arkansas. l
ou its own behalf and on behalf of a group of investors or any .i
:;uiviving, resulting or transferee corporation of Lessor, or
,Inysucce:ssors or assigns of Lessor.
"Little Rock Ambulance Authority" or "Authority" - The
dilly constituted authority created by ordinance of the Lessee
for purpose of operating and overseeing the Emergency Medical
>ystom. The Lessee shall sublease certain of the Equipment
hereunder to the Authority and all obligations of Lesseel
lereunder for such subleased Equipment, except those ,.
obligations to appropriate revenues will be assumed and carried
out by the Authority. Such sublease, however, will not relieve r
lessee of its obligations hereunder. I•
"Rent" - The basic payments payable by Lessee pursuant to
Lhe provisions hereof during the Term of this 'Lease. Rent
shall be paid by Lessee in consideration of the right to use '.
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the Equipment during the 'Perm and in consideration of the
acquisition of the Equipment upon termination; hereof. Rent
::hall be payable in the amounts and at the times set forth in
che, Exhibit A, subject to the provisions hereof relating to
uuuappropriation of funds.
"Replacement Termination Value" - As used in Section 404,
f:cplacement 'Termination Value shall mean the purchase price or
bride -in allowance received by Lessee, or EMS, 'for bona fide
::r,ie or trade -in of any Replaced Unit.
"Schedule(s)" - The Schedules attached hereto (and made a
I,;,rt hereof) as of the date hereof of equipment and any
a(iditional or supplemental Schedules that might be subsequently
.,t_L. ached.
"Surety" - _ or any other
:utity issuing a bond or other undertaking insuring t-he
t)�,cformancc of Lessee hereunder.
"'l'„rmination Value" - The schedule of amounts agreeable to
and Lessee which Lessee may pay to Lessor to purchase
p,,rticular items of Equipment as provided in Section 601 hereof.
"Truoll:e" - Worthen Bank & Trust Company, N.A., Little
Pock, Arkansas.
ARTICLE II
DEMISING CLAUSE, DURATION OF LEASE TERM;
RENTAL PROVISIONS; ACQUISITION OF EQUIPMENT
Section 201. Lease of Equipment.
Lessor,
for and in consideration
of the covenants
and
ayreements:
herein contained, on the part
of Lessee to be
kept
;,nd perfermed,
agrees to and does hereby
lease to Lessee,
and
Lessee agrees
to and does hereby lease,
take and accept
from
Lc, ,s0r the
Equipment, subject to the terms, conditions
and
obligations
set forth herein, for the 'Perm
hereof.
Section 202. Term.
'File Initial 'Perm of this Lease shall commence on the date
of this Lease and shall end on December 31, 1985, the end of
Lessee's current fiscal appropriations period. Each renewal
P4e1-11k shall. commence immediately upon the expiration of the
Initial 'Perm or the preceding renewal Term, as applicable, and
each shall expire at the end of Lessee's then - current fiscal
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appropriations period. In all events, this' Lease sha115 rJ
j tenuinate on _ , 19 Each renewal shall be at
the sole option of Lessee, notwithstanding any 'sublease. Any
;ucti renewal shall be automatic upon appropriation of funds as
provided in Section 204(a)(ii), except as provided in Article
V1 hereof, and shall occur without requirement of notice to or
from Lessor or Lessee. Lessee may change the end of its fiscal
appropriations period, and if that is done, the Term of this
Lease shall change accordingly.
action 203. Rent.
Lessee agrees to pay to Lessor, as Rent for the use of the
I ?yuipment during the Term, the sums designated as Rent in the
F.whibit A.
Section 204. Payment of Rent.
(rc) Lessee agrees to pay to Lessor or its assignee the
1:•nt specified in Exhibit A. The Rent will be payable without
u�,t.ice or demand at the principal office of the Trustee. Rent
payments will commence on the first day of the.next calendar
u:unth following execution of this Lease and continue thereafter
un the first. day of each succeeding month during the Term or
"fly renewal thereof. Rent payments shall be funded as follows:
(i) The Little Rock Ambulance
Authority, or its
successors or assigns, shall
pay, from all funds
available to it, on behalf
of Lessee, the rent
payments reserved by Lessee
in the sublease of
Equipment from Lessee to
the Little Rock
Ambulance Authority; and
(ii) Lessee shall pay from
valid and proper
appropriations from its
general operating
revenues, during any Term
or renewal thereof,
such amounts in excess of all the rental
payments from the Little
Rock Ambulance
Authority as are required to make the Rent
payments as they become due.
(b) 'PHIS CONTRACT IS NOT A DEBT OR A PLEDGE OF THE FAITH
AND CREDIT OF LESSEE WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY LIMITATION. 'PHIS
CONTRACT IS PAYABLE SOLELY FROM REVENUES OF LESSEE AS
SET FORTH HEREIN. LESSOR SHALL HAVE NO RIGHT TO
COMPEL THE EXERCISE OF ANY TAXING POWER OF LESSEE TO
MAKE PAYMENTS HEREUNDER, AND NO TAX REVENUE OR OTHER
FUNDS OF LESSEE ARE PLEDGED TO THE MAKING OF PAYMENTS
HEREUNDER EXCEPT REVENUES FROM THE SUBLEASE TO THE
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/ EMS. LESSEE HAS AGREED TO MAKE CERTAIN PAYMENTS FROM 5E
CURRENT APPROPRIATIONS IN ADDITION TO REVENUES FROM
THE EMS AS NECESSARY TO MAKE RENT PAYMENT'S, BUT HAS
NOT PLEDGED ANY OF ITS GENERAL REVENUES.
Section 205. Other Payments.
(a) Lessee shall pay to Lessor all other amounts,
liabilities and obligations that Lessee assumes or agrees to
pay to Lessor or any other party hereunder. If Lessee shall
fail to pay or discharge any obligation due other than the
payment of rent specified in Section 209, then Lessor shall
h:,ve the right to pay or discharge such obligation, and shall
ti,,ve all rights, powers and remedies provided herein or by law,
but failure of Lessor to pay or discharge any such obligation
: ;hall not be treated as a failure to pay Rent or as an Event of
Default under Section 1601. Lessee hereby agrees to pay and
perform all of its obligations under this Agreement at its sole
, -ost and expense and to pay all such sums at such times as they
!wjy he duo to any party, without notice or demand.
