2288 R° °
. A 2 8
107846 71043-001
RESOLUTION AUTHORIZING AND APPROVING EXECUTION OF AN
EQUIPMENT-LEASE PURCHASE AGREEMENT WITH CADENCE EQUIPMENT
FINANCE,A DIVISION OF CADENCE BANK
WHEREAS, Council Members, the Governing Body (the "Governing Body") of City
of West Memphis, AR (the "Lessee"), acting for and on the behalf of the Lessee hereby finds,
determines and adjudicates as follows:
1. The Lessee desires to enter into an Equipment Lease - Purchase Agreement with the Lease
Schedule and Exhibits attached thereto in substantially the same form as attached hereto as Exhibit
"A" (collectively,the "Agreement")with Cadence Equipment Finance,a division of Cadence Bank
(the "Lessor"), for the purpose of leasing with an option to purchase the equipment as described
therein for the total cost specified therein(the "Equipment").
2. It is in the best interest of the public purposes of the Lessee that the Lessee lease with an
option to purchase the Equipment pursuant to and in accordance with the terms of the
Agreement; and
3. It is necessary for the Lessee to approve and authorize the Agreement.
NOW,THEREFORE,BE IT RESOLVED by the City Council of the City of West Memphis
for on behalf of Lessee as follows:
Section 1. The Agreement and Exhibits attached thereto in substantially the same form as
attached hereto as Exhibit "A" by and between the Lessor and the Lessee is hereby approved and
Marco M. McClendon, Mayor, (the "Authorized Officer") is hereby authorized and directed to
execute said Agreement on behalf of the Lessee.
Section 2. The Agreement is being issued in calendar year 2023.
Section 3. Neither any portion of the gross proceeds of the Agreement nor the Equipment
identified to the Agreement shall be used (directly or indirectly) in a trade or business carried on
by any person other than a governmental unit, except for such use as a member of the general
public.
Section 4. No portion of the rental payments identified in the Agreement (a) is secured,
directly or indirectly, by property used or to be used in a trade or business carried on by a person
other than a governmental unit, except for such use as a member of the general public, or by
payments in respect of such property; or(b) is to be derived from payments (whether or not to the
Lessee)in respect of property or borrowed money used or to be used for a trade or business carried
on by any person other than a governmental unit.
Section 5. No portion of the gross proceeds of the Agreement are used (directly or indirectly)
to make or finance loans to persons other than governmental units.
Section 6. The Authorized Officer is further authorized for and on behalf of the Governing
Body and the Lessee to do all things necessary in furtherance of the obligations of the Lessee
pursuant to the Agreement, including execution and delivery of all other documents necessary or
RECEIVED
C '
appropriate to carry out the transactions contemplated thereby in accordance with the terms and
provisions thereof.
Section 7. The Lessee desires to designate the Agreement as a "qualified tax-exempt
obligation" of the Lessee, as defined in Section 265(b)(3) of the Internal Revenue Code of 1986
(the "Code"). The aggregate face amount of all tax-exempt obligations (excluding private activity
bonds other than qualified 501(c)(3)bonds)issued or to be issued by the Lessee and all subordinate
entities thereof during the current calendar year is not reasonably expected to exceed$10,000,000.
The Lessee and all subordinate entities thereof will not issue or enter into in excess of$10,000,000
of tax-exempt obligations (including the Agreement, but excluding private activity bonds other
than qualified 501(c)(3)bonds)during the current calendar year,without first obtaining an opinion
of nationally recognized counsel in the area of tax-exempt municipal obligations acceptable to the
Lessor that the designation of the Agreement as a "qualified tax-exempt obligation" will not be
adversely affected.Following the reading of the foregoi g esolut' n, dfj f {/ derlornoved that the
foregoing resolution be adopted. seconded the motion for its adoption.
The put the question to a roll call vote and the result was as follows:
Voted: yd.,)
Voted:1
1j_
dLt#719 Voted.
A/dit g,t/ Voted.
