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

o'r unenforceable by any court of competent jurisdiction, such holding"shallnot invalidate or render, c unenforceable any other provision hereof. Any provisions in this Lease which are in conflict with. any statute, l~w or applicable rule shall be deemed omitted, modified or altered to conform thereto. Section 13. 07. Amendments, Changes 'and Modifications. .Each Lease may only be ' amended by Lessor and Lessee in writing with written notice to Sponsor containing a copy of any such amendments. Section 13. 08. Execution in parts. Each Lease may be simultaneously executed in Counte-,; several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 13. 09. Applicable Law. Each Lease' shall be governed by and construed in accordance with the laws of the State. Section 13. 10. Captions. The captions or headings in this Agreement and in each Lease are for' convenience only and in no way define, limit or describe the scope or ir~tent of any provisions or sections of this Agre~ment or any Lease. · IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their ~ames by their duly autho.rized representatives ~. ofthe date first above written. 19- 004.237866. 4 01/ 02/ 2008 Page 27/ 44  Bank 9f"Arnerica~ First Amendment to Lease No. 03537- 00300 Bane of Ameri.~ a Leasing a~ d Capita), LLC . C. his First Amendment to Lease, made eff~ctive as of October 25, 2004 (" First Amendment"), to the Master Equipment. Le.~s~urchase t da~ d April 3, 2002,' (" AgreemeI). Lease") between Bane of America Leasing & Capital, LLC, ("Lessor") and. City of Fort Walton Beach, Florida ( "Lesseell); WIT N E S 's E T H: WHEREAS, Lessor. and Lessee are parties to the Lease; and WHEREAS, Lessor an~ Lessee desire to further amend certain.provisions of the Lease. NOW, THEREFORE, in consideration of the premises and the mutual obligations herein contained, and for the other good and valuable consideration, the receipt and' sufficiency whereof is hereby acknowledged, th~ parties hereto agree to amend the Lease .as follows: . . 1. " FunQing Expiration Date" is hereby amended to read "Funding iration Date" mean~ April 3, .2008. ' EX{? Except as. expressly set forth herein, this First Amendment shall not by imp~ication or 'otherwise limit, constitute a waiver. of, or otherwise affect the rights and obligations of Lessor and Lessee under the Lease, nor alter, modify, amend or in any way ~ ect any of the terms, conditions, covenants or agreements contaJned in the Lease, all of which. are ratified and affirmed in all respects and shall continue in full force and effect. IN WITNESS WHEREO.F, the parties hereunto have caused this instrument to be executed by their duly authorized 'officers as of the day and year first abav~ written. . Bane of America Leasing & Capit~ LLC ( Lessor) City of Fort WaIton Beach, Florid1;i (Lessee) x1f~~ 1A . t '~ By: ?!.~ 1 OI/fIA 0 ~ ted ~-~ r:"~~ Prin~ d Name: U JB1ftlE 5tflrAAHkJJ Title~ Title: tlA.7l.f ~ A 6€~ . U 1/U~.' c.u~ o Past: 29/ 44  EXHIBIT B 1. ACQUISITION FUND AGREEMENT 2.. SCHEDULE OF PROPERTY NO. 008 3. RENTAL PAYMENT SCHEDULE 4. ESSENTIAL USE CERTIFICATE 5. SECRETARY/CLERK CERTIFICATE 6. OPINION OF COUNSEL 7. ADVANCE RENT INVOICE 4 Banc of- America . Public Capital Corp 2059 Northlake Parkway, 4th Floor Tucker, GA 30084 Tel 770- 270- 8400 . January 11, 2008 Lisa Absher City of Fort Walton Beach 107 Miracle Strip Pkwy. SW Fort Walton Beach, FL 32548 Re: Master Equipment LeaseIPurchase Agreement dated as of April 3, 2002, Schedule No. 008 Dear Lisa: Please find enclosed with this letter a copy of your recently executed lease documents with Banc of America Public Capital Corp. Should you have any questions/ concerns about the documentation, please contact me at 770- 270- 8448. Upon delivery, please fax me your invoice( s) at 770. 270. 8454 ( or email to laura.pritchett @bankofamerica. com), and I will prepare and ema~l your disbursement forms. Your business is greatly appreciated! Best regards, Laura Pritchett Contract Administrator Enclo5ure( s) .  1 t Acquisition Fund Agreement Florida Version) This Acquisition Fund Agreement is dated as of January 11, 2008, by and among Bane of America Public Corp, a Kansas corporation ( hereinafter referred to as " Lessor"), City of Capital Fort Walton Beach, a body corporate and. politic/ municipality of the State of Florida ( hereinafter referred to as " Lessee'~), and Bank of. America, N. A., a national banking ' association ( hereinafter referred to as " Acquisition Fund Custodian"). Reference is made to that certain ~chedule of Property No. 008 dated January 11, 2008, by and between Lessor and Lessee, incorporating the terms of that certain Master Equipment Lease/ Purchase Agreement dated 'as of April. 