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

the manner in which it may be attached or affixed to realty. Section 19. notwithstanding Default. Each of the following shall constitute an event of default ( each, an " Event ofDefault") with respect to a Lease: ( a) Lessee fails to pay in full the Rental Payment due under such Lease within ten ( 10) days after the date such Rental Payment is due; ( b) Lessee fails to obtain and maintain the insurance required under such Lease; ( c) Lessee fails to perform or observe any other covenant, condition, term or agreement to be performed or observed by it under any Lease and such failure shall continue unremedied for a period of thirty ( 30) days after written notice thereof to Lessee by Lessor; ( d) Lessee institutes any proceedings under any bankruptcy, insolvency, reorganization or similar law or a receiver or similar officer is appointed for Lessee or e) any certificate, statement, representation or warranty contained in such any of its property; ( Lease or furnished with respect to such Lease or the Equipment by Lessee proves to have been 12- false in any material respect at the time it was made; ( f) actual or attempted sale, lease or encumbrance of any of the Equipment under such Lease or the making of any levy, seizure or attachment thereof or thereon. The occurrence of an Event of Default with respect to any Lease shall, at the sole discretion of Lessor, constitute an Event of Default with respect to each other Lease. Section 20. Remedies; Attorneys' Fees. Whenever any Event of Default exists under a Lease, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps: ( a) by written notice to Lessee, Lessor may declare all Rental Payments payable by Lessee pursuant to such Lease to the end of the then current fiscal year to be immediately due and payable; ( b) by written notice to Lessee, Lessor may terminate such Lease and request that Lessee promptly transfer title and deliver the Equipment under such Lease to Lessor; ( c) if Lessee returns Equipment to Lessor under clause ( b) of this paragraph, Lessor agrees to use commercially reasonable efforts to dispose of such Equipment; provided, however, that any proceeds from the disposition of such Equipment in excess of the sum required to pay ( i) any amounts then due under the affected Lease and the principal portion of Rental Payments scheduled to come due under such Lease and ( ii) Lessor' s costs and expenses associated with the disposition of such Equipment, shall be paid to Lessee or such other creditor of Lessee as may be entitled thereto; ( d) upon termination of a Lease by Lessor pursuant to clause ( b) of this paragraph, Lessor shall have the right to sue for compensatory damages, including upon failure of Lessee to transfer title to, and deliver possession of, the Equipment under such Lease to Lessor; and ( e) subject to the provisions of each Lease that restrict Lessor' s right to involuntarily dispossess Lessee of the Equipment, Lessor may take whatever action at law or in equity may appear necessary or desirable to enforce its rights under such Lease. If the Equipment delivered to Lessor pursuant to this Section 20 is damaged or otherwise made less suitable for the purposes for which it was manufactured than when delivered to Lessee, Lessee agrees, at its option, to ( a) repair and restore the Equipment to the same condition in which it was received by Lessee ( reasonable wear and tear excepted) or (b) pay to Lessor the reasonable costs of such repair and restoration, but only from funds legally available and appropriated for that purpose. All rights and remedies of Lessor shall be cumulative and not alternative. Lessor' s failure to exercise or delay in exercising any right or remedy shall not be construed as a waiver thereof, nor shall a waiver on one occasion be construed to bar the exercise of any right or remedy on a future occasion. Lessee agrees to reimburse Lessor for any expenses reasonably incurred by Lessor with respect to the enforcement of any of the remedies listed above or any other remedy available to Lessor, but only from funds legally available and appropriated for such purpose. Nothing in this Section 20 is intended, or shall be construed, to create a right in Lessor to involuntarily dispossess Lessee of the legal title to or the use and possession of the Equipment under a Lease. Lessor hereby irrevocably waives any right to specific performance of any covenant of Lessee to transfer title to and return possession of the Equipment under a Lease. 