9.R. /44 Voted:
Ib , 417 4Ih Voted:
tick* /_221 . Voted:
frk Voted:
Voted:
�dAzi.ee Voted:
The motion having received the affirmative vote of all members present, the declared the
motion carried and the resolution adopted, this the 17th day of August, 2023.
0 (mil
MARCO M. Mc LENDON, MAYOR
ATTEST:
PATRICIA BOYD JOPL , CIT C ERK
CERTIFICATE
STATE OF ARKANSAS )
(SS
COUNTY OF CRITTENDEN)
The undersigned, City Clerk of the City of West Memphis, Arkansas, hereby
certifies that the above and foregoing is a true and complete and correct copy of
Resolution authorizing and approving execution of an equipment Lease
Purchase Agreement with Cadence Equipment Finance, a division of
Cadence Bank. appears in the official records of said City.
IN WITNESS, WHEREOF, I have hereunto set my hand as City Clerk of the City
of West Memphis, Arkansas, and the Official Seal of said City, on this 17, day of
AUGUST 2023.
c,/,,4,-,,,-,),,,A,.
CITY CLERK, CITY OF W ST MP
CRITTENDEN COUNTY, ARKANSAS
107846 71043-001
EQUIPMENT LEASE - PURCHASE AGREEMENT
LESSOR:
CADENCE EQUIPMENT FINANCE,
a division of Cadence Bank
1222 Rogers Ave
Fort Smith, AR 72901
LESSEE:
City of West Memphis, AR
205 S Redding ST
West Memphis , AR 72301
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TERMS AND CONDITIONS OF AGREEMENT
1. Agreement.
(a) Lessee requests Cadence Equipment Finance, a division of Cadence Bank
("Lessor") to acquire the personal property (herein called "Equipment") described in the attached
Lease Schedule(s). Lessee agrees to lease with an option to purchase the Equipment from Lessor
and Lessor agrees to lease the Equipment to Lessee upon receipt of a duly authorized written
acceptance hereof, signed by an authorized officer of Lessor at its principal office, upon the
terms and conditions of this Equipment Lease - Purchase Agreement (the "Agreement"). Lessee
represents, covenants and warrants, and as requested by Lessor will deliver an opinion of counsel
substantially in the form attached as Exhibit B, to the effect, (i) that it is a fully constituted
political subdivision or agency of the State of Arkansas (the "State") and is authorized by the
Constitution and laws of the State and its own internal or administrative procedure to enter into
the transactions contemplated by this Agreement and to carry out its obligations hereunder, and
(ii) that this Agreement has been duly authorized, executed and delivered by Lessee and
constitutes a legal, valid and binding agreement enforceable in accordance with its terms. Lessee
agrees that it will do or cause to be done all things necessary to preserve and keep this
Agreement in full force and effect. Lessee further represents, covenants and warrants that Lessee
has complied with all bidding requirements where necessary and by due notification presented
this Agreement for approval and adoption as a valid obligation on its part and that Lessee has
sufficient appropriations or other funds available to pay all amounts due hereunder for the
current fiscal year. In addition, Lessee represents, covenants and warrants to Lessor that:
(i) The Equipment is essential to the function of Lessee or to the service Lessee
provides to its citizens;
•
(ii) Lessee has an immediate need for, and expects to make immediate use of,
substantially all the Equipment, which need is not temporary or expected to diminish in the
foreseeable future;
(b) Lessee acknowledges that Lessor has agreed to enter into this Agreement on the
condition that the interest portions of the Payments as defined in Section 5 hereof shall be
deductible from gross income pursuant to Section 103 of the Internal Revenue Code of 1986 and
the Regulations thereunder (the "Code") is available. Said exception is subject to certain
conditions relating to Lessee's use of the Equipment and to Lessee's issuance of tax-exempt
obligations. In that regard, Lessee represents, covenants and warrants that:
(i) The Equipment will not be used, directly or indirectly, in a trade or business
carried on by any person other than a governmental unit (within the meaning of Section 141 of
the Code), except for such use as a member of the general public;
(ii)No portion of the Payments as defined in Section 5 hereof: (A)will be,secured,
directly or indirectly, by property used or to be used in a trade or business carried on by a person
other than a governmental unit (within the meaning of Section 141 of the Code), except for such
2
use as a member of the general public, or by payments in respect of such property; or(B) will be
derived from payments, whether or not to Lessee, in respect of property or borrowed money used
or to be used for a trade or business carried on by any person other than a governmental unit
(within the meaning of Section 141 of the Code); and
(iii) No portion of the gross proceeds of this Agreement will be used (directly or
indirectly) to make or finance loans to persons other than governmental units.
