Fort Walton Beach Resolution — 2021-04--Lease Purchase Agreement — reading text

9-  Section 14. Risk ofLoss. Lessee shall bear the entire risk of loss, theft, destruction of or damage to the Equipment or any part thereof from any cause whatsoever during the Lease Term of each Lease, and shall not be relieved of the obligation to pay Rental Payments or any other obligation thereunder because of any such occurrence. If (a) the Equipment or any portion thereof under a Lease is destroyed ( in whole or in part) or is damaged by fire or other casualty or b) title to, or the temporary use of, the Equipment or any part thereof under a Lease is taken under the exercise of the power of eminent domain, Lessee shall immediately notify Lessor. Lessee and Lessor shall cause the net proceeds of any insurance claim ( including self-insurance) or condemnation award to be applied, at Lessor' s option, to ( i) the prompt repair, restoration, modification or replacement of the Equipment so affected or ( ii) the payment in full of the then applicable Prepayment Amount pursuant to Section 15 of this Master Agreement. Any balance of net proceeds remaining after completion of such work or payment of such Prepayment Amount shall be paid promptly to Lessee. If the net proceeds are insufficient to pay the costs of such repair, restoration, modification or replacement or to pay such Prepayment Amount in full, Lessee shall, at Lessor' s direction, either complete the work or pay the then applicable Prepayment Amount in full and in either case pay any cost in excess of the amount of net proceeds, but only from legally available funds. If Lessee shall make any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of Rental Payments or any other amounts payable under the related Lease. Section 15. Purchase of Equipment By Lessee; Prepayment. At the option of Lessee, and provided that no Event of Default has occurred and is continuing under a Lease, Lessor' s interest in all, but not less than all, of the Equipment subject to a Lease will be transferred, conveyed and assigned to Lessee, and such Lease shall terminate: ( a) upon payment in full of the Rental Payments under such Lease and all other payments then due thereunder or (b) on any Rental Payment due date under such Lease on or after the Optional Prepayment Commencement Date identified in the Equipment Schedule for such Lease, provided Lessee shall have delivered written notice at least 30 days prior to such date of Lessee' s intention to purchase the Equipment subject to such Lease pursuant to this provision, by paying to Lessor, in addition to the Rental Payment due on such date, an amount equal to the Prepayment Amount shown for such Rental Payment due date in the Rental Payment Schedule included in the Equipment Schedule for the applicable Lease. Other than as provided in Section 14(ii) hereof, Lessee shall not have the option to purchase the Equipment under a Lease as provided in the foregoing clause( b) on any Rental Payment due date under such Lease prior to the Optional Prepayment Commencement Date identified in the Equipment Schedule. As used herein, " Prepayment Amount" with respect column titled " Prepayment to any Lease shall mean the amount identified as such under the Amount" in the Rental Payment Schedule included in the Equipment Schedule for the affected Lease for the Rental Payment due date on which any prepayment of such Lease is to occur as herein provided. Section 16. General Indemnity. To the fullest extent authorized by State law, including without limitation) the provisions of Section 768.28, Florida Statutes, as amended, Lessee shall indemnify, defend and hold harmless Lessor, its affiliates and each of their respective directors, officers, agents, representatives and employees, from and against any and all liability, obligation, loss, claim, tax and damage whatsoever, regardless of cause thereof, and all expenses in 10- connection therewith ( including, without limitation, attorneys' fees and expenses and court cost and expense) arising out of or as a result of( a) entering into this Master Agreement or any Lease orany of the transactions contemplated hereby or thereby, ( b) the ownership of any item of Equipment, ( c) the ordering, acquisition, use, operation, condition, purchase, delivery, rejection, storage or return of any item of Equipment, ( d) any accident in connection with the operation, use, condition, possession, storage or return of any item of Equipment resulting in damage to property or injury or death to any person and/or ( e) the breach of any covenant of Lessee or any material misrepresentation of Lessee contained in this Master Agreement or a Lease. The indemnification and obligations herein provided shall be payable solely from funds legally available for such purpose and shall continue in full force and effect notwithstanding the expiration, termination or cancellation of this Master Agreement or any Lease for any reason whatsoever. Tax Covenants Representations of Lessee; Tax Indemnity. Lessee Section 17. and agrees that it will not take any action that would cause the interest component of Rental Payments under any Lease to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for federal income tax purposes, nor will it omit to take or cause to be taken, in a timely manner, any