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

rfonn any other obligation thereunder that gives the holder of the indebtedness the right to accelerate t4e indebtedness, the Lessee shall-notify the Lessor in writing of its failure t,o pay such indebtedness or perfonn such obligation. e) Lessee shall ( i) apply for o~ consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee; ( ii) be unable, fail or admit.in writing its inability generally to pay its debts as they become due, iii) make a general-assignment for the benefit of creditors, ( iv) have an order for relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer' seeking reorganization or an arrangement with creditors or taking.advantage of any insolvency law or any ariswer admitting the material.. " allegations of a petItion filed against Lessee in any y, reorganization or insolvency bankrupt<? proceeding; f)An order, judgment or decree shall be entered by any' court of competent jurisdiction, approving a p~tition or.appointing a receiver, truste'e; custodian .or' liquidatbr ot" Lessee or of all or a substantial part of the assets of Lessee, in each case without its application, approval ot consent, and sucn order, judgplent or decree sh~ll continue unstayed and in effect for any period of30 consecutive days; or. ' g) Lessee shall consolida~e, merge or otherwise combine with"any ~ther.entity, or sell, lease or dispose of all or a substan~ial portion of its assets. Section 12. 02. Remedies on Default. Whenever any Event of Default exists, 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) Lessor may by notice in writing to Lessee terminate the Lease, whereupon all rights of Lessee to use the Equipment shall cease and terminate; b) By written notice to Lessee, Lessor may deman~ that Lessee pay, ~ liquidated damages for loss of a bargain and not as a penalty, all unpaid Rental Payments payable by Lessee pursuant to such Lease and other amounts. payable by Lessee under such Lease to the end of the then current Original Tenn or Renewal Tenn; c) With or without tenninat~ ng the Lease Tenn under such Lease, Lessor may request that Le~see at Lessee' s expense promptly return any or all of such Equipment to the posse~sion of Lessor at suc~ place within the United States as Lessor shall specify. In such ev~nt, Lessor shall use its best efforts to sell ot lease such Equipment or; for the account of Lessee, sublease such Equipment. If Lessee returns the Equipment and Lessor sells, leases or otherwise disposes of any.or all ~f the Equipment, Les~or shall apply the proceeds of such c__ sale,. lease or other disposition as d.escribed in Section 12. 04. Lessee shall not be liable for any. de:ficien~ y after'sale, lease. or other disposition of the Equipment; If Lessee elects . 004. 237866~4 17- 01/ 02/ 2008 Page 25/ 44  not to return the Equipment, Lessor is entitled to payment of unpaid Rental Payments C_' throug4 the date of Lessor' s request to return.the Equipment plus the applicable theJ:? Purchase Price, as set forth in the 'applicable Schedule for such Equiprp.ent. The exercise of any such remedies respecting any such Event of Default sh~ll not relieve Lessee of ~ y other liabilities under any other Lease or the Equipment listed therein; and d) Lessor may take whatever action at law 'or in equity rp.ay appear necessary or esirable to enforce its rights under such Lease.. Section 12. 03. No Remedy' Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under a Lease now or hereafter existing at law or in equi.ty. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a:waiver thereat:but any ' such right or power may be exercised from time to time and as often as may be deemed - In order to entitle Lessor to expedient.. exercise any reme'dyreserved to it in this Article it'shall not be necessary to give any notice other than such notice as may be required in this Article. -. ~ Section 12. 04. Application ofMoneys. Any net proceeds from the exercise 9f any remedy under this Agreement shall b~ applied in the following ord~r of priority: FIRST, to pay ' all of Lessor' s costs, charges and expenses incurred in taking, holding, repairing;.selling, leasing or 9the~ i~~disposing of Equipment, then SECONDs to.the extent not previously paid by Lessee~to. pay Lessor all Rental Payments under the applieable Lease through-the tennination date; then' THIRD, to pay the Purchase Price applicable as of the end .ofthe then current Original Tenn or c- Renewal Tenn, as st?t forth in the Schedule for such Equipment, then FOURTH to pay any remainder to Lessee; provided that if such remedy is exercised ~ ith respect to more than one Lease, Equipment listed in more than one Lease or rights under more than one Lease,. then to amounts due pursuant to such application 6fmoneys pro rata among the Leases or Equipment, as the case may b e. .. ARTICLE XIII. S~ction 13. 01. . Lessor. Lessor hereby' certifies that it has not p.aid or has No Fees.Paid by not promised to pay, directly or indirectly, a fee to any person not regularly employed by Lessor to act. as an intennediary between Lessee and Lessor for the purpose of influencing any transaction in connection with th~s A~ eement or any Lease. Section 13. 02. Sponsor Not Liable. Sponsor' s responsibilities under this.Agre'ement are .. limited to sponsorship of the Master Lease/Purchase program and facilitation of communication between Lessor.and Lessee in conne~tion with the initial execution of this Agreement. Sponsor, shall have no ongoing responsibilities under this Agreement or with respect to any Lease, and shall have no liability for actions.taken by any party under this Agreement. Section 13. Notices. All notices, certificates or other communications under any Lease 03.. shall be sufficiently given and shall be deemed given when delivere~ or mmled by registered mail, postage prepaid, or delivered by overnight. c,? urier, ~r sent by facsimile tT~ smission (with . elec:tronic confinnation) t9 the. parties hereto at the addresses immediately afteJ;the signatures to this Agr~' ement ( or at such other address as either party hereto shall-designate in writing to the other c.. for notices to such party) and to any assi~ ee at its address as it appears on the r~gistration bQoks 0.04. 237866. 4 t8- 01/ 02/ 2008' Page 26/ 44  maintained by Lessee. Section 13. 04. Release and Indemnification. To the extent permitted by law; but only from legally available funds, Lessee shall indemnify, protect, hold harmless, save and keep hannless Lessor from and against any and all liability, oblig~tion, loss, claim, tax and damage whatsoever, regardless qf cause 'thereof, and all expenses' in connection therewith ( including, without limitation, reasonabl~ counsel fees and expenses, penalties cO'J;l11ected therewith imposed on interest received). arising out of or as a result of: (a) the entering into of this Agreement or any Lease, (b) the . ownership 'of any iteJ;l1 of the Equipment, ( c) the ordering, acquisition, use, operation, condition, . purchase, delivery, rejection, storage or return of any item of the Eqriipment~ Cd) any accident in connection with the operation, US~, condition; possession, storage or return of any item of the Equipment resulting in damage to property or injury to or death to any person, and/or ( e) the brea~h of any covenant in a Lease or any material misrepresentation contained in a Lease. The indemnification arising ~ der this paragraph shall continue in full force and. effect notwithstanding the full payment of all obligations. under all Leases or the termination of the Lease Tenn under all Leases for any reasdn. Nothin.g contained herein is intended nor shall be cons:tmed to waiv~ the City' s rights and immunities under the common law,.Florida Statutes or Florida Constitution relating to.its sovereign immunity. Section 1-3. 05. Binding Effect. Each Lease shall inure to the benefit of and shall be binding. upon Lessor and Lessee and their respective successors and assigns. Section 13. 06. Severability. In the event any provision of any Lease shall be held:invalid '