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

after purchasing such EquiPment and such other Equipment shall be retained by Lessee. If Lessee sha~l make any payments pursu~ t to this Lessee shall not be entitled to any reimbursement Section,' therefor from Lessor nor shall Lessee be entitled to any diminution of tJ;1e amounts payable under Article N. ' ARTICLE 1X. 004. 237866. 4 14- 01/ 02/ 2008 Page 22/ 44  Secti~ n 9. 01. Discla{mer of Warranties. LessQr makes no warranty or representation, either express or implied, as to th.e value, design, condition, merchantability or fitness for particular or representation, express , purpose or fitness for use of the Equipment, or any other warranty . or with thereto and, to the Lessor, the Lessee' s acquisition of the Equipment shall implied, respect as be on an " as is" basis. fu no event shall Lessor be liable for any incidental, indirect, sp.ecial or consequential damage in connection with or arising out of this Agreement, any Lease, the Equipment or the existence, furnishing, functioning or Lessee' s use 9f any item, product or service provided for in this Agreement or any Lease: Section 9. 02.. Vendor' s Warranties. Lessor hereby irrevocably appoints Lessee its agent and attorney-in-fact during each Lease Tenn7 so long as Lessee shall not be in default under the related Lease, to assert from time to time whatever claims and rights ( including without limitation warranties) relating to the Equipment that Lessor may have against Vendor. Lessee' s sole remedy fOF the breach of such warranty, indemnification or representation shall be against Vendor of the Equipment, and not against Less~ r. Any such matter shall not nave any effect whatsoever on t~e .. rights and obligation~ of Lessor with respect to any.Lease, including the right to' receive full and timely payments under a Lease. Lessee expressly acknowledges that Lessor makes, and.has made, no representations or warranties .whatsoever as to the ,existence or th~ availability of such warranties by Lessor of the Equipment. ARTICLE X. Section 10. 01. Purch.ase Option. Lessee. shall.have.the optio~'.to purchase' al}... ofthe' Equipment listed in a Lease,. ~pon giving written notice to. Lessor at least 3-0, but not more than 120, ays before the date ofpurchase, at the following times and upon the following tenns: a) From and after the date specifie~ in the relate~ Schedule ( the " Purchase Option Commencement Date"), on the Rental Payment dates'.specified in each Lease, upon payment in full of the Rental Payments then due under such Lease' plus the then applicable' Purchase Price; as set forth ~ the applicable Schedule; or b) In the event of substantial damage to or destruction or' conde111i1atiori of substantially all of the Equipment listed in a Lease, on the day specified in Lessee' s notice to Lessor of its exercise of the Purchase Option upon payment in full to Lessor of~ e Rental Payments then due under such Lease plus the then applicable Purchase Price: Lessee, shall have the option to purchase all oithe Equipment listed in the Lease Upon the expiration of the Lease Tenn, upon payment in full of all Rental Paynients then due and all other amounts. th~n owing under t' he Lease, and the payment of $1. 00 to Lessor. ARTICLE XI. Section 11. 01. Assignment by Lessor. Lessor' s right, title and interest in' andto,Rental . Payments and any other amounts payable by Lessee under any and all of the Leases, and all proceeds therefrom may be aSsigned and reassigned in whole or in part to.one or more assignees or subassignees by Lessor, without the necessity of obtaining the consent of Lessee; provided, however, that' any such assignment, transfer or conveyance to a trustee for the benefit of owners of certi~ cates ofparticipation shall be made in a manner that confonns to any applicable State law. Nothing in this Section 11. 01 shall be construed, however, to prevent Lessor from executing' any c. such assignment, transfer or conveyance that does not involve funding through the use of 004. 237866. 4 15- . 01/ 02/ 2008 Page 23/ 44  certificates of participation within the meaning of applicable State law, including any such assignment, transfer or conveyance as part of a multiple asset pool to a partnership or trust, inter:ests in which are offered and sold in a private placement or limited offering op.ly ~ o investors. whom . Lessor reasonably believes are qualified institutional buyers or accredited investors within the meaning of the appl~cable federal securities. law; provided further, however, that in any event, Lessee sliall not be required to make Rental Payme~ts, to send notices or to otherwise' deal 'Yith respect to matters arising under a Lease with or to more than one' in~ividual or entity. No assignment, tr~ sfer or conveyance pennitt.ed by this Section 11. 01 shall be e~fective until.Lessee . shall have received a written notice of assignment that discloses the name and address of each such assignee; provided, however, that if such 'assignment is made to a bank or trust company as. trustee or paying agent for owners of certificates of participation, tmst cert~ficates or partnership interests with respect to the Rental Paym~nts payabl~ under 3;Lease, it shall thereafter be sufficient that Lessee receives notice of the name and address of the bank or trust company as. trustee or paying agent..During the term,of e~ch Lease, Lessee shall keep, or cause to be kept, a co~ plet~ and . accurate' record of all such assignments in fonn.necessary to comply with Section 149 of the Code. Lessee shall retain all such notic'es as. a register of all assignees and shall make all payments ~o the assign~e or assignees designated in- su~h register. Lessee shall not have the right to and shall not assert against any a~signee any claiIil, coUnterclaim or ot~ er right ~ es~ ee may have against LeSSOf or the Vendor. Assigriments in part may include.without limitation assignment of all of Lessor' s rights in, to and under the Lease related to the Equipment listec;l in a:particular Lease. The option. . granted in this Section may be. separately exercised from time to time with resp~ ct to the Equipment listed in each but such option does not"pennit the assignment ofI.es than all of Lessor' s. Lease,. interests: in the Equipment listed in a single LeaSe. . . . c_ Section 11. 02. Assignment and Subleasing' by Le~see. None of Lessee' s right, title~and interest in, to and under any Lease or any portion of the Equipment may be assigried or encumbered by Lessee ~ t4~~t pr:i~r writt~n conse~t of:Les or~ ARTICLE XII. Section 12~Ol. Ev~nts afDefault Defined. Any of the following events shall constitute an Event o~ Defau1t" under a Lease, subject to Section 3. 03: a) Failure by Lessee to pay any R~ntal Payment or oth~r payment required to be paid under any Lease at ~ e time specified herein; b) Failure by Lessee to. observe and perform ~ y coven~ t, condition or on its part to be observed or perfonned, other than as referred to in agreettl:ent. subparagraph a) above, for a period-of 30 days after writt~n notice specifying such failure and requesting that it be remedied is given to Lessee by Lessor,.unless Lessor shall agree in ~ ting to an extension of such time prior to its expiration; provided that, if the failure stated in the notice cannot be corrected within the applicable period, .Lessor will not ~ easonably withhold its consent to an extension of such time if corrective action is instituted.by Lessee.within the. applicable perio4 and diligently pursued until the default is corrected; c) Any statement, representation or warranty made by Lessee in or pursuant to any Lease or its execution; delivery or performance shall prove to hav~ been false, incorrect, mi.sleading, or breached.in any material re~pect on the date w~en made; c. 004. 237866. 4 16- 01/ 02/ 2008 Page 24/ 44  d) Any default occurs under any other agreement for borrowing money or receiving credit under which the Lessee may be obligated as borrower, if suc~ default consists. of( i) the failure to pay any indebtedne.ss of $50, 000 or more.when due or (ii) the failure to perform any other' obligation thereunder that gives the holder oithe indebt~dness the right to ccelerate the indebtedness if such inde~tedness is $50,000 or more; provided, however, that ~e Lessee default~ under any other agreement for borrowing money or receiving credit if h and. the default consists of (i) the. failure to pay any indebtedness when due or (ii) the failur~ to p~