(c) Lessee acknowledges and agrees that the Payments have been calculated by Lessor
assuming that the interest portion of each Payment is exempt from federal income taxation.
Lessee represents, covenants and warrants that it will do or refrain from doing all things
necessary or appropriate to insure that the interest portions of the Payments are exempt from
federal income taxation, including, but not limited to, executing and filing all information
statements required by Section 149(e) of the Code and timely paying, to the extent of available
funds, amounts required to be rebated to the United States pursuant to Section 148(f) of the
Code.
(d) In the event that it is determined that any of the interest components of Payments
may not be excluded from gross income for purposes of federal income taxation, Lessee agrees
to pay to Lessor promptly after any such determination and on each Date of Payment thereafter
an additional amount determined by Lessor to compensate Lessor for the loss of such
excludability (including without limitation, compensation relating to interest expense, penalties
or additions to tax), which determination shall be conclusive absent manifest error.
(e) Lessee acknowledges that the representations, covenants and warranties set forth in
Sections 1(b) and 1(c) shall survive the expiration of this Agreement and that Lessor may pursue
any applicable remedies for the breach of such representations, covenants and warranties at any
time.
2. Equipment Delivery and Acceptance. At the request of Lessee, Lessor agrees to
order the Equipment which Lessee has described in the Lease Schedule(s) from the supplier of
such Equipment but shall not be liable for specific performance of this order. Lessee shall accept
such Equipment when and if delivered and placed in good repair and working order and hereby
authorizes Lessor to add to this Agreement the serial number of each item of Equipment so
delivered. Any delay in such delivery shall not affect the validity of this Agreement. Lessee shall
have thirty (30) days from the date of delivery to accept such Equipment and deliver an executed
Equipment Acceptance Certificate in the form attached hereto as Exhibit D. Notice of any
defects must be given to Lessor within thirty (30) days of delivery. In the event the Equipment is
not accepted by Lessee within thirty (30) days from the date of delivery and such acceptance is
unreasonably withheld by Lessee,Lessor, at Lessor's option, shall have the right to cancel this
Agreement.
3. Warranties. Lessor hereby assigns to Lessee for and during the term of this
Agreement all manufacturer warranties and guarantees express or implied, issued on or
applicable to the Equipment and Lessor authorizes Lessee to obtain the customary services
furnished in connection with such warranties and guarantees at Lessee's expense. LESSOR IS
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NOT A MANUFACTURER OR SUPPLIER OF THE EQUIPMENT, AND MAKES NO
WARRANTIES WITH RESPECT TO THE EQUIPMENT, EITHER EXPRESS OR IMPLIED,
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE. Lessor authorizes Lessee to enforce in its own name any warranty,
representation or other claim enforceable against the manufacturer. Lessor assumes no
responsibility for shipment, delivery, installation or maintenance and all claims of Lessee with
respect thereto, whether for delay, damage or otherwise, shall be made against supplier. Lessor,
at its option, may provide in its purchase order that supplier agrees that any of such claims may
be made by Lessee directly against suppliers. The obligation of Lessee to pay the Payments as
defined in Section 5 below, shall not be abated, impaired or reduced by reason of any claims of
Lessee with respect to Equipment condition, quality, workmanship, delivery, shipment,
installation, defects or otherwise.
4. Agreement Term. This Agreement shall become effective upon the execution hereof
by Lessor. The initial term of this Agreement shall commence on the date the Equipment is
accepted pursuant to Section 2 above, and shall end on the last day of Lessee's current fiscal
year. The term of this Agreement may be continued, solely at the option of Lessee, for additional
successive one-year renewal terms up to the expiration of the number of periods indicated in
Schedule A of the Lease Schedule(s) (hereinafter the "Agreement Term"). At the end of the
initial term and at the end of each renewal term until the expiration of the Agreement Term, this
Agreement shall be automatically renewed on a year-to-year basis, except as provided for in
Section 5 and Section 14 below.
