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

ineli~ ble for the exclusion from gross income of the owner or owners thereof for fed-eral income tax purposes, including, without limitation, the~calculation and payment of any rebate required to preserve such exclusion. Subject to Les.se~' s right to tennin-ate, the Lease as.provided herein, the foregoing covenan~shall remain' in effect untilthe-date on.which al~ obligations of Lessee in fulfilling the above covenant under the Code have been:met. Section 4. 06. Event o/ Taxability. Upon the occurrence of an Event of Taxability, the interest component shall be-at a taxable rate retroactive to the date as of which the interest component IS deterinined by the Internal Revenue S.ervic~ to -be .includible in the gross income-of the owner or owners thereof for federal income.tax purposes, and Lessee will pay such ad4itional C'. amount as will result in the oWner receiving the interest component at the taxable rate' identified in the related Lease. Lessee will als9 pay any penalties and interest charged to Lessor by the Internal Revenue Service in connection with an Event of Taxability. For purposes of this section, " Event of Taxability" means a detennination that the interest component is includible for federal income tax purposes in the gross income of the owner thereof due to Lessee' s action or failure to take any action. Section 4. 07. Mandatory Prepayment. IfJhe Lease Procee4s are deposited in~o' an Acquisition Fund, any funds remaining in the Acquisition FUnd o~ or after the Acquisition Period and not applied to Equipment Costs, shall be applied by Les.sor on the next Rental Payment date, pro rata to the prepayment of the principal component of the, outstanding Rental Payments due _ under the applicable Schedule. Section 4. 08. Annual Fees to Spo.nsor. Lessee agrees to-pay the Sponsor an annual fee of 1.0 basis points of the outstanding loan amount for providing the lease purchase program represented by this Agreement. The fee payable to the Sponsor may be financed as part of a Lease or paid as an up- front payment . based on the present value of the total fee for the life of the Lease. - . The fee amount will be _ remitted by Lessee to Lessor and Lessor shall provide all funds so collected to the Sponsor within _ 30 days after receiving such fUJ.1ds from the Lessee.NotWithstanding anything herein to the contrary, Lessor shall not in any event be-responsible for the payment of any fees payable to the Sponsor by Lessee exc'ept to the extent Lessor has. collected such fees ITom Lessee; and Lessor shall be required only to use its reasonable best efforts-to cause the Lessee to pay such fees to Lessor on' behalf of the Sponsor. - 10-. 094. 237866. 4 01/ 02/ 2008 Page 1si44  0. I ' ARTICLE V. Section 5. 01. Delivery, Installat~~n and Acceptance ofEquipment. a) Lessee shall order the Equipment; cause the Equipment to be delivered and' installed at the location specified in the Leases, and pay any and all de~ivery and installation costs and other Equipment Costs in conne~tion therewith. When the Equipment listed in any Lease has been delivered and installed, Lessee shall promptly accept such Equipment and evidence said acceptance by executing and delivering to Lessor an acceptance certificate in , the fonn a~tached hereto as Exhibit B ( the " Acceptance Certificate")~ b) Lessee shall deliver ~o Lessor,original invoices and bills of sale ( if title to such Equipment has passed to Lessee) relating to each item of Equipment accepted by Lessee. With respect to Equipment not purchased thrpugh an Acquisition Fund, Lessor shall, upon receipt ,of an Acceptance Certificate from Lessee,. prepare a Sched1il~ ofP~operty and a Rental Payment Schedule. Lessee shall execute and deliver such Schedules to Lessor within 5 business. days of receipt.. . Section. 5. 02. Enjoyment of Equipment. Lessor shall provide Lessee with quiet use and enjoyment of the Equipm~nt.during the Lease Term, and Lessee' shallpeaceably and quietly have, hold and enjoy the Equipment during the Lease' Tenn, without suit, trouble or hindrance from Lessor, except as otherwise expressly set forth in th~ related Lease. Lessor shall not interfere with u~h q'\liet use and ynjoyment.during the Lease Tenn so..long as Lessee is not in default under the related Lease. Section 5. 03. Location and Inspection of the Equipment. Onee installed, Lessee will not move any item of the Equipment from the location specified for it in'the Lease on which such item is listed without Lessor' s consent, whicb consent shall not be withheld. Lessor shalt unreasonably have the right at all reasonable tjmes during regul~ business hours to enter into and upon~the property of Lessee for the purpose of inspecting the Equipment. Lessee shall promptly provide any fo~ ation.about the Equip~ ent or ~ Lease that may be ~ easonably reque~ted by Lessor. Section 5. 04. Use and Maintenance of the Equipment. Lessee will not instalJ, use, or maintain the operate, Equipment improperly, carelessly, in violation of any applicable law or in a manner contrary to that cont~ mplated by the related Lease. Lessee shall provide all pennits and licenses, if any, necessary for the' installation and operation of the Equipment. In addition, Lessee agrees to comply in' all respects with all applicable laws, regulations and rulings of any legislative, executive; administrative, or judicial body; provided that Lessee may contest in good faith the validity or application of any such laV(,regulation or ruling in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest ( in~luding the interest) of Lessor reversionary in ~ d to the Equipment or its interest or rights under the-Lease.. 004. 237866.4 11- 01/ 02/ 2008 Page 19/ 44  Lessee agrees that it will maintain, pi~serve, and keep the Equipment in good repair and c working.order) in accordance with ri1an~ facturer' s recommendations~ Lessor shall have no responsibility to maintain, repair or make improvements or additions to ~he Equipment. If commercially available, Lessee will maintain.in force a standard mainten"ance contIact with the manufacturer of the Equipment, and upon request will provide Lessor with a copy of that contract~ Upon the prior written consent of Lessor, which consent shall not be unreason.ably withheld, Lessee may use anot4.er third party maintenance provider provided the maintenance contract between Lessee and such third party requires the third party to maintain the Equipment at the manufacturer' s then cunent release, revision and engineering change levels, including hardware: software ' enhancements and microcode levels. In all cases, Lessee. agrees to pay any costs necessary for the manufacturer to re- certify the Equipment as eligible for manufactUrer' s maintenance upon the retUrn of the Equipment to Lessor as provided for herein. Lessee shall not alter any item of Equipment or install accessory, equipment or device an}!. o~ an item of Equipment if that would impair any applicable warranty, the originally intended fimction or the' value of that Equipment. All repairs, parts, accessones, equipment and devices furnished, affixed to or installed on any Equipment, excluding temporary replacements,:"' shall thereupon become subject to the interest of Lessor. ARTICLE VI. Section 6. 0/. Title to the Equipment. During each Leasy' Term, and so long as the Lessee is not in default under Articl~ xn hereof, all . right, title and.interest in.and to each item of the.. .: . ~ Equipment shall be vested in Lessee immediately upon its acceptance of each item of Equipment, c subJect to the terms and conditions of the applicable tease. Lessee shall at ail times protect and . defend, at its own cost and expense, its title in and to the Equipment from and against all claims, liens and legal processes of its creditors, and keep all Equipment free and clear of all such claims, liens anct processes. Upon the occurrence of an Event of Defaulf or.upon 1:ermination of a I; ease. .. pursuant to Section 3. 03 hereof: full $ d unencumbered Ie.gal title to the Equipment shall p.ass to Lessor, and, Lessee shall have no further interest.therein except -as provided in