13-  Section 21. Assignment; Subleasing. Without the prior written consent of Lessor, which consent may be withheld, conditioned or delayed, in the sole discretion of Lessor, LESSEE SHALL NOT ASSIGN, PLEDGE, MORTGAGE, SUBLET OR OTHERWISE TRANSFER OR ENCUMBER ANY OF ITS RIGHTS UNDER THIS MASTER AGREEMENT, ANY LEASE, ANY ESCROW AGREEMENT( INCLUDING THE ESCROW FUND CREATED THEREUNDER) OR IN THE EQUIPMENT OR ANY PART THEREOF, NOR PERMIT ITS USE BY ANYONE OTHER THAN LESSEE AND ITS REGULAR EMPLOYEES. ANY SUCH PURPORTED TRANSFER, ASSIGNMENT OR OTHER ACTION WITHOUT LESSOR' S PRIOR WRITTEN CONSENT SHALL BE VOID. No assignment or sublease shall relieve Lessee of its obligations under a Lease and Lessee shall remain primarily liable thereunder. Lessor may, at any time and from time to time, assign, transfer or otherwise convey any part or all of its rights and interests in the Equipment and in, to and under this Master Agreement, any Escrow Agreement ( including the Escrow Fund created thereunder) and one or more Leases, including, but not limited to, Lessor' s rights to receive the Rental Payments under a Lease or any part thereof( in which event Lessee agrees to make all Rental Payments thereafter to the assignee designated by Lessor) without the necessity of obtaining Lessee' s consent. No such assignment, transfer or conveyance shall be effective until Lessee shall have received a written notice of assignment that discloses the name and address of each such assignee. Lessee agrees, if so requested, to acknowledge each such assignment, transfer or conveyance in writing within 10 days after request therefor by acknowledgment in form and substance satisfactory to Lessor. In the event of any such assignment by Lessor, the right of the assignee to receive Rental Payments and other amounts payable under the affected Lease or Leases as well as any other right of the assignee shall not be subject to any defense, set-off or counterclaim which Lessee may have against Lessor or any other party. Subject to the foregoing, this Master Agreement and each Lease inures to the benefit of, and is binding upon, the successors and assigns of the parties. Section 22. Lessor' s Right to Perform for Lessee. If Lessee fails to perform, observe or comply with any of its obligations under a Lease, Lessor shall have the right, but shall not be obligated, to effect such performance, and the amount of any reasonable expenses of Lessor incurred in connection with such performance, together with interest thereon at twelve percent 12%) per annum or the highest rate permitted by applicable law, whichever is less, shall be payable by Lessee upon demand. Section 23. Notice.All notices ( excluding billings and communications in the ordinary course of business) under this Master Agreement and each Lease shall be in writing, personally delivered, delivered by overnight courier service, sent by e-mail transmission (with confirmation of receipt) or sent by certified mail, return receipt requested, addressed to the other party at its respective address stated below the signature of such party or at such other address as the party to receive such notice shall hereafter designate from time to time in writing to the other party, and shall be effective upon receipt. Return of Equipment. Upon Section 24. Title to Equipment; No Security Interest; Lessee' s acceptance of any Equipment under a Lease, title to such Equipment shall vest in Lessee, subject to Lessor' s rights under such Lease; provided, however, that Lessor shall have no security interest therein. Notwithstanding the obligations of Lessee to pay Rental Payments under a Lease, no Lease shall result in the creation of any lien, charge, security interest or other encumbrance 14- upon the Equipment, and Lessor shall have no right to involuntarily dispossess Lessee of the use and enjoyment of or title to the Equipment. Lessee hereby acknowledges and agrees that Lessor shall be entitled to the benefit of the cash and negotiable instruments from time to time comprising each Escrow Fund and all proceeds ( cash and non- cash) thereof, subject to the terms and conditions provided in the related Escrow Agreement. Section 25. Miscellaneous. To the extent that any Lease would constitute " chattel paper" as such term is used in the Uniform Commercial Code, no security interest may be created or perfected through a transfer or possession of a Lease without the transfer or possession of the original of the Equipment Schedule executed pursuant to this Master Agreement and incorporating this Master Agreement by reference. LESSEE UNDERSTANDS AND AGREES THAT NEITHER THE SUPPLIER NOR ANY SALES PERSON OR AGENT OF THE SUPPLIER IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF ANY LEASE, AND NO REPRESENTATIONS BY THE SUPPLIER AS TO THE EQUIPMENT OR ANY OTHER MATTER SHALL IN ANY WAY AFFECT LESSEE' S DUTY TO PAY RENTAL PAYMENTS AND OTHERWISE PERFORM ITS OBLIGATIONS UNDER ANY LEASE. Any provision of a Lease which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The representations, warranties and covenants of Lessee herein shall be deemed to be continuing and to survive the closing of each Lease. Each execution by Lessee of a Lease shall be deemed a reaffirmation that there shall have been no material adverse change in the operations or financial condition of Lessee from the date of this Master Agreement. The obligations of Lessee under Sections 12, 16 and 17 of this Master Agreement which accrue during the Lease Term of a Lease shall survive the termination of such Lease. Lessor and Lessee do not intend to contract for, charge or receive any interest or other charge which is usurious. If Lessor or any other holder shall ever receive as interest an amount which exceeds the maximum amount of interest permitted by law, such excess amount shall be applied to the reduction of any principal amount owing under the affected Lease or refunded to Lessee and all sums paid or agreed to be paid to Lessor for the use, forbearance or detention of the obligations of Lessee shall, to the extent permitted by law, be amortized, allocated, prorated and spread