(b) Upon the occurrence of an Event of Default pursuant
t,; Article XVI hereof, and only in such event, Lessor shall be
euLitled to take and receive all sums held on deposit by the
Lessee and its Authority, or the successor thereof, in an
account with the Trustee entitled Replacement Equipment Fund
(the "Replacement Fund "). The City or its Authority shall
d,.-posit in such Replacement Fund not less than $__ _ per
year during the 'Perm hereof. So long as no default has
„ecun-ed hereunder, City or its Authority shall be permitted to
use :Lich funds to purchase additional equipment for the EMS or
to replace Equipment subject to this Lease. Lessee
specifically pledges to Lessor as security for any payments due
iu reunder the Replacement Fund, but such pledge shall not be
poimuuted and shall not become effective until an Event of
Dul;;ult shall have occurred hereunder.
(c) Les:;ee and the Little Rock Ambulance Authority hereby
ph-.d(Ae to Lessor, as additional security for the obligations of
LOS!:ec Undertaken in this Agreement, a lien on all revenues and
accounts receivable of the Authority now owned or hereafter
acquired, subject only to a lien on such accounts receivable in
f,vor of First Coimuercial Bank of Little Rock, N.A., as
:security fur a debt of the Authority in an amount not to exceed
$____ Lessee and Authority will execute all such
d,)(-wnents as are .reasonably necessary to perfect such security
interest in favor of Lessor.
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Section 206.
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Lessee agrees that its obligation to pay any amount as
Rent or otherwise under this Agreement and to perform its other
obligations hereunder shall be separate and independent
covenants, agreements and obligations. Lessee's obligations to
pay such amounts shall be absolute and unconditional and shall
at all times continue unaffected unless the requirement
therefor shall have been modified or terminated pursuant to an
express provision of this Agreement. Lessee agrees that its
, bligations hereunder shall not be subject to any abatement,
reduction, setoff, defense, counterclaim, deduction or
t.:coupmeut of any and all types whatsoever, in law or equity,
for any reason whatsoever (hereinafter referred to as
"Abatements.. including, without limitation, any Abatements
due to any future or present claims arising under this
Agr:�unent or otherwise against Lessor, or any assignee of
I.,,::sor, or, against the manufacturer or seller of the Equipment
.;r any unit thereof, or against any other person or entity.
xcepC as otherwise expressly provided herein, this Agreement
:Akali not terminate, nor shall the obligation of Lessee be
affected, nor any Abatement thereof occur, by any reason of any
damage to or defect in the Equipment, or any Unit or any
pc,rtion thereof, or any loss or destruction of the same from
any cause, any taking thereof by exercise of any governmental
right, requisition or otherwise; any prohibition, limitation,
fi:striction or prevention of Lessee's use thereof or any loss
„t use_ i;r enjoyment thereof by any person (whether by paramount
i.itle or otherwise); any default or other defect in the
I). rJ otniancit of Lessor under this Agreement or under any other
,yreement whatsoever.
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N Payments and Nonterminility.
:;:ct_ ion 207. Acquisition of Equipment.
(a) on the date of commencement of the Term hereof,
t.•::sor shall deliver to Lessee, by deposit in a trust account
in the nacre of Lessee, established with the Trustee, designated
"Little Rock, Arkansas - Leased Equipment Acquisition Fund"
(the "Ac(Iuisition Fund "), the sum of $2,013,000, to be applied
t:u the acquisition of Units of Equipment in addition to the
Units in the possession of Lessee on such date.
(b) Moneys in the Acquisition Fund shall be expended for
the acquisition, construction and installation of Units of
ltguipment by and upon requisitions filed with the Trustee and
with Lessor by Lessee, each of which shall contain:
(1) The name of the person, firm or corporation to
whom payment is to be made (which may be Lessee);
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investments sADI be credited to the Oquisition Fund and any
loss shall be charged to the Acquisition Fund. At such time as
all Equipment to be purchased from the Acquisition Fund has
received and accepted by Lessee, Lessee shall execute and
tic: liver to Lessor and Trustee a final Certificate of Acceptance
upon delivery of that final Certificate of Acceptance, 'trustee
shall comply with the provisions of Section 3.04 of the Trust
Indenture.
ARTICLE III
TITLE AND PURCHASE OF EQUIPMENT
,:ctioil 301. Title.
Lessor shall retain title to the Equipment until Lessee
!:all have made all the payments required hereunder and shall
h:jv,, kept. and performed all its agreements contained herein,
notwithstanding the possession and use of the Equipment by
a:: herein provided. Any anti all additions to the
i-;uipment ruin any and all replacements of the Equipment and all
!!rats thereof shall constitute accessions to the Equipment and
::hall be subject to all the terms and conditions of this
A,,recment, except as otherwise provided in Article V hereof.
Gnr -t ion 302. Passage of Title.
E::ct:pt. as otherwise specifically provided herein, when
ku:;sor i:hali have received from Lessee all payments of Rent,
ot-h,ar ;mtount:s required to be paid by Lessee hereunder, and
.11t of Ltaaae's obligations herein contained shall have been
performed, absolute right, title and interest in and to the
I:(;uilrment shall pass to and vest in Lessee free of all liens
.rid encuir�hrauces without any further payment by Lessee, and
this Agreement shall thereupon terminate. It is the express
intent of Lessor and Lessee that the purpose of this Agreement
ll be the lease and purchase of the Equipment by Lessee, and
:,h�ni the foregoing conditions have been satisfied, the closing
„t such purchase shall occur at the offices of Lessee, at which
rive lessor shall deliver to Lessee a bill of sale transferring
i:itle to the Equipment (or the applicable Units thereof) to
Lessee free from any lien or encumbrance created by or rising
through Lessor, and such other documents or instruments as
Le!;see stay reasonably request, but without other warranties,
anrd shall deliver all warranties or guaranties of the
manufacturer or manufacturers of the Equipment (or applicable
Unit -.s thereof) to Lessee. In the event that this Agreement
::hnll be amended to include additional Equipment pursuant to
t-he provisions of Article IV hereof, title to such Equipment
. •... .. ..._ 4^SMY^l4'n L:;. n48_: S�LTp¢ ^_QIIfL _�v +eevnva .o.� ..�..��,.�.�.�.
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ball be transferred to Lessee pursuant to this Section at the
nd of the Term.
ARTICLE IV
REPLACEMENT OF EQUIPMENT
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Section 901. Replacement of Equipment:
So long as no default hereunder shall have occurred and,be
continuing, Lessee shall have the right to replace Units of
vqu ipment then covered by the terms of this Agreement, but only
in aCCOrdnnce with the express provisions hereof. If Lessee
shall desire to acquire any such new Units ( "New Units "), it
:;hall give written notice thereof to Lessor, describing the
proposed New Units, the proposed Units to be removed, and the
,,iicclive date of such replacement (the, "Effecti've Date "), and
such notice must be received by Lessor not less; than 90 days
p for to such Effective Date. Notwithstanding any other,
provision hereof, Lessor and Lessee agree that Lessee shall be
c:ntitla:il, from time to time during the term of this Agreement,
tol acquire and install such New Units (at Lessee's sole'
pease), and as may be desired by Lessee and approved byi
fi -,ssor pursuant to the provisions hereof, provided, however,i
that the acquisition and retention of any such New Units will
n„+. adversely affect the operating capabilities of the
F(:uipmenl.
