Fort Walton Beach Resolution — 2008-02-Golf Club Equipment-Bank of America — reading text

all claims? liabilities, losses, actions, suits or proceedings at law 'or in equity, or any other expense, fees or charges of any character or nature, which it may incur or with which it may be threatened by reason of its acting as n,therewith, does to the extent Acquisition Fund Custodian under this agreement; and in connecti<? permitted by law indemnify the Acquisition Fund Custodian against any and all expenses, including reasonable attorneys' fees and the cost of defending any action, suit or proceeding or resisting any claim. h) If the Lessee and the Lessor shall be in disagreement about the interpretation of the Lease, or ~bout the rights and obligations, or the pr~priety of any action contemplated by the Acquisition Fund Custodian hereunder, the Acquisition Fund Custodian may, but shall not be required to, file an appropriate civil action to resolve the disagreement. The Acquisition Fund Custodian shall be reimbursed by the Lessee for all costs, including reasonable attorneys' fees, in connection with such civil action, and sh~ll be fully protect~d in' suspending all or part of its activities under the Lease until ~ final judgment in such action is received. i) The Acquisition Fund Custodian may consult with counsel of its own choice and shall have full and complete authorization and protection with the opinion of such counsel. The Acquisition Fund Custodian 'shall otherwise not be liable for any mistakes of fact or errors of judgment, or ~or any acts or omissions of any kind unless caused by its willful misconduct. j) The Lessee shall reimburse the Acquisition Fund Custodian for all reasonable costs and expenses, including those of the Acquisition Fund Custodian' s a~tomeys, agents and employees incurred for extraordinary administration of the Acquisition Fund and the performance of 2 004. 217182. 2  e . t the Acquisition Fund' Custodian' s powers and duties hereunder in connection with any Event of Default under the Lease, or in cOIll1ection with any dispute between Lessor and Lessee concerning. the Acquisition Fund. 2. Acquisition of Propertv. Acquisition Contracts. The ~ essee will arrange fOT, supervise and' provide for, or a) cause to be ~up'ervised and provided for, the acquisition of the Equipment set forth in the Schedule to the Lease, with moneys available in the Acquisition Fund. The Lessee represents the estimated. costs of the Equipment are within the funds estimated to be available therefor, and the Lessor makes no warranty or representation with respect thereto. The Lessor shall have no' liability under any of the acquisitioJ?or construction contracts. The Lesse~ shall obtain all necessary p~rmits and . approvals, if any, for the acquisition, equipping and installation of the Equipment, and th~ operation and maintenance thereof. b) Authorized ACCluisit~on Fund Disbursements. Disbursements from the Acquisition Fund shall be made for the purpose of paying ( including the reimbursement to the Lessee for advances from its own funds to accomplish the purposes hereinafter ~ escribed) the cost of acquiring the Equipment.. . Requisition Procedure. No disbursement from the AcquisitioJ?Fund shall be made c) unless and until the Lessor has approved such requisition. Prior to disbursement from the Acquisiti?n Fund there ~hall be filed with the Acquisition Fund Custodian a requisition for such payment in the form of Disbursement Request attached hereto, stating each amount to be paid and, the name of the person, firm or corporation to whom payment thereof is due. Each such requisition shall be signed by a~ ' authorized representative of the Lessee ( an " Authorized Representative") and by Lessor,' and shall be subj ect to the following: i) Delivery to Lessor of a certificate of the Lessee to the effect that: A) An obligation in the stated a~ ount has been incurred by the Lessee, and that the same is a proper charge against the Acquisit~on Fund for costs relating to the Equipment identified in the Lease, and has not been paid; B) The Authorized 'Representative has no notice of any vendor' s, mechanic' s or other liens or rights to liens, chattel mortgages, conditional sales contracts or security interest which should be satisfied or discharged before such payment is made; C) Such requisition contains no item representing payment on account, or any retained percentages which the Lessee is, at the date of such certificate, entitled to retain; and D) The Equipment is insured in accordance with the Lease. ii) .Delivery to Lessor of an Acceptance Certificate in the form attache4 as Exhibit B to the Lease, ~ xecuted by Lessee, together with any purchase agreement or bill of sale and invoice therefor as required by Section 5. 01 of the Lease; 3 004. 217182. 2  iii) ' The disbursement shall occur during the Acquisition Period set forth in the Schedule applicable to .such Equipment; iv) There shall exist no Event of Default ( nor any event which, with notice or lapse of time or both, would become an Event of Default); v) No material adverse change in Lessee' s or any guarantor' s financial condition shall have occurred since the ~late of the Lease; and 3.Deposit to Acquisition Fund. Upon satisfaction of the conditions specified in Section 3. 05 of the Lease, Lessor will cause the Lease Proceeds to be deposited in the Acquisition Fund. The Lessee-agrees to pay any costs with respect to the Equipment in excess of amounts available therefor in the Acquisition Fund. 4. Excessive Acquisition 'Fund. Following the final disbursement from the Acquisition Fund at the end of the Acquisition Period, or termination of the' Acquisition Fund as otherwise provided herein, the Acquisition Fund Custodian shall transfer any remainder from the Acquisition Fund to the Lessor for application to amounts owed under the Lease in acc.ordance with Section 4. 07 of the Lease. 5. wise defined herein shall have the meanings Miscellaneous. Capitalize~ terms not other_ assigned to them in the Lease. This agreement may not be amended except in writing signed by all parties hereto. This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument and each shall have the force and effect of an original and all of which together constitute, and shall be deemed to constitute, one and the same instrument. Notices hereunder shall be made i1;1 writing and shall be deemed to have been duly given when personally delivered ot when deposited in the mail, first class postage prepaid, or delivered to an express carrier, charges prepaid, or sent by facsimile with electronic confirmation, addressed to each party at its address: below: . If to the Lessor: Banc of America Public Capital Corp 2059 NortWake 'Parkway 4th floor Tucker, GA 30084 . Attn: Laura Pritchett Phone: ( 770) 270- 8448 Fax: ( 770) 270- 8454 If to the Lessee: City. of Fort Walton Beach 107 Mircale Strip Parkway' S. W . Fort Walton Beach, FL 32548 Attn: Lisa Absher Pho~ e:' ( 850) 833- 9513 Fax: ( 850) 833- 9640 4 004. 217182. 2  If to the Acquisition Fund Custodian: Bank of America, N .A. 100 W. Garderi Street Pensacola, FL 32502 Attn: Keith Thompson Phone: ( 850) 444- 7348 Fax: ( 850) 444- 0450 IN WITNESS WHEREOF, the parties have executed this Acquisition Fund Agreement as of the date first above written. Bane of America Public Capital Corp City of Fort Walton Bea~h By: .~~ tI~^>>-- By: . N~ e: L Ce 6hCU'Jdr~ Name: laur....Pr:.'./. i . U~"'l1. f:~'!! TItle: rh fYL,.~~' ' v J Title: Ass1~ r;:,;.'q \! .~CI.:: i:} Y? cstdGnt Bank of America, as Acquisition Fund Cu~todian By: Name: Title: 004. 217182. 2 5  If to the Acquisition Fund Custodian: Bank of Americ~, N.A~ 100 W. Garden Street Pensacola, FL 32502 Attn: Keith Thompson Phone: ( 850) 444- 7348 Fax: ( 850) 444- 0450 IN WITNESS WHEREOF, the parties have executed this Acquisition Fund Agreement as of the date first above written. Banc of America Public Capital Corp City of Fort Walton Beach By: By: Name: Name: Titl e: Title: B.y: Name: Title: 004. 217182. 2