3, 2002 between Bane of America Leasing'& Capital, LLC, and Lessee ( collectively referred to hereinafter referred ~o as the " Lease"), covering the acquisition and lease of certain equipment described therein (tbe " Equipment"). It is a requirement of the Lease that the Equipment Costs ( an amount not to exceed $ 248, 589. 29) be deposited into an escrow under terms satisfactory to. Lessor, for the purpose' of fully. funding the Lease, and providing a mechanism for the application of such amounts to the purchase of and payment for the Equipment. The parties agree as follows: 1. Creation of Acquisition Fund. a) There is hereby created a special trust fund to be known as- the " City of Fort Walton Beach Acquisition Fund 008," for Account No. 5562562418, relating to Sc~ edule of Property No. 008 to the Lease ( the " Acquisition Fund") to be held in trust by the A.cquisition Fund Custodian for the purposes s~ated herein, for the benefit of.the Lessor and the Lessee, to be held, disbursed and returned in accordance with the terms hereof. b) The Acquisition Fund Custodian shall invest and reinvest moneys on deposit in the Acquisition Fund in Qualified Investments ( defined below) in accordance with written instructions received from the Lessee. The Lessee shall be solely responsible for ascertaining that all proposed investments and reinvestments are Qualified Investments and that they comply with federal, state and local laws, regUlations and ordinances goverJ;1ing investment of such funds and for providing appropriate notice to the Acquisition Fund Custodian for the reinvestment of any. maturing investment. Accordingly, neither the Acquisition Fund Custodian nor the Lessor shall be responsible for any liability, cost, expense, loss or claim of any kind, directly or indirectly arising out of or related to the investment or reinvestme~t of all or any portion of the moneys on deposit in the Acquisition Fund, and the Lessee agrees to and does hereby release the Acquisition Fund Custodian and the Lessor from any such liability, cost, expenses, loss or claim. Interest on the Acquisition Fund shall beconie part .of the Acquisition Fund, and gains and losses on the invest~ ent of the moneys on. deposit in the. Acquisition Fund shall be borne by the Acquisition Fund. c) For purposes of this agreement, " Qualified Investments" means any investments which meet the requirements of Sections .218. 345 and/ or 218. 415, Florida Statutes, as applicable. 1 004. 217182. 2  d) Unless the Acquisition Fund' is earlier terminated in accordance with the- provisions of paragraph ( e) below, am~unts in the Acquisition Fund shall be disbursed by the Acquisition Fund Custodian in payment of amounts described in Section 2 hereof upon receipt of written authorization( s) from the Lessor, as is more fully described in Section 2 hereof. If the amounts in the Acquisition Fund are insufficient to pay such amounts, the Lessee shall provide any balance of the funds needed to complete the acquisition of the Equipm~nt. _Any moneys remaining in the Acquisition Fun~ after the Acquisition Period ( as defined in the Lease) shall be applied as provided in Section 4 hereqf. e) ' The Acq~isition Fund shall be terminated at the earliest of (i)the fmal. qistr'ibution of amounts in the Acquisition Fund or ( ii) written notice given by the Lessor of the occurrence of a default or termination of the Lease due to: non- appropriation. f)The Acquisition Fund Custodian may act in reliance upon any writing or instrument or signature wh~ch it, in good faith, believes to be genuine and may assume the validity and accuracy' of any st~tement or -assertion contained in such. a writing or instrument. The Acquisition Fund Custodian shall not "be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity ~f any instrument nor as to the identity, authority, ~ r right of any person executing the same; and its duties hereunder 'shall be limited to the receipt of such moneys, instruments or other documents received by it as the Acquisition Fund Custodian, and for the disposition of the same in accordance herewith. g) Unless the Acquisition Fund Custodian is guilty of gross negligence or willful misconduct with regard to its duties hereunder, the Le"ssee agrees to and does hereby release and indemnify the Acquisition Fund Custodian and hold it harmless from any and