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

under each Lease as may lawfully be made from.funds budgeted and appropriated for that:purpose during Lessee' s then current fiscal year. Should Lesse~ fail to budget; appropriate or otherwise. make available funds to pay Rental Payments under ~ y Lease following the then current Original Tenn or Renewal Tenn, such Lease or Leases shall be deemed tenninated at the end of the then current Original Terin or Renewal Tenn. Lessee agrees to deliver nqtice t.o Lessor of such tennination at least 90 days prior to the end of the then current Original Term or Renewal TeIlil, but failure to give such n9tice shall not extend the tenn beyond such Original Tenn or Renewal Tenn. If any Lease is tenninated in accordance with this Section, 'Lessee agrees to peaceably deliver the 004.237866. 4 7- . 01/ 02/ 2008 Page 15/ 44  Equipment to Lessor at the location( s) in the State to be specified by Lessor. Section 3. 04. Substitution. Lessee reserves the right to substitute Equipment oft~e same. quantity.and general tyPe with the approximate equal value, utility and remaining . useful life as the Equipment replaced.. so Such substitution is subject to Lessor' s prior written consent, which consent shall not be unreasonably withhe~d, and shall be reflected in an amendment to the appropriate Schedule. Section 3. 05. Conditions to Lessor' s Performance Under Any Lease. a) As a prerequisite to the perfonnance by Lessor of any of its obligations pursuant 4 to any.Lease, Lessee shall deliver to Lessor the following: i) A.fully comp.let~d Schedule, executed by Lessee; ii) , An Acquisition Fund Agreement, executed by Lessee and the Acquisition Fu~ d Custodian, unles~ Lessor.pays 100% ofllie.Acquisition Amount directly to the Vendor (or to the Lessee in reimbursement for payments to the Vendor) upon execution of the Lease; . iii) A Certificate executed by the Clerk or Secretary o~ other comparable officer of Lessee, in substantially the form attached hereto as Exhibit C, completed to the satisfaction of Lessor. : iv) A certified copy of a resolution or other official"action of~ essee) s c governing body authorizing the execution and delivery of the Lease and p~rformance by Lessee of it~obligations ~hereunder. v) An opimon of counsel to Lessee in substantially the fonn attached hereto as Exhibit D respecting such Lease and otherwise satisfactc?ry to Lessor, with the opinion in paragraph 6 to b,f? provided by outside counsel to' Lessee; provided~ however, that if the Acquisition Amount for a particular Lease is $ 1, 000, 000 or less, the opinion in paragraph 6 of Exhibit D may be provided by internal counsel to Lessee~ vi) An executed Essen~ial Use/ Source ofF1.inds Certificate in substantially the fonn attached hereto as Exhibit EO. vii) Evidence of insurance as required by Section 7. 02 hereof. viii) All other closmg documents reasonably required by Lessor,.including certific.ates, notices and similar instruments., in form satisfactory to Lessor. ' ix) A.copy of a fully completed and executed Fonn 8038- G or Fonn 8038- GC. 0 b) In addition, the perfonnanc'e by' Lessor of any of its. obligations pursuant to any / Lease shall be subject to ( i) no material adverse change in the financial condition of Lessee since the date of this Agreement, ( ii) no Event of Default having occurred, ( iii) no event of c_ non- appropriation with respect to ~ y Lease under this Agreement shall have' occurred and 004. 237866.4 . 8- 01/ 02/ 2008 Page 16/ 44  I · iv) ifno Acquisition Fund has been established, the Equipment must be accepted by Lessee no later than the fundi~ g date. This Agreement is not a commitinent by Lessor to enter into any Lease no~ c) in currently existence,. and nothing in this Agreement shall be construed to impose any obligation upon ~ essor to enter into any proposed Lease, it being un~erstood that whether Lessor enters into any proposed Lease shall b~ a decision.solely within Lessor' s discretion.. Cd) Subject to satisfaction of the foregoing; Lessor will pay the Acquisition Amount for Equipment described in a Schedule to the V endor (or to reimburse the Lessee for payments to the Vendor) upon receipt of the documents described in Section 5. 