5. Payments.
(a) Lessee agrees to pay to Lessor or its assignee total Payments ("Payments") set forth
in Section A of the Lease Schedule(s), including the interest portions thereof, equal to the
amount specified therein. Said Payments shall be payable without notice or demand at the office
of Lessor(or such other place as Lessor may from time to time designate in writing). Any notice,
invoicing, purchase orders, quotations or other forms or procedures required by Lessee of Lessor
as a condition precedent to payment shall be fully explained and provided to Lessor prior to
execution of this Agreement. Except as specifically provided in paragraph (c) of this Section,
Payments shall be absolute and unconditional in all events and shall not be subject to any set-off,
defense or counterclaim.
(b) Lessee reasonably believes that funds can be obtained sufficient to make all
Payments during the Agreement Term and hereby covenants that it will do all things lawfully
within its power to obtain, maintain, and properly request and pursue funds from which the
Payments may be made, including making provisions for such payments to the extent necessary
in each biannual or annual budget submitted for the purpose of obtaining funding, using its bona
fide best efforts to have such portion of the budget approved and to exhaust all available reviews
and appeals in the event such portion of the budget is not approved. It is Lessee's present intent
to make Payments for the full Agreement Term if funds are legally available therefor, and in that
regard, Lessee represents that the use of the Equipment is essential to its proper efficient and
economic operation and that the functions performed by the Equipment could not and will not be
transferred to other equipment now available or which may be subsequently acquired for use by
Lessee during the Agreement Term.
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(c) In the event no funds or insufficient funds are appropriated for Payments and other
sums due in any fiscal.year under this Agreement, Lessee shall immediately notify Lessor or its
assignee of such occurrence and this Agreement shall create no further obligation of Lessee as to
such fiscal year and shall be null and void, except as to funds which have been previously
appropriated. In such event, this Agreement shall terminate without penalty to Lessee on the last
day of the fiscal year for which funds were appropriated. Subsequent to such termination of this
Agreement, Lessee shall have no continuing obligation to make Payments under this Agreement.
In the event of such termination, Lessee agrees to peaceably surrender possession of the
Equipment to Lessor or its assignee on the date of such termination, packed for shipment in
accordance with manufacturer specifications and freight prepaid and insured to any location in
the continental United States designated by Lessor. Lessor shall have all legal and equitable
rights and remedies to take possession of the Equipment.
6. Location. The Equipment shall be delivered and thereafter based at the location
specified in the Lease Schedule(s) and shall not be removed therefrom without Lessor's prior
written consent.
7. Use: Repairs. Lessee shall use the Equipment in a careful manner and shall comply
with all laws, ordinances and regulations relating to, and shall pay all costs, claims, damages,
fees and charges arising out of its possession, use or maintenance. Lessee, at its expense, shall
keep the Equipment in good repair and furnish all parts, mechanisms and devices required
therefor.
8. Alterations. Lessee shall not make any alterations, additions or improvements to the
Equipment without Lessor's prior written consent unless such alterations, additions or
improvements may be removed without damage to the Equipment.
9. Loss and Damage. Lessee shall bear the entire risk of loss or damage to all
Equipment from any cause whatsoever, and no such loss or damage of the Equipment nor defect
therein or unfitness or obsolescence thereof shall relieve Lessee of the obligation to make
Payments or any other obligation under this Agreement. In the event of damage to any item of
Equipment, Lessee shall immediately place the same in good repair. If Lessor determines that
any item of Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee at the option
of Lessor shall:
(a) Replace the same at Lessee's expense with like equipment in good repair; or
(b) Pay Lessor in cash all of the following: (i) all amounts then owed by Lessee to
Lessor under the applicable Lease Schedule, and (ii) an amount equal to the Concluding Payment
set forth in Schedule A to such Lease Schedule. Upon Lessor's receipt of such payment, Lessee
shall be entitled to whatever interest Lessor may have in said item, in its then condition and
location, without warranty expressed or implied.