action which omission would cause the interest component of Rental Payments under any Lease to be or to become ineligible for the exclusion from gross the thereof for federal income tax purposes. Lessee agrees to income of owner or owners a) execute and deliver to Lessor with respect to each Lease, upon Lessor' s request, a tax certificate and agreement in form and content acceptable to Lessor and Lessee, relating to the establishment and maintenance of the excludability from gross income of the interest component of Rental Payments under such Lease for federal income tax purposes; ( b) complete, execute and file in a timely manner an information reporting return with respect to each Lease as required by the Internal Revenue Code of 1986, as amended ( the " Code"); ( c) rebate an amount equal to excess earnings on any escrow or other fund under any Escrow Agreement to the federal government if required by, and in accordance with, Section 148( f) of the Code, and make the determinations and maintain the records required by the Code; ( d) so long as any Rental Payments under a Lease remain unpaid, moneys on deposit in any escrow or other fund under any Escrow Agreement related to such Lease will not be used in a manner that will cause such Lease to be classified as an " arbitrage bond" within the meaning of Section 148( a) of the Code; and ( e) keep, or cause to be kept, during the Lease Term for each Lease a complete and accurate record of all assignments, transfers or conveyances with respect to such Lease ( or interests therein) in form necessary to comply with Section 149 of the Code. Lessee represents to Lessor on the date of execution and delivery of this Master Agreement and on the date of execution and delivery of each Lease pursuant hereto that i) Lessee has a substantial amount of the independent power to tax, the power of eminent domain or police power under applicable State law; ( ii) neither Lessee nor any agency or unit of Lessee has on hand any property, including cash and securities, that is legally required or otherwise restricted ( no matter where held or the source thereof) to be used directly or indirectly to purchase the Equipment under the related Lease; ( iii) Lessee has not and will not establish any funds or accounts ( no matter where held or the source thereof) the use of which is legally required or otherwise restricted to pay directly or indirectly Rental Payments under a Lease; iv) Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein 11- prior to the conclusion of the Scheduled Term of the related Lease; ( v) the payment of the Rental Payments or any portion thereof under each Lease is not ( under the terms of this Master Agreement or any Lease) directly or indirectly (A) secured by any interest in property used or to be used in any activity carried on by any person other than a state or local governmental unit or payments in respect of such property or ( B) on a present value basis, derived from payments whether or not to Lessee) in respect of property, or borrowed money, used or to be used in any carried on by any person other than a state or local governmental unit; ( vi) the activity Equipment will not be used, directly or indirectly, in any activity carried on by any person other than a state or local government unit; ( vii) no portion of the purchase price for the Equipment will be used, directly or indirectly, to make or finance loans to any person other than Lessee; viii) Lessee has not entered into any management or other service contract with respect to the use and operation of the Equipment; ( ix) Lessee has entered into, or will enter into, each Lease for the purpose of purchasing, acquiring and leasing the Equipment and not for the purpose of refinancing any outstanding obligation of Lessee more than 90 days in advance of its payment or prepayment date; and ( x) the purchase price for the Equipment has been or will be paid directly by Lessor to the supplier thereof, and no portion of the purchase price for the Equipment has been or will be paid to Lessee as reimbursement for any expenditure paid by Lessee more than 60 days prior to the execution and delivery of the applicable Lease. If Lessee takes any action or fails to take any action ( including, without limitation, in this Section 17 as provided in a Lease), or makes any breaching any covenant contained misrepresentation herein or in any certificate or document required to be given in connection with this Master Agreement or any Lease, in any case which causes or results in the interest component of Rental Payments under such Lease to be or become includible in gross income of the owner or owners thereof for federal income tax purposes, Lessee agrees to pay promptly after any such determination of taxability and on each Rental Payment due date thereafter to Lessor an additional amount determined by Lessor to compensate such owner or owners 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). It is Lessor' s and Lessee' s intention that each Lease not constitute a " true" lease for federal income tax purposes and therefore, it is Lessor' s and Lessee' s intention that Lessee be considered the owner of the Equipment under each Lease for federal income tax purposes. Section 18. Personal Property. The Equipment shall be and remain personal property