01; or if an AcquistoJ1; Fund has been established pursuant to an Acquisition Fund Agre'ement, Lessor will ie<: posit the Acquisition Amount for Equipment described in the Schedule with the Acquisition Fund <;:ustodian. .' Lessee will c09perate with Lessor ~n Lessor' s review of any prop'osed Lease. e) Without limiting the foregoing,.Lessee will provide Lessor with any documentation or infonnation Lessor may request in connection with Lessor' s review of any proposed Lease. Such documentation may include, without limitation, documentation concerning the Equipment and its cont~mplated use and location 'and docUmentation or information concerning the financial status of Lessee and other matters related to Lessee. ARTICLEN. Section 4.01. Rental Payments. Subject to Section 3. 03, Lessee shall promptly pay c Rental Payments, in lawful money of the United States of America, to Lessor on the dates and in s~ ch amounts as provided in each Lease. Lessee shall pay Lessor a charge .on any Rental Payment not paid on the date such payment is due at the,rate.of 16% per annum or the maximum amount . peimitted by law, whichever is less, from such date. Rental Payments consist of principal and interestpayments as mQre fully detailed on each Schedule, the interest on which begins to accme as of the Commencement Date for each such Schedule. Rental Payments shall be calculated based on a 360- day year of twelve 30- day months. Section 4~02. Interest and Principal Components. A portion of each Renta~Payment is paid as, and represents payment of, interest, and the balance of each Rental Payment is.paid as, and represents payme~t of; principal. Each Lease shall set forth the principal and interest components of each Rental Payment payable thereunder during the Lease Tenn. . Section 4. 03: Rental Payments to Constitute a Current Expense ofLessee. Lessor and Lessee understand and intend that the obligation of Lessee to pay.Rental Payments under each Lease shall. constitu~e a c~ ent expense of Lessee payable solely from its general. fund or other funds that are legally available fqr that p~ ose and shall not in any way be con~trued to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee. THE RENTAL PAYMENTS ARE TO BE MADE ONLY FROM THE LESSEE' S LEGALLY 1\ V AILABLE REVENUES APPROPRIATED 9~ AN ~ AL B'ASIS~AND N~ ITHER THE LESSEE, ,THE STATE; NOR ANY POLITICAL S.UBDNISION OR AGENCY' THE~ OF SHALL BE OBLIGATED TO PAY ANY' SUMS DUE UNDER A LEASE F~ OM THE COW> ELLED' LEVY .OF AD VALOREM OR OTHER TAXES. EXCEPT FROM THOSE LEGALLY AVAILABLE REVENUES APPROPRM-TED BY.THE LES~ EE ON AN ANNUAL BASIS, AND NE~THER THE FULL.FAITH ~~ ~ 004. 237866.4 9- 01/ 02/ 2008 Page 17/ 44  1· I CREDIT NOR THE TAXING POWER OF THE LESSEE, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF ARE-PLEDGED FOR PAYMENT OF SUCH SUMS DUE UNDER A LEASE. Section 4. 04. Rental Payments to be-Uncondition-al. Except as provided in Section 3. 02 and Section 3. 03, the obligations of Lessee to inak~ Rental Payments and to perfo~ and observe the other covenants and agreements contained' in each Lease shall be absolute and unconditional in all events without abatement, diminution, deduction, set- off or defense, for any reason, including without limitation any failure of the Equipment, after it has been accepted by Lessee, any defects, malfunctions, breakdowns or iniinnities in the equipment or any accident, condeinnation or unforeseen circumstances. SectiDn 4. 05. , Tax Covenant. Lessee agrees that it will not take, or fail to take in a timely. manner, any actioD that would cause the interest component of Rental Payments to be or to become .