10. Insurance. Lessee shall, during the Agreement Term, purchase and maintain
insurance, or with Lessor's prior written consent may self-insure, covering specifically all
5
Equipment of every description under this Agreement against casualty occurrences, including the
perils of FIRE, LIGHTNING, WINDSTORM, HAIL, EXPLOSION, AIRCRAFT, VEHICLES,
SMOKE, RIOT, CIVIL COMMOTION, STRIKERS, LOCKED OUT WORKMEN OR THEFT,
BURGLARY AND WATER DAMAGE, in an amount equal to the cost of replacement of all
Equipment and with a company approved by Lessor and shall carry public liability and property
damage insurance sufficient to protect Lessor from liability in all events. The proceeds under this
insurance shall be payable to Lessee and Lessor or its assignee as additional insured as their
interest may appear under the terms and conditions of this Agreement. Such proceeds shall be
available to Lessee for the satisfaction of Lessee's obligations under Section 9 hereof. Upon
acceptance of the Equipment and upon each insurance renewal date, Lessee shall deliver to
Lessor or its assignee a duly authenticated certificate evidencing such insurance. In the event of
any loss, damage, injury or accident involving the Equipment, Lessee shall promptly provide
Lessor with written notice thereof and make available to Lessor all information and
documentation relating thereto.
11. Liens and Taxes. Lessee shall keep the Equipment free and clear of all levies, liens
and encumbrances. Lessee shall pay, when due, all charges and taxes (local, state and federal)
which may now or hereafter be imposed upon the ownership, leasing, rental, sale, purchase,
possession or use of the Equipment, excluding, however, all taxes on or measured by Lessor's
income. If Lessee fails to pay said charges and taxes when due, Lessor shall have the right, but
shall not be obligated, to pay said charges and taxes. In any event, Lessee shall pay Lessor the
amount thereof upon demand whether or not Lessor shall have advanced the funds for Lessee.
12. Indemnity. To the extent permitted by the laws of the State, Lessee shall indemnify
Lessor against and hold Lessor harmless from any and all claims, actions, proceedings, expenses,
damages or liabilities, arising in connection with the Equipment, including, without limitation,
its manufacture, selection, purchase, delivery, possession, use, operation or return and the
recovery of claims under insurance policies thereon.
13. Assignment.
(a) Without Lessor's prior consent, Lessee shall not either (i) assign, transfer, pledge,
hypothecate, grant any security interest in or otherwise dispose of this Agreement or the
Equipment or any interest in this Agreement or said Equipment, or (ii) lease or lend the
Equipment or permit it to be used by anyone other than Lessee or Lessee's employees. Lessor
may, without the consent of Lessee, assign, in whole or in part, its rights, title and interest in and
to this Agreement, and all attachments hereto including Lease Schedule(s), to various
assignee/investors or their agents or trustees, and/or grant or assign a security interest in this
Agreement or the Equipment, in whole or in part and its assignee may reassign this Agreement.
Lessee agrees that this Agreement may become a part of a pool of contract obligations at
Lessor's option, and Lessor or its assignees may assign or further assign either the entire pool or
a fractionalized interest therein. Each such assignee shall have all of the rights of Lessor under
this Agreement. Lessee shall recognize and acknowledge each such assignment and/or security
interest. Subject to the foregoing, this Agreement inures to the benefit of and is binding upon the
heirs, executors, administrators, successors and assignees of the parties hereto.
6
(b) This Agreement and any interest herein may be transferred only through a book
entry system as prescribed by Section 149(a) of the Code, as the same may be amended from
time to time. During the term of this Agreement, Lessee shall keep a complete and accurate
record of all assignments and other transfers in form and substance necessary to comply with
Section 149(a) of the Code. Upon assignment of Lessor's interest herein, Lessor will cause
written notice of such assignment to be sent to Lessee and, upon receipt of such notice of
assignment, Lessee shall: (i) acknowledge the same in writing to Lessor; and (ii) record the
assignment in Lessee's "book entry system" as that term is defined in Section 149(a) of the Code.