.rion 902. Requi
rements for New Units.
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Lessee agrees that any New Units shall:
(a) have a fair market value which, in the reasonable
opinion of Lessor, is not less than the fair marketl'
value of the Units to be removed;
(b) be free and clear of all liens except such as Lessor
may consent to in writing;
(c) have been manufactured by the manufacturers of the,'
existing Units, or by any other manufacturer of;
comparable and compatible equipment and approved by
Lessor in writing; and
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(d) be in good operating condition, repair and appearance:'
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Section 403. Consent of Lessor and Surety. P0
At least 30 days prior to the proposed Effective Date„
I,o:;see must- receive the written consent of Lessor and the .
Surety t:o the proposed New Units as required herein. If such
i wi itten consent shall have been received, on the lEffective Date
,Illy New Units shall thereupon be deemed to be subject to the
terms of this Agreement, and shall be deemed, "Equipment" fort
the purposes of this Agreement and shall be covered by all the'
provisions hereof. Lessee shall cause to bel delivered to
appropriate bills of sale and such other documents or,
instruments conveying title to Lessor as Lessor in it-
reasonable judgment may require as to qny such New Units.
So('tion 404. Termination as to Units.
Notwithstanding any contrary provisions of this Lease,)
duiiuq the initial Term or any renewal. Term, Lessee shall have)
Iht• authority to purchase equipment- and personal property,
r >parate and apart from this Lease and such items of property
:,hall not he subject to the terms hereof. In addition, as to
any Unit covered under this Lease, such Unit can be sold or
ri<insferred by Lessee in a bona fide sale without the consent)
;iI (Lessor, and this Lease terminated as to each such Unit upon
payment Lo Lessor by Lessee of the Replacement Termination
v•,lue for any such Unit. I i
ARTICLE V
COVENANTS, REPRESENTATIONS AND INDEMNITY PY LESSEE
:uc.'tion 501. Authorit✓ and Status.
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Lessee represents, covenants and warrants tthat it is a
duly constituted political subdivision of the State of Arkansas'
and is authorized by the Constitution and laws of the' State of
Arkansas' to enter into the transaction contemplated by this
Agreement and to carry out its obligations hereunder. The
Little Rock Ambulance Authority is a duly constituted and
validly created agency of the Lessee and is authorized by the!
laws of the State of Arkansas and the ordinances Hof the Lessee
to carry out the activities contemplated of it !in this Lease
and any sublease. Lessee has been duly authorized to execute.;
and deliver this Agreement and agrees that it will do or cause
to be done all things as may be required in the joint
reasonable judgments of Lessor and Lessee necessary to preserve
aid, keep this Agreement in full force and effect. Lessee)
further represents, covenants and warrants that) all required
procedures for execution and delivery of this Agreement have
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been met, a t that Lessee has complied with jall applicable
bidding, negotiation and approval requirements where necessary, .
and by due notification has', presented, this Agreement for
[,hproval and adoption as a valid, binding and enforceable
obligation on its part. I
Section 502. Indemnities of Lessee.
Lessee agrees to indemnify, protect 'and 'hold harmless._
lessor from and against ._all losses, damages, injuries,
liabilities, claims, causes of action and demands whatsoever,
reclardless of the cost thereof, and expenses Jin connection
therewith, including counsel fees, arising out of the retention
by Lessor of title to the Equipment, or out of the Lessee's use
avid operation thereof during the period whenititle thereto
remains in Lessor, any violation of this Agreement by Lessee,
or any violation by Lessee of any legal requirements or any
:,clreements affecting the Equipment, or any Unit thereof.
;c:ction 503. Risk of Loss.
Lesser agrees that Lessee will bear the l,risk of loss
.applicable to the Equipment or any Unit thereof and shall riot
ht- rc:lecsed from its obligations hereunder in the event of any
damage to or the destruction or loss of one orImore Units or
,,[I, of the Equipment. �
:;,,Ctiou 50,1. Disclaimer of Warranties.
Lessee acknowledges that the Equipment has
been selected
iu ',u:cordance with Lessee's specifications and from contractors
,,011 vendors selected by Lessee, that Lessor is not , a
m:mufacturer of or a dealer in such Equipment, and that
accordingly Lessor MAKES NO WARRANTY OR REPRESENTATION, EITHER
EXPRESS OR IMPLIED, AS TO THE DESIGN, OPERATION OR CONDITION
OF, OR AS TO THE QUALITY OF THE MATERIAL, JEQUjPmENT OR
WORKMANSHIP IN THE EQUIPMENT, AND LESSOR MAKES NO WARRANTY OF
MERCHANTABILITY OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR
PURPOSE OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER; IT
BEING AGREED DY LESSEE THAT ALL SUCH RISKS, AS BETWEEN LESSOR
AND: LESSEE, ARE TO BE BORNE BY LESSEE, AND THE BENEFITS OF ANY
ANO ALL IMPLIED OR STATUTORY WARRANTIES OF LESSOR ARE HEREBY
WAIVED BY LESSEE. LESSOR SHALL NOT BE LIABLE FORiINCIDENTAL OR
CONSEQUENTIAL DAMAGES.
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Section 505. Manufacturer's Warranties.
Lessor hereby irrevocably appoints and constIitutes Lessee
it:, agent and attorney -in -fact during the 'Perm of this Lease,
f:u lone as Lessee shall not be in default- hereunder, to assert
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from time totime, in name of, and for the, account of :Lessor,'
but for the benefit of Lessee, whatever claims, and,;rights
including warranties of Equipment which' Lessor meyjhave against'
thi! contractor, .manufacturer or the 'vendor thereof. :Lessee
agrees that it shall not assert any claim of any nature
whatsoever against Lessor based on , any of I'the' foregoing ,
matters. Lessee's sole remedy for the breach of any such
wairanty, indemnification or representation shall be against,,'
the contractor, manufacturer or vendor (as thel -case may be),.
and riot against Lessor or any assignee of Lessor,I nor shall any
::itch matter have any effect whatsoever, on the' rights and
obligations of Lessee or Lessor with respect to this
F.grcement. Lessee expressly acknowledges that Lessor makes,,
and has mane, no representation or warranties whatsoever as, to
Chi existence or availability of any such !I manufacturer's
warranties. I ,
-!of] 506. 506. Nonarbitr@2_e.
