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HomeMy WebLinkAbout0664 11. INSURANCE. Uebtor shall procure and continuously maintain ali r~sk insurance against loss of or damaye to the Equipment from any cause whatsoever for not less than the full replacement value thereof naming Secured Pa~ty as Loss Payee. Such insurance shall be in a form and with companies approved by Secu~ed Party, shall provide at least ten (10) days advance written notice to Secured Party ot cancellation, change or modification in a~y te~m, condition or amount of protection provided the?ein, shall p~ovide full breach of warranty protection and shall p~ovide that the coverage is primary coverage for the protection of Secured Party and Debtor notwithstandinn any other coverage carned by Secured Party or Debtor protecting against similar risks. Debtor shall provicie Secured Party with an original policy or certificate evidencing such insu~ance. In the event of an assignment of this ag~eement, of wh~ch Oebtor has notice, Debtor shall cause such insurance to p~ovide the same protection to the assignee as its interests may appear. The prceeeds of such insurance, at ttie option of Secured Pa~ty or such assignee, as appropriate, shall be applied toward the (1) ~epair or replacement of the appropriate Item or Items of Equipment, (2) Dayment ot the Casualty Value thereof or (3) payment of, or as provision for, satisfaction of any other accrued obligations of Debtor here•~nder. Any excess of such proceeds remaining shall belong to Debtoc. Oebtor hereby appoints Secured Party as Debtor's attorney-i~-fact with full powe~ and authority to do all things, including, but not limited to, making claims, ~eceiving payme~ts and endorsing documents, checks or drafts, necessary to secure payments due under any polic.y contemplated hereby on account of a Cawalty Occurrence. Usbtor and Secured Party contemplate that the juris- dictions where the Equipment shall be located will not impose any liability upon Secured Party fo~ personal injury and/or property damage resulting out of the possession, use, oFe~ation o~ condition of the Equipment. In the event Secured Party dete~mines that such is not the case with ~espect to a given jurisdiction, Debtor shall provide Secured Party with public liability and property damage coverage i~ such amounts and in such form as Secured Party shall require. 12. SECURED PARTY'S PAYMENT. In the event Debtor fails to pay any amounts due hereunder or to perform any of its othe~ obligations under th~s agreement, Secured Party may, at its option, but without any obligation to do so, pay such amounts or perform such obligations, and Oebtor shal! reimburse Secured Party the amount of such payme~t or cost of such performance. 13. DISCLAIMER OF WARRANTIES. THIS AGREEMENT IS SOLEIY A FINANCING AGREEMENT. DEBTOR ACKNOW- LEDGES THAT THE E~UIPMENT HAS BEEN SELECTED AND ACDUIREO SOLEL Y BY DEBTOR FOR DEBYOR'S PURPOSES AND THAT SECURED PARTY HAS NOT MADE AND DOES NOT NEREBY MAKE ANY AGREEMENT, REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERCHANTABILITY, CONDITION, QUALIFICA'fION OR FITNESS FOR A PARTI- CULAR PURPOSE, OR VALUE OF THE EQUIPMENT OR ANY OTHER MATTER WITH RESPECT THERETO IN ANY RES- PE~T WHATSOEVER. 14. INDEMNITY. Debtor dces hereby assume liability for and does agree to indemnify, defend, protect, save and keep harmless Secured Party from and against any and all tiabilities, losses, damages, penalties, claims, actions, suits, costs, ezpensPs and disburse- ments, including court costs and legal expenses, of whatever kind and nature, imposed on, incurred by or asse~ted against Secured Party (whether or not also indemnified against by any other person) in any way relating to or arising out oi this agreement or the manufacture, financing, ownership, delivery, possession, use, operation, condition or disposition of the Equipment by Secured Party or Debtor, including without limitation, any claim alleging latent and other defecis, whether or not discoverable by Secured Party or Debtor; any clairr, for patent, trademark or copyright infringement; and any claim arising out of strict liability in tort. Debtor agrees to give Secured Party and Secured Party agrees to give Debtor notice of any claim of liability hereby indemnified against promptly following learning thereof. 15. DEFAULT. Any ot tne following events or conditions shall constitute an event of default hereunder: (a? Debtor's failure to pay when due any installment payment or other amount due hereunder, which failure shall continue for seven (7) days after due date thereof; (b) Debtor's defautt in performing any other obligation, term or condition of this agreement or any other agreement between ~ebtor and Secured Party or default under any agreement providing security for the performance by Oebtor of its obligations here- under, provided such default shall have continued for more than twenty (20) days, except as provided in (c1 and (d! below; (c1 any writ or order of attachment or execution or other legal process being levied on or charged against an Item of Equipment and not being released or satisfied within ten (10) days; (d) Debtor's failure to comply with its obliyations under paragraph 11 above; (e) a final i judgement for the payment of money in excess of S100,000 bei~g rendered by a court of record against Debtor which Debtor does ~ not discharge or make provision for discharge in aocordance with the terms thereof within ninety (90) days from