No further action will be required by Lessor or by Lessee to evidence the assignment. LESSEE
AGREES THAT, UPON NOTICE OF ASSIGNMENT, IF SO INSTRUCTED IT SHALL
PAY DIRECTLY TO THE ASSIGNEE, WITHOUT ABATEMENT, DEDUCTION OR
SETOFF, ALL AMOUNTS THAT BECOME DUE HEREUNDER.
14. Purchase Option. At the written request of Lessee, delivered thirty (30) days prior
to a Date of Payment as shown on Schedule A to a Lease Schedule, and if Lessee is not on such
Date of Payment in default pursuant to any provision of this Agreement, Lessor shall convey all
of Lessor's right, title and interest in and to the Equipment described in that Lease Schedule to
Lessee upon payment by Lessee of the applicable Concluding Payment and the Base Payment
due on such date of Payment. Upon satisfaction by Lessee of such purchase conditions, Lessor
shall deliver to Lessee a full release of any right, title or interest of Lessor in and to such
Equipment.
15. Taxes on and Title to Equipment. In addition to other payments to be made
pursuant to this Agreement, Lessee shall indemnify and hold Lessor harmless from and against,
and shall pay Lessor, as additional payment, on demand, an amount equal to, all license,
assessments, sales, use, real or personal property, gross receipts or other assessments, taxes,
levies, imposts, duties and charges, if any, together with any penalties, fines or interest thereon
imposed against or on Lessor, Lessee or the Equipment by any governmental authority upon or
with respect to the Equipment or the purchase, ownership, possession, operation, return or sale
of, or receipt of payments for, the Equipment, except any Federal or state income taxes, if any,
payable by Lessor. Lessee may contest any such taxes prior to payment provided such contest
does not involve any risk of sale, forfeiture or loss of the Equipment or any interest therein.
This Agreement is intended for security. For purposes of laws governing taxation and
conditional sales, title to the Equipment shall be deemed to be transferred hereby to Lessee,
subject to immediate and automatic reversion to Lessor upon any default by Lessee or upon
failure to appropriate sufficient funds in order to make payments required hereunder, unless
Lessor otherwise elects in writing.
16. Personal Property. The Equipment is, and shall at all times during the Agreement
Term be and remain, personal property.
17. Security Interest.To secure all of its obligations hereunder, Lessee grants to Lessor
a first and prior security interest in any and all right and interest of Lessee in the Equipment, this
Agreement and Payments due under this Agreement. Lessee agrees that this Agreement may be
filed as a financing statement evidencing such security interest, and agrees that Lessor may file
7
financing statements and other instruments necessary or appropriate to evidence such security
interest. Lessee further agrees that the Uniform Commercial Code of the State shall apply as
between the parties hereto and assignees of Lessor.
18. Events of Default. Lessee shall be in default under this Agreement upon the
occurrence of any of the following events:
(a) Nonpayment when due or within six (6) days thereafter of any Payment of rent or
other sum owing hereunder;
(b) Breach of any other covenant or agreement in this Agreement and the continuance
of such breach for a period of 10 consecutive days following Lessee's receipt of written notice
thereof from Lessor;
(c) If any representation or warranty made by Lessee or by any agent or representative
of Lessee herein or in any document or certificate furnished Lessor in connection herewith or
pursuant hereto proves to be incorrect at any time in any material respect;
(d) If Lessee shall dissolve or become insolvent or bankrupt, commit any act of
bankruptcy, make any assignment for the benefit of, or enter into an arrangement or composition
with creditors, suspend or terminate the transaction of its usual business or consent to the
appointment of a trustee or receiver or if a trustee or receiver shall be appointed for Lessee or for
a substantial part of its property, or if bankruptcy, reorganization arrangements or similar
proceedings shall be instituted by or against Lessee;
(e) If any order, judgment or decree shall be entered against Lessee by a court of
competent jurisdiction and such order, judgment or decree shall continue unpaid or unsatisfied
for any period in excess of 60 consecutive days without a stay of execution, or if a writ or order
of attachment, execution or other legal process shall be issued in connection with any action or
proceeding against Lessee or its property whereby any of the Equipment or any substantial part
of Lessee's property may be taken or restrained;
(f) If Lessee shall default in the performance of any obligation or in payment of any
sum due to Lessor under any other lease, contract, agreement, arrangement or understanding;
(g) If any indebtedness of Lessee for borrowed money shall become due and payable
by acceleration of the maturity date thereof; or
(h) If Lessor, in the exercise of reasonable judgment, shall determine that Lessee is
generally not paying its debts as such debts become due. In addition, Lessee shall give Lessor 5
days' written notice prior to the filing of any voluntary petition of bankruptcy, written notice
upon commencement of an involuntary bankruptcy proceeding, or written notice prior to taking
any action with respect to all or any items of the Equipment in bankruptcy proceedings, and shall
include in said written notice the venue of the anticipated proceedings and a copy of any relevant
8
pleadings with respect thereto. Failure to give said written notice within the time as specified
shall constitute an event of default hereunder and shall cause an immediate termination of this
Agreement as to all items of Equipment. Said default and termination, however, shall not
constitute an election of remedies and Lessor shall retain its rights to such other remedies as may
be set forth in this Agreement.