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(a) Lessee hereby represents that it expects that any
111uueys dcposiLed in the Acquisition Fund undelr Section ,207
Irureof will be expended for the acquisition and installation of
Oju' Equipment initially acquired on or before September 30,
(b) Lessee hereby represents that binding obligations to
pot id moneys in the Acquisition Fund, specifically $_
in ll:avor of the sellers of the Equipment being initially
c:y'uired, have
been incurred
and that
the acquisition and
insi..,l )at ion of
Equipment to be
paid for
from Acquisition Fund
uu,ni:ys will go
forward with due
diligence
to completion.
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ARTICLE VI i
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TERMINATION
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`::ct; ion 601. Voluntary Termination.
Lessee shall have the right (provided that no Event of
Default sha1_1 have occurred and be continuing hereunder), on
anyiinterest payment date on or after the fifth anniversary of
Uealexecution of the Lease, upon not less than 30 days prior
written notice to Lessor, to terminate this Agreement, (the
"Voiuntary Termination Date "). Such termination shall be
expressly subject to the following conditions, to which Lessee
hereby agroes:
(a) After giving notice
arrange a buyer for the
sale of the Equipment to
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of termination,11 Lessee i may
Equipment and arrange for the
such buyer;
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j (b) On the Voluntary Termination Date, Lessee shall
arrange for the buyer to remit the proceeds {of such
sale of the Equipment, up to the amount ''of the
applicable termination valu• owed to Lessor 'as
specified in the applicable i Schedule(s) (the
"Termination Value "), to Lessor, with Ithe amount of
such proceeds in excess of the Termination Value to
be remitted to Lessee;
(r.) Lessee shall, in addition, be obligatedlto pay on the I
voluntary Termination Date from funds or revenues of
the EMS (i) the amount by which the sale proceeds as
specified in Section 601(b) 'above is !less than the
Termination Value and (ii) all the reasonable
expenses of Lessor in connection with Isuch transfer
and all the expenses of effecting such transfer;
(d) Lessor, on the Voluntary Termination Date, shall
transfer the Equipment to the buyer thereof, without
recourse or warranty by Lessor against receipt in
cash by Lessor of the full amount of the applicable
Termination Value and of all amounts then due from
Lessee under this Agreement (including any Rent due
on the Voluntary Termination Date and any other
amounts otherwise due hereunder), and jin accordance
i therewith Lessor shall transfer to such buyer
designated by Lessee all of Lessor's right, title and
interest in the Equipment and thereupon Lessee shall
deliver, the Equipment to such buyer;
(e) IC, for any reason whatsoever, Lessee] cannot, does
not or will, not arrange for such isale of the
I ?quipment as herein described, or if, for any reason
whatsoever, such sale having been so arranged but not
consummated, as contemplated above, Lessee agrees
that in any event it shall pay to Lessor on the
Voluntary Termination Date from the funds and
revenues of EMS and amounts appropriated, but unpaid,
by Lessee pursuant to Section 204(a)(ii) hereof, the
full amount of the applicable Termination Value and
all other amounts required to be paid by Lessee
hereunder, and in such event Lessee shall be deemed
to be the buyer referred to in this Section 601.
So-_r_tion 602. Partial Termination.
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Notwithstanding any other provisions of this Agreement,
Leta ce shall have the right at anytime before return of all of
the' Equipment to Lessor to purchase and to terminate this
Agreement as to any Unit of fire protection equipment included
13
undelethis Agreement by pagent to Lessee of then 4
Termination Value as defined in Section 60 for such
Unit plus any delinquent. Rent or. other payments
attributable to such Unit. Lessee shall give written
notice to Lessor of its intent to purchase sucW Unit
not less than 30 days prior to the date on which it
proposes to terminate this Agreement as to such
Unit. Lessor and Lessee shall comply with the
provisions of Section 601(d) above.
;lion G03. _ Effect of Termination.
Upon receipt by Lessor of the sales) proceeds, or
Tirmination value pursuant to the provisions of this Article VI
and of all amounts of Rent payable up to andi including the
voluntary-Termination Date and all other amounts due under this
ArlreemenL, this Agreement and Lessee's obligations hereunder
::hall terrninaLe, except with respect to those obligations of
1_c see expressly stated to • survive termination of this
Agr :e Men l:.
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So(i ion 604. Non�!ppropriation of Funds..
In the event no funds or insufficient funds are
,Ipprupriat:ed and budgeted or are otherwise available in any
Liscal appropriations period of Lease for Rent payments under
Suction 204(a)(ii) of this Lease, then the, Lessee will;
;wIllodiately notify Lessor of such occurrence and this Lease
:,h-All lelntinaLe on the last day of the fiscal appropriat:i.ons
pt:riud for which funds are available. Such termination shall
U(: without penalty or expense to Lessee except that Lessee
:;hall pay (a) the Rent payments for which funds have been
appropriated or budgeted for the then current fiscal'
;,1,1)ropriations period; and (b) the total of all other Rent
Payments due for the balance 'of the current Term and all
renewals thereof, but only to the extent of the available
funds and revenues of the EMS. In the event of such ,
Lr:nnination, Lessee agrees to .surrender peaceably possession of
the Equipment to Lessor or its assigns on the :date of such
termination. Lessor shall have all legal and equitable rights
a n,9 •remedies to take possession of the Equipment.
Section 605. Warranties.
Notwithstanding Sections 601, 602 and 604 above, Lessee
agrees;
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(a) that it will do all things lawfully within its power
to obtain, maintain and properly request and pursue
funds from which the Rent can be paid,, including
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making provisions for such payments to the extent
necessary in each budget submitted, using. its
bonafide best 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 riot approved;
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(b) that it will not cancel this Lease under the
provisions of Section 604 if any funds are
appropriated to it or by it for the acquisition,
retention or operation of the Equipment or other
equipment performing functions similar to I the
Equipment for the fiscal appropriations period in'
which such termination occurs or the next succeeding
fiscal appropriations period thereafter; and
(c) that it will not during the Term give priority in the'
application of funds to any other functionally -
similar equipment.
.(d) nothin g in subparagraphs
(b) or (c) above shall in
any way restrict or prohibit Lessee's operation.'
through its municipal fire department of rescue units
riot designed to transport patients.
ARTICLE VII
CASUALTY OCCURRENCES
suction 701. Payment for Casualty Occurrence.
In the event that any Unit shall become 'lost, stolen,
destroyed or irreparably damaged from any cause whatsoever or
be ,taken in any governmental taking, requisition for use,
condemnation or otherwise ( "Casualty Occurrence "); Lessee shall
within fourteen days after it shall have determined that such
Unit. has r:uffered a Casualty Occurrence, notify Lessor with,
respect thereto. Lessor and Lessee shall then proceed under
Section 8U2 hereof. As a result of such payments, the amount
of Rent reserved in this Agreement shall not change; rather,;
the amount of such insurance payments shall be applied in
reduction of the last Rent payments called for under ;the
Agreement.