the date of entry f thereof; (f) death or judicial declaration of incompetency of Debtor, if an individual; (g) the filing by Debtor of a petition under the ~ Bankruptcy Act or any amendment thereto or under any other insolvency law or law providing for the relief of debtors, including, ~ without limitation, a petition for reorganization, arrangement or extension, or the commission by Debtor of an act of bankruptcy: ~ (h) the filing against Oebtor of any such ~tition not dismissed or permanently stayed within thirty (30) days of the filing thereof; ; (i) the voluntary or involuntary making of an assignment of a wbstantial portion of its assets by Debtor tor the benefit of creditors, ~ appointment of a receiver or trustee for Debtor or for any of Debtor's assets, institution by or against Debtor of any other type of ~ ;nsolvency proceeding (under the Bankruptcy Act or otherwise) or of any formal or ;nformal proceeding for dissolution, liquidation, ~ settlement of claims against or v~inding up of the aftairs of Oebto~, or the making by Uebtor of a transfer of all or a material portion ~ of Oebtor's assets or inventory not in thE ordinary course of busineu; (j) the occurrence of any event described in parts (el, (f?, Ig1, ~ (h) or (i) hereinabove with respect to any guarantor or other party liable for payment or performance of this agreement; (k) Secured ~ Party shall in good faith deem itself insecure as a result of, a material adverse change in Debtor's financial condition; or (1? any cer- ~ tificate, statement, representation, warranty or audit heretofore or hereafter furnished with respect hereto by or on behalf of Debtor ~ ~ or any guarantor or other party liable for payment or performance of this agreement proving to have been false in any material respect ~ at the time as of which the facts therein set fotth were stated or certified or having omitted any substantial contingent or unliquidated i~ability ~r claim against Debtor or any such guarantor or other party. ~ 16. REMEDIES. Upon the occurrence of an event of default, Secured Party shall have the rights, options, duties and rsmedies of ~ a secured party, and Debtor shall have the rights and duties of a debtor, under the Unitorm Commercial Code (regardless of whether ~ such Code or a law simitar thereto has been enacted in a jurisdiction wherein the rights or remedies are asserted) and without limiting the foregoing, Secured Party may exercise any one or more of the foltowing remedies: (a) declare the Casualty Value or such lesser ~ amount as may be set by law immediately due and payable with respect to any or all Items of Equipment without notice or demand af_ to Debtor, (b) sue for and recover all installment payments and other payments, then accrued ar thereafter accruing, v~ith ~espect to any o~ all Items of Equipment; (c) take possession of and, if deemed appropriate, render unusable any or all Items of Eauipment, ~ without demand or notice, wherever same may be located, without any court order or other process af Idw and without liability for ~ any damages occasioned by such taking of possession and remove, keep and store the same, or use and operate or lease the same until ~ sold; (d) require Debtor to assemble any or all Items of Equipment at the equipment location ±herefor, such location to which = such Equipment may have been moved with the written consent of Secured Party or such other location in reasonable proximity to either of the foregoing as Secured Party shalt designate; (e) upon ten (10) days notice to Debtor or such other notice as may t~e re- `T yuired by law, sell or otherwise dispose of any Items of Equipment, whether or not in Secured Party's possession, in a commercially reasonable manner at public ~r private saie at any place designated in such notice and apply ihe net proceeds of such sale after deduct- ing all costs of such sale, including, but not limited to, costs of transportation, repossession, storage, refurbishing, advertising and ~ b~okers fees, to the obligations of Debtor hereunder with Debtor remaining liable for any deficiency and with any excess being re- tumed to Debtor, (f) upon thirty (30) days notice to Debtor, retain any repossessed or assembled ttems of Equipment as Secured 4 Party's own property in full satisfaction of Debtor's liability for the installment payments due hereunder with respect thereto, pro- ! - vided that Debtor shatl have the right to redeem such Items by payment in full of its obligations hereunder or to require Secured ! Party to seU or otherwise dispose of such Items in the manner set forth in (e) hereinabove upon notice to Secured Party within such ~ thirty (30) day period: or (g) utilize any other remedy available to Secured Party within such thirty ("s0) day period; or (h) utilize J ' any other remedy available to Secured Party under the Uniform Commercial Code or similar provision of law or otherwise at law or in equity. ~ No right or remedy conferred herei~ is exclusive of any other right or remedy conferred herein or by law; but all such remedies are cumulative of every other right or remedy co~ferred hereunder or at law or in equity, by statute or otherwise, and may be exer- k~ cised concurrently or separately from time to time. Any sale contemptated by subparagraph (e) of this paragraph 16 may be ad- , journed from time to time by announcement at the time and place appointed for such sale, or for any sud: adjourned sale, without ~ ~ ~ go~K3U4 ~A~E fi64 - ~ _ _ - - l_