19. Remedies of Default. Upon the occurrence of any event of default and at any time
thereafter, Lessor, acting alone and/or through its agents, may, without any further notice,
exercise one or more of the following remedies as Lessor in its sole discretion shall elect:
(a) Declare the unpaid principal balance plus accrued interest to date through the end
of the then current fiscal year under this Agreement to be immediately due and payable without
notice or demand;
(b) Terminate this Agreement as to any or all items of Equipment;
(c) Without notice, demand, liability or legal process, enter into any premises of or
under control or jurisdiction of Lessee or any agent of Lessee where the leased Equipment may
be, or is believed to be by Lessor, and repossess all or any item thereof, disconnecting and
separating all or so much thereof as may be required to disconnect or separate same from any
other property, Lessee hereby expressly waiving all further rights to possession of the Equipment
and all claims for injuries suffered through or loss caused by such repossession;
(d) Cause Lessee, at Lessee's expense, promptly to return the Equipment to Lessor, at
such place as Lessor may designate, in the condition set forth above;
(e) Use, hold, sell, lease or otherwise dispose of the Equipment or any item thereof on
the premises of Lessee or at any other location without affecting the obligations of Lessee as
provided in this Agreement;
(f) Sell or lease the Equipment or any part thereof, at public auction or by private sale
or lease at such time or times and upon such terms as Lessor may determine, free and clear of
any rights of Lessee, and, if notice thereof is required by law, any notice in writing of any such
sale or lease by Lessor to Lessee not less than 10 days prior to the date thereof shall constitute
reasonable notice thereof;
(g) Proceed by appropriate action either at law or in equity to enforce performance by
Lessee of the applicable covenants of this Agreement or to recover damages for the breach
thereof; or
(h) Exercise any and all rights accruing to Lessor under any applicable law upon a
default by Lessee. In addition, Lessor shall be entitled to recover immediately as liquidated
damages for the loss of a bargain and not as a penalty, a sum equal to the aggregate of the
following:
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(i) All unpaid Payments or other sums which are due and payable through the end
of the then current fiscal year;
(ii) Any expense paid or incurred by Lessor in connection with the collection of
such unpaid Payments and with the repossession, holding, repair and subsequent sale, lease or
other disposition of the Equipment, including attorney's fees and legal expenses, and
(iii) The purchase option price, less the net amount of the recovery, if any, actually
received by Lessor from insurance or otherwise. Additionally, the measure of liquidated damages
as set forth hereinabove shall be applicable to fix the damages accruing for the unexpired portion
of this Agreement Term if this Agreement is not assumed by the Lessee in a bankruptcy
proceeding. Should Lessor, however, estimate its actual damages to exceed the foregoing, Lessor
may, at its option, recover its actual damages in lieu of or in addition thereto.