Srction 702. Transfer of Title.
Upon payment by Lessee to "Lessor of the monies set forth
above for any Unit affected by a Casualty Occurrence, absolute
right, title and interest in and to such Units shall pass to
15
� A �ndWMstMM LWee,MWth%* fF1FheP%aJW1r r ac ion o�heM
part of Lessor Lessor agrees however ghat Lessor will execute
and deliver t�essee such bills of sa and other documents or
instruments as Lessee may reasonably request.
ARTICLE VIII
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INSURANCE
I I
Suction 1301. Required Insurance.
Lessee shall at its
this Agreement (including
maintain in full . force
liability insurance on the
applicable insurance policy
axpense and for the
any extension or
and effect, casu¢
Equipment. Lessee
or policies shall:
initial Term of
renewal hereof)
ilty and public
agrees that the
(a) provide for such bodily injury and third party
property damage insurance, with liability limits of
not less than $ _ for each occurrence, and
shall provide all -risk physical loss and damage.
insurance in an amount not less than the then -,
applicable Termination Value, as set Iforth in the'
applicable Schedule(s) hereto, with an insurer or'
insurers of recognized financial standing;
(b) name as an insured, Lessor, as its I interest .may
appear;
� � I
(c) contain a "breach of warranty" clause whereby the
insurer agrees that a breach of the insuring
conditions or any negligence by Lessee, or any other
person shall not invalidate the insurance as to
Lessor andrits assigns;
i
(d) provide that such policies may not be' cancelled, or
materially altered without ten days prior notice to
Lessor and its assigns;
1 (e)
evidence of any renewal policies
to Lessor at least ten days prior
of the policies being renewed.
a certificate or
carriers evidencing
Lessee shall provide Lessor with
cr:rtificates of the insurance carrier or
insurance coverage as herein required.
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shall be delivered
to the expiration
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Section 802 Payment of Insurance Proceeds.
Upon receipt of any proceeds from insurance as the result
ofl loss or damage to any Unit, such proceeds will be used,
pursuant to an agreement between the Lessor and Lessee, either
(a) to purchase replacement Equipment which will become subject
this Lease or (b) to prepay the last Rent payments called for
under the Lease. {
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ARTICLE IX
MAINTENANCE AND REPAIRS
Section 901. Maintenance by Lessee.
Lessee agrees that, at its own cost and expense, it will
maintain and keep the Equipment in good working order and
condition and will make all necessary adjustments, repairs and
rcplaceiaents, and shall not use or permit the Equipment to'be
u:A,d for any purpose for which, in the opinion of the
manufacturer thereof, the Equipment is not': designed or
reasonably suitable. Lessee agrees that it shall use the
equipment in the regular course of its business only, within
the normal capacity of the Equipment and without abuse. Lessee
shall riot make modifications, alterations or additions to the
Equipment (other than normal operating accessories or controls)
without the consent of Lessor as provided herein, which consent
shall riot be unreasonably withheld. I I
Section 902. Inspection by Lessor.
Lessor shall have the right, during normal hours, subject
to applicable laws and regulations, to enter upon. the premises
where the Equipment is located in order to inspect or observe,
or 'otherwise protect Lessor's interest, and '.Lessee shall
cooperate in affording the Lessor the opportunity to do so.
Such right of Lessor, however, shall not be construed as
creating any duty of Lessor to inspect such Equipment.
Section 903. Replacement of Equipment Due to Wear:
Lessee shall, at its own expense, replace' any and all
parts and devices which may from time to time become worn out,
lust, stolen, destroyed, damaged beyond repair or rendered
unfit for use for any reason whatsoever. All such replacement
I acts, mechanisms and devices shall be free and clear of liens,
encumbrances and rights of others and shall become accessions
to the Equipment as provided herein and shall be the property
of the Lessor and shall be covered by this Agreement to the
same extent as the Equipment.
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ARTICLE X •
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IDENTIFICATION OF EQUIPMENT
Section 1001. Identification Marks.
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Lessee will keep and maintain, plainly', distinctly,
permanently and conspicuously marked on each Unit the words,
"Tit-le in this Equipment is held by I ", or
other appropriate words designated by Lessor, with appropriate
changes thereof and additions thereto as from time to 'time may
be required by law in order to protect the title of Lessor in
such Equipment and the rights of Lessor under this Agreement.
Section 1002. Other Marks.
Except as provided in Section 1001, Lessee will not allow
the name of any person, association, corporation, 'partnership
or other entity to be placed on.any Unit as a designation that
may be interpretative as 'a claim of ownership; provided,
however, that Lessee may cause the Equipment to be lettered
with the names, initials or other insignia customarily used by
Lt.ssee on Equipment of the same or similar type, solelyl for
convenience of identification.
ARTICLE XI
TAXES
5<:ction 1.101. Payment by Lessee.
i --
All payments to' be made by Lessee hereunder; will be free
of expense: to Lessor for collection and other charges, and will
be free of expense to Lessor or any other persons with respect
to the amount of any local, state or federal taxes, including,
without limitation, income, franchise, gross receipts, sales,
iise', personal property, stamp or other taxes, levies, imposts,
duties, charges or withholdings of any nature (other than net
income taxes or other fees or charges which are, solely based
oil, or solely measured by, Lessor's net 'income) assessments,
licenses and registration fees, together with any penalties,
fines or interests thereon of any fines hereafter levied' or
imposed upon, or in connection with, or measured by this
Agreement, the payments of Rent or other amounts required to be
paid by Lessee hereunder. i
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Section 1201
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ARTICLE XII
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USE, OPERATION AND POSSESSION
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Compliance with Applicable Requirements.
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During the term of this Agreement, Lessee agrees to comply'
with and cause the Equipment, each Unit and each portion of
both thereof to comply with all laws, regulations,'
requirements, rules, all insurance policies required hereunder -
and with all requirements of the manufacturer with respect to
the use, mainterrance and operation thereof.. 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 case Jany
additional or other Equipment, appliance or alteration' is
required to be made or installed on any Unit in order to comply
with such laws, regulations, requirements, rules, insurance
policies and requirements of the. manufacturer, Lessee agrees to
wake or install such Equipment, appliance or alteration at' its
own expense.
Section 1202. Possession by Lessee.
Lessee, so long as it shall not be in default under this
Aureement, shall be entitled from and after the commencement'
hereof, to the possession of the Equipment and the use thereof,
hilt: only upon and subject to all the terms and ;conditions of i
Cris Agreement.
ARTICLE XIII
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PROHIBITIONS AGAINST LIENS
Section 1301. Discharge of Liens.
Lessee will pay or satisfy and discharge any and all sums
claimed by. any party, by, through and under Lessee or its
successors or assigns, which, if unpaid, might become a lien or
other charge upon the Equipment, but shall not be required to
pay or discharge any such claims so long as the validity
thereof shall be contested in good faith and by appropriate
lr�pal proceedings in any reasonable manner, and the nonpayment
thereof does not, in the opinion of Lessor, adversely affect
the title, property or rights of Lessor hereunder, Lessee will
promptly remove and discharge any charge, lien, security
interest or encumbrance upon the Equipment, any Unit or any
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70
portion of eit er thereof, any other sum payable hereunder
Which arises for any reason, including but,, not !limited ::to all
liens which arise out of the use, ownership, possession or
leasing thereof, but not including any mortgage, charge, lien,'
security interest or encumbrance created by or resulting ;from
any act of Lessor.
Section 1302. Covenant of Lessee.
Lessee covenants that it -shall not directly or indirectly'
create, incur, assume or suffer to exist +any mortgage, pledge,
tien, charge, encumbrance or claim on or with respect to! the
Lqui.pment, except with respect to the respective rights of
Lessor and Lessee as herein provided. Lessee shall promptly
act in accordance with Section 1301 hereof to observe this
covenant in all particulars. However, this covenant shall not
be deemed breached by reason of liens for taxes, assessments or
governmental charges or levies, in each case not duel and
delinquent, or undetermined or inchoate ,materialmen's,
mechanic's, workmen's, repairmen's or other like liens arising
in the ordinary course of business and, in each case, ;riot
delinquent.
ARTICLE XIV
PERSONAL PROPLRTY
S=. ,.Aiun 1,101. Equipment Personal Prope_rLY
lt- i :; the intention and agreement of Lessor and Lessee
t1i.;t the Equipment and each Unit thereof shall be and at all
Limes remain separately identifiable personal property,
s v, <rable from the real estate on which it is located without _
damage thereto, notwithstanding that the Equipment or any part
thereof, may be, or hereinafter become, in any manner affixed
or attached to, or embedded in, or permanently resting upon,
teal property or any buildings thereon or any fixtures,, or
attached in any manner to what is permanent as by meansl of
cement, plaster, nails, bolts, screws or otherwise.
Section 1402. Covenant of Lessee.
Lessee agrees and covenants that it shall not permit any
Unit to be installed in, or used, stored or maintained with,
any personal property (except other Units) in such manner or
under such circumstances that any person might acquire any
rights in such Unit or Equipment paramount to the rights of
t.e;sor by reason of such Unit being deemed to be a portion- of
!;uch personal property; provided, however, that the use or
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maintenance in accordance with normal operating! procedures of
Lessee of any Unit with any other similar Equipment owned by or:
]eased to Lessee shall not be a violation of this provision.
{ Lessee shall not permit any Unit to be installed in or used,
stored, or maintained with,, any,real property in1such a manner
orlunder such circumstances that any persons might acquire any
rights in such Unit or Equipment paramount to the rights of
Lessor by reason of such Unit being deemed to be real property,
or;a fixture thereon.
j ARTICLE XV
ASSIGNMENT
Section 1501. Assignment by Lessee.
(a) Lessee shall sublet certain of the Equipment or a
portion of its interest hereunder to the Little Rock AmbulIance'
Authority, a duly authorized agency of Lessee. iLessor hereby'
consents to such assignment and subletting. All obligations of
Lessee hereunder for such subleased Equipment,' except those j
obligations to appropriate City revenues will be - assumed and
carried out by the Little Rock Ambulance Authority. Such a
:,ublease shall not operate as a release of any obligations of
Lessee or Lessor hereunder, i
(b) Except as set forth in (a) above, Lessee shal.linot ,
transfer or assign its rights under this Agreement or transfer
the right to possession of any Unit, without the 'prior written i
c„nsent of Lessor, and any such attempted assignment shall be '
void.
I
Section 1502. Assignment by Lessor.
All or any of the rights, benefits and advantages) of
Lessor in and to the Equipment and under this Agreement,
including the right to receive payments herein provided to be
made by Lessee, may be assigned in whole or in part by Lessor
to the Trustee or any' other person, and by each person taking
from Lessor by assignment or otherwise, and may be reassigned
by any such person at any time and from time to time. No such
assignment of any nature whatsoever shall relieve Lessee of its
obligations hereunder.
Without limiting the .generality of the foregoing, it is
agreed that Lessor may assign its rights and interest under
this Agreement pursuant to one or more Certificates 'of
Participation, as defined in a Trust Agreement of even date
herewith.
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Section 1503. Ltepresentation and Covenant of Lessee. 7 2
Lessee recognizes that it is customary in commercial
Financing to .assign documents such as this Agreement' anu
further understands that the assignment of this Agreement, or
some or all of the rights of Lessor hereunder,, is
contemplated. Lessee expressly represents, covenants and
warrants for the purposes of assurance to any person, firm,
corporation, partnership or other entity considering the
acquisition of this Agreement or of all or any of the rights of
Lessor hereunder, and for the purpose of inducing such
acquisitions, that in the event of such assignment by Lessor as
provided in Section 1502, the rights of such assignee to the
Rent, such other amounts payable by Lessee hereunder or such
other part hereof as may be assigned, as well as any other
rights thereunder which may be so assigned, shall not] be
Subject to any defense, set -off, counterclaim or recoupment
whatsoever arising out of any breach of any obligation, if any,
of Lessor, or any assignor, with respect to the Equipment or
with respect to any indemnity, if any, herein contained, ' nor
:subject to any defense, set -off, counterclaim or recoupment
wir+tsoever arising by reason of any other indebtedness or
Iiahility at any time owing to Lessee by Lessor, or any
rii :signor. Any and all such other obligations, howsoever
arising, shall be and, remain enforceable by Lessee against,and
only against Lessor, or any assignor.
ARTICLE XVI
DEFAULT
Section 1601. Events of Default.