None of the remedies of Lessor under this Agreement are intended to be exclusive, but
each shall be cumulative and in addition to any other remedy referred to herein or otherwise
available to Lessor at law or in equity. Lessee agrees to pay Lessor all attorneys' fees and all
costs and expenses incurred by Lessor in connection with the enforcement of the terms of this
Agreement or any right or remedy hereunder. Any repossession or subsequent sale or lease by
Lessor of any item of Equipment shall not bar any action for a deficiency as herein provided and
the bringing of an action or the entry of a judgment against Lessee shall not bar Lessor's right to
repossess any or all items of Equipment. Lessee waives any and all rights to notice and to a
judicial hearing with respect to the repossession of the Equipment by Lessor in the event of a
default hereunder by Lessee.
20. Amendments and Addendums. This Agreement may be amended or any of its
terms modified only by written consent of Lessee and Lessor or its assignee.
In the event Lessee desires to buy other equipment, the parties may execute an
addendum to this Agreement with respect to such other equipment by (i) executing a Lease
Schedule for such equipment; (ii) executing an acceptance certificate of the equipment; and (iii)
obtaining new opinions and other supporting documentation as required or permitted by this
Agreement. For purposes of construing subsequent transactions concerning other equipment as
an integrated contract, the following shall be considered a single transaction or legal and binding
agreement:
(a) This Agreement, which provides basic terms and conditions;
(b) An executed Lease Schedule and acceptance certificate; and
(c) Schedules, exhibits, and other attachments to such documents that pertain to the
equipment described in the delivery order, and supporting documentation such as, e.g., opinions
of counsel and insurance certificates.
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21. Notices. All notices to be given under this Agreement shall be made in writing and
mailed by certified mail, return receipt requested, to the other party at its address set forth herein
or at such address as the party may provide in writing from time to time. Any such notice shall
be deemed to have been received five(5) days subsequent to mailing.
22. Section Headings. All section headings contained herein are for convenience of
reference only and are not intended to define or limit the scope of any provisions of this
Agreement.
23. Governing Law. This Agreement shall be governed by the provisions hereof and
by the laws of the State of Arkansas. This Agreement has been issued under the provisions of the
State law of Arkansas governing short-term obligations, specifically, Arkansas Code Annotated
Section 14-78-101, et seq., and Arkansas Constitution, Amendment 78.
If Lessee is a County, Lessee hereby certifies: (1) the purpose of this Agreement is to
acquire, construct, install or rent real property or tangible personal property having an expected
useful life of more than one year; (2) the aggregate principal amount of Lessee's short-term
financing obligations, including obligations incurred under this Agreement, does not exceed
2-1/2% of the assessed value of taxable property located within Lessee's jurisdiction; (3) the total
annual principal and interest payments payable hereunder shall be paid only from general
revenues for the applicable fiscal year; and (4) the Agreement Term shall not exceed 5 years.
If Lessee is a Municipality, Lessee hereby certifies: (1) the purpose of this Agreement
is to acquire, construct, install or rent real property or tangible personal property having an
expected useful life of more than one year; (2) the aggregate principal amount of Lessee's
short-term financing obligations, including obligations incurred under this Agreement; does not
exceed 5% of the assessed value of taxable property located within Lessee's jurisdiction; (3) the
total annual principal and interest payments payable hereunder shall be paid only from general
revenues for the applicable fiscal year; and(4) the Agreement Term shall not exceed 5 years.
If Lessee is a School District, Lessee hereby certifies: (1) this Agreement is entered
into in accordance with the provision of Arkansas Code Annotated Section 6-20-402, (2) the
amount of obligations incurred by Lessee, including its obligations incurred under this
Agreement, are not in excess of Lessee's revenue receipts for the current fiscal year, (3) this
Agreement will be paid within 10 years of its execution, (4) prior to and upon entering into this
Agreement, Lessee is in compliance with all applicable debt limitations, and (5) a copy of this
Agreement has been filed with Lessee's treasurer and with the State board.
24. Delivery of Related Documents. Lessee will execute or provide as required by
Lessor, the following documents and information in form and substance satisfactory to Lessor:
(a) Equipment Acceptance Certificate;
(b) Legal opinion of counsel as described in Section 1 above;
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