The following occurrences shall constitute Events of
Default hereunder:
(a) Lessee shall fail to pay in full any sum payable
by Lessee when payment thereof shall be due
hereunder; or
(b) Lessee shall fail to perform any of its other
covenants in this Agreement and such failure
shall continue for 30 days after written notice
thereof to Lessee by Lessor; or
(c) Lessee makes an assignment for the benefit of
creditors, admits in writing its inability to
pay its debts as they become due, files a
voluntary petition in bankruptcy, is adjudicated
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a bankrupt or an insolvent, files a petition
seeking for itself reorganization, arrangement,
recomposition, readjustment, liquidation,,
dissolution or similar arrangement under anyi
present or future statute, law or regulation or
files an answer admitting the material
allegations of a petition filed against it in
such proceeding or consents to or acquiesces in
the appointment_ of a trustee, receiver,, or
liquidator of it' or of all or any substantial
part of its assets or properties, or if it shall
take any action looking to its dissolution or
liquidation; or
(d) Within 60 days after the commencement of any
proceedings against Lessee seeking
reorganization, arrangement, readjustment,
liquidation, dissolution, or similar relief
under any present or future statute, law or
regulation such proceedings shall not have been
dismissed; or if within 60 days after
appointment without Lessee's consent or
acquiescence of any trustee, receiver or
liquidator of it or of all or any substantial
part of its assets or properties, such
appointment shall not be vacated; or
(e) Lessee shall make or suffer any unauthorized
assignment or transfer of this Agreement or any
interest herein or attempts to sell, transfer,
encumber, part with possession or assign (except
as expressly permitted by the provisions hereof)
the Equipment or any Unit; or
(f) Lessee shall have made any representation or
warranty in this Agreement, or in any document
or certificate executed by Lessee pursuant to
this Agreement, which is found to be false in
any material respect.
(g) There shall occur a Determination of Taxability
as set forth in, and subject to the provisions
of, Section 1605 hereof.
(h) Lessee shall fail to pay to Lessor the
Termination Value under Section 601 hereof.
(i) The Little Rock Ambulance Authority shall incur
debts to First Commercial Bank of Little Rock,
N.A., secured by a first lien on its accounts
receivable in excess of $
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Section 1602. Lessor's Rights Upon Default.
74
/ At any time after the occurrence of an Event of Default;
/ Lessor may, upon written notice to Lessee and upon compliance'
with any legal requirements then in force applicable to (such
action by Lessor (the "Declaration of Default "), declare the
entire unpaid balance of the Rent to the end of the then;
current Term plus the Termination Value for each Unit as of the
end of the then - current Term, together with the interestI,
thereon then accrued and unpaid, immediately due and payable,
:without further demands. Lessor shall thereupon he entitled to
recover judgment for such unpaid balance of the Rent,: as
determined above. Lessee hereby agrees to give prompt notice
in writing to Lessor of any default under this Agreement known'
to Lessee. Lessor may waive any such Event of Default and its
consequences and rescind Declaration of Default by notice to
Lessee in writing to that effect, and thereupon the respective
rights of the parties shall be as they would have been if no
such default had existed and no Declaration of Default had been
made. Notwithstanding the provisions of this paragraph, it is
expressly understood and agreed by Lessee that time is of' the
essence of this Agreement and that no such waiver or rescission
:Fall extend to or affect any other or subsequent default or
impair any rights or remedies consequent thereon.
Section 1603. Remedies.
At any time upon a Declaration of Default, Lessor may,
upon such further notice, if any, as may be required for
aaupliance with any requirements of law then in force and
applicable to the action to be taken by Lessor, take or cause
to be taken by its agent or agents immediate possession of the
Equipment-, or any Unit or Units thereof, and all or any portion
of the moneys and /or securities held in the Acquisition Fund
and /or the Replacement Fund, without liability to return to
Lessee any sum's theretofore paid and free from all claims
whatsoever, except as hereinafter expressly provided, and may
remove the same from possession and use of Lessee, Trustee or
anyone having such possession and use and for such purpose may
enter upon the premises of Lessee or wherever the Equipment may
be located, with or without process of law. Lessee hereby
expressly waives any and all claims against Lessor and its
agent or agents for damages of any nature whatsoever in
connection with any retaking of any Unit of the Equipment in
any reasonable manner hereunder and in connection with any.
retaking of, and all or any portion of the moneys and /or
securities held in the Acquisition Fund. Lessor shall also be
entitled to collect from all then available funds and revenues
of the Authority the entire amount of such judgment or the
unpaid balance of same after application of any proceeds from
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sale of the Equipment. Lessor's ability to collect any other.
funds from Lessee shall be specifically limited to the amounts•
appropriated, but unpaid, by Lessee pursuant to Section -
204(a)(ii) for the appropriation period in which the Event of
Default occurred.
At any time during the continuance of a Declaration of
Default, Lessor with or without the retaking of possession
thereof at its election and upon reasonable notice to Lessee
and any other persons to whom the law.may require notice,, may
sell the Equipment-, or any Unit thereof, free from any and all
claims of Lessee, or any other party claiming by, through or
under Lessee at law or in equity, at public or private sale and
with or without advertisement as Lessor may determine;
provided, however, that if prior to such sale or prior to the
making of a contract for such sale, Lessee should tender full
payment of the entire indebtedness in respect of the Rent as
determined pursuant to the Declaration of Default and Section
1602 above, all other payments due under this Agreement as well
as expenses of Lessor in retaking, holding and repairing' the
Equipment for disposition and arrangement for the sale 'and
Lessor's attorneys' fees, then in such event absolute right to
I:he possession of and title to the Equipment shall pass to and
vest in Lessee. The proceeds of such sale or any lease or
other disposition of the Equipment as provided hereunder, less
the attorneys' fees and any other expenses incurred by Lessor
in taking possession of, and removing, storing and so disposing
„= I:he Equipment, shall be credited on the amount due to Lessor
under the provisions of this Agreement.
Each and every power and remedy hereby and hereunder
specifically given to Lessor shall be in addition to every
other power and remedy hereby given or now or hereafter
c,xist'ing at law or in equity, and each and every power and
remedy may be exercised from time to time and simultaneously
and as often and in such order as may be deemed expedient by
Lessor, except as such exercise may expressly be limited
herein. All such power and remedies shall be cumulative; and
the exercise of one shall not be deemed a waiver of the right
to exercise any other or others, except as such exercise may
expressly be limited herein. No delay, except where time
limits are expressly herein provided, or omission of Lessor in
the exercise of any such power or- remedy and no renewal' or
extension of any payments due hereunder shall impair any such
power or remedy or shall be construed to be a waiver of any
default or art acquiescence therein.
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! Section 1609. Application of Moneys..
All sums of money realized by Lessor from sale or other
disposition of the Equipment shall be applied, first, to, the
payment of the expenses and liabilities of Lessor hereunder,
including all reasonable expenses such as attorneys' fees,
incurred by Lessor in enforcing its remedies under the terms of
this Agreement, and second to the payment of the unpaid Rent as
determined following the Declaration of Default and Section
1602 above. if, after applying as aforesaid all sums of money
realized by Lessor, there shall remain any amount due to it
under the provisions of this Agreement, then Lessee shall pay
the amount of such deficiency to Lessor upon demand, but not to
exceed the funds available as provided in Section 1603, and, if
Lessee shall fail to .pay the full deficiency, Lessor may bring
suit therefor and shall be entitled to recover a judgment
against Lessee. If; after applying as aforesaid all sums
realized by Lessor,' there shall remain a surplus in possession
of Lessor, such surplus shall be paid to Lessee.
S,.ction 1605. Determination of Taxability.
Should there occur a "Determination of Taxability, " the
Lessor shall immediately have all rights provided in Section
1602 as if an Event of Default had occurred.
A "Determination of Taxability" shall mean any
determination, decision or decree made in regard to Section 103'
of the Internal Revenue Code of 1959, as amended, by 'the
c,wmissioner or any District Director of Internal Revenue, or,
if there is an appeal from any such determination by a
conunissioner or District Director, when a final administrative
or judicial determination has been made, or by a final decision
of any court of competent jurisdiction, that the interest
payable hereunder is includable in the gross income of the
Lessor or any, assignee of Lessor authorized hereby (other than
a taxpayer who is a substantial user or related person within
the meaning of the Code) for any reason other than !the
enactment by the United States Congress of a change in the tax
laws of the United States. Provided, however, no Determination
of Taxability shall be deemed to have occurred under this
Agreement unless:
(i) Lessee shall have been given written notice of
the assessment or other proceeding alleging that -
interest hereunder is subject to federal income
tax in sufficient time to permit the affected
taxpaye: to interpose defenses as directed by
Lessee; and
26
ILI (ii) Oe affected taxpayer allows Lessee to retain
counsel to represent such taxpayer and to direct
the defense of such assessment or proceeding, at
the expense of Lessee; and
(iii) The affected taxpayer exhausts all appeals
directed by Lessee, at the expense of Lessee.
ARTICLE XVII
FINANCING STATEMENTS
Section 1701. Further Assurance.
Lessee, at the request of Lessor, shall execute and
deliver to Lessor such documents or instruments as may be
advisable or necessary, in the reasonable judgment of Lessor or
any assignee of Lessor, to place on public record Lessor's
ownership of the Equipment or to evidence any other security
interest applicable hereunder.
ARTICLE XVIII
APPLICABLE STATE LAWS
section 1801. Compliance with State Law and Waiver.
Any provision of this Agreement prohibited by any
applicable law of the 'State of Arkansas shall be ineffective,
without modifying the remaining provisions of this Agreement.
Where, however, the-conflicting provisions of any applicable
:state law may be waived, they are hereby waived by Lessee to
the full extent permitted by law, to the. end that this
Agreement shall be deemed to be a lease agreement with option
to purchase and enforced as such. Except as otherwise provided
in this Agreement, Lessee, to the full extent permitted by law,
hereby waives all statutory or other legal requirements for any
notice of any kind, notice of intention to take possession of
of .to sell the Equipment, or any Unit, and any other
requirements as to the time, place and terms of sale thereof,
any other requirements with respect to the enforcement of
Lessor's right hereunder and any and all rights of redemption.
27
ARTICLE XIX
•
MISCELLANEOUS
Section 1901. Extension Not A Waiver.
Any extension of time for payment hereunder or other
indulgence duly granted to Lessee in the discretion of Lessor
shall not otherwise alter or affect Lessor's rights or the
obligations of Lessee hereunder. Lessor's acceptance of ,
payment after it shall have become due hereunder shall no be
deemed to alter or affect Lessee's obligation or Lessor's
rights hereunder with respect to any subsequent payment or
defaults with respect thereto.
Section 1902. Notices.
All notices and other communications hereunder shall be in
wi iting and shall be deemed to have been given when mailed by
first class registered or certified mail, postage prepaid,
;addressed to Lessor and Lessee at their respective addresses
set forth below, or at such other address as Lessor or Lessee,
as the case may be, shall have furnished in writing to the
other.
Lessor:
Lessee: City of Little Rock
City Hall
Little Rock, Arkansas 72201
Attention: City Manager
Section 1903. Effect and Modification of Agreement.
This Agreement and the Schedule(s) hereto exclusively and
completely state the rights and agreements of Lessor and Lessee
with respect to the Equipment and supersede all other
agreements, oral or written with respect to the Equipment. No
variations of this 'Agreement and no waiver of any of its
provisions or conditions shall be valid unless made in writing
and duly executed by and on behalf of Lessor and Lessee.
Section 1904. Governing Law.
The terms of this Agreement and all rights and
obligations hereunder shall be governed by the laws of the
State of Arkansas.
28
Woo]
Section 1905. Executi.on.
.This agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be .
an original, and such counterparts together shall constitute
but one and the same contract, which shall be sufficiently
evidenced by any such original counterpart.
IN WITNESS WHEREOF, the parties hereto, each pursuant to
due authority, have caused this instrument to be executed in
their respective corporate names by duly authorized officers,
all as of the date first above written, but actually on the
dates opposite their respective signatures below.
LESSOR
By
ATTEST:
TITLE
_ - - -- THLE
DATE:
ATTEST:
City Clerk
(SEAL)
DATE:
ATTEST:
Secretary
DATE:
0652S
29
CITY OF LITTLE ROCK, ARKANSAS
LESSEE
Mayor
APPROVED:
CITY OF LITTLE ROCK
AMBULANCE AUTHORITY
By
Chairman
t• � .r t• t• tr � � � t• � t• � r t•
80
SCHEDULE A -1
One (1) new 100 ft. ladder truck and
one (1) new 1000 gallon pumper truck.
Note: If fire
trucks are included in
the municipal
lease, then $358,000
appropriated for
the purchase of the
aforementioned
fire equipment should
be reallocated
for the construction
of a central facility
to be leased from
the City by the Authority with such
lease payments
to be applied toward
lease payments
for fire equipment
included under
the municipal lease
arrangement.
LOW
SCHEDULE A -2
a) One (1) new UHF -EMS communications system
(negotiated and ordered through Motorola, Inc.)
Including but not limited to, fixed -end equipment
consisting of radio base station equipment,
microwave, audio matrix and virgo monitors;
other equipment consisting of pagers and consoles
for dispatch and medical coordination, and
additional equipment consisting of 180 ft. tower
at Ozark Point, 120 ft. tower at 8th and Ringo
and a fail -safe generator.
b) Ten (10) new Type I ambulance units including
ten (10) chassis and ten (10) patient compartments;
c) On -board medical equipment for ten (10) units
and back -up inventory;
d) Eight (8) used ambulance units purchased in
response to crisis to be rolled into the lease to
restore the working capital line extended through
First Commercial and Worthen Banks.