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HomeMy WebLinkAbout2346 , ~ , . ~ . ~ , yi F ' 11, INSURANCE. Debtor shall procure and continuouslV maintain alt risk inwrance against loss of or damage to the Equipment ! f~om any cause whatsoever fo~ not less than the full replaceme~t value thereof naming Secured Party as Loss Payee. Such inwra~ce ` shall be in a form and with companies approved by Secured Party, shall provide at least ten 110) days advanoe written notice to i Secured Party of cancellation, change o~ modification in any term, condition w amount of protection provided therein, shall p~ovide full b~each of warrsnty protection and shall p~ovide that the coverage is primary coverage for the protection of Secured Pa~ty and : Debtor notwithsWnding any othe~ coverage carried by Secured Party or Oebtor protecting against similar risks. Debtor shall provide ! Secured Party with an original policy or ce~tificate evidencing such insurance. In the event of a~ auignment of this agreement, of • which ~ebtor has notioe, Debtor shall causs such insurance to provide the same protection to the assignee as its inte~ests may appear. ! The proceeds of such insurance, at the option of Secured Party or such assigr~ee, as appropriate, sha~l be spPlied toward the (11 repair ~ o~ replacement of the appropriate Item or Items of Equipment, (21 Payment of the Casualty Value thercof or•13) payment of, or as i p~ovision for, satisfaction of any other accrued obligations of Debtor here~nder. Any excess of such proceeds remaining shall belong ~ to Oebtor. ~ebta hereby appoints Secured Party as Debtor's attorney-in•fact with full power and authority to do all things, including, # but not limited to, making claims,-receiving payments and endorsing docume~ts, checks or drafts, necessary to secure payments due ~ under any policy contemplated hereby on account of a Cawalty Occurrence. Debtor and Secured Party contemplate that the juris- ; dictions whe~e the Equipment shall be located will not impose any liability upon Secured Pa~ty fo~ personal injury and/o? property E damage rewlting out of the possession, use, operation o~ condition of the Equipment. (n the event Secured Party determines that ; such is not the case with respect to a given jurisdiction, Debtor shall provide Secu~ed Party with public liability and ~xoperty damage ~ coverage in such amou~ts and in such form as Secu~ed Pa~ty shall require. 's 12, SECURED PARTY'S PAYMENT. In the event Debtor fails to pay any amounts due hereunder or to perform any of its other ~ obligations under this agresment, Secured Party may, at its option, but without any obtigation to do w, pay such amounts o~ perform ~ such obligations, and Debtor shall reimburse Secured Party the amount of such payment o~ cost of such performance. ~ 13. DISCLAIMER OF WARRANTIES. THIS AGREEMENT IS SOLELY A FINANCING AGREEMENT. DEBTOR ACKNOW- ~ ~EDGES THAT THE EQUIPMENT HAS BEEN SELECTED AND AC~UIRED SOIELY BY OEBTOR FOR DEBTOR'S PURPOSES AND THAT SECURED PARTY HAS NOT MADE AND DOES NOT HEREBY MAKE ANY AGREEMENT. REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERCHANTABILITY, CONDITION, OUALIFICATION OR FITNESS FOR A PARTI- ; CULAR PURPOSE, OR VALUE OF THE EQUIPMENT OR ANY OTHER MATTER WITH RESPECT THERETO IN ANY RES- PECT WHATSOEVER. f ~ 14. INDEMNITY. Uebtor dces hereby auume liabitity for and dces agree to indemnify, defend, protect, save and keep harmleu ~ Secured Party from and against any and-all liabilities, losses, damages, penalties, claims, actions, suits, costs, expenses and disburse- i ments, including court costs and legal expenses, of whatever kind and nature, imposed on, incurred by or asserted against Secured ~ Party (whether or not also indemnified against by any other person) in any way relating to.or arising out of this agreement or the manufactu~e, financing, ownership, delivery, possession, use, operation, condition or disposition of the Equipment by Secured Party or Det~to~, including without limitation, any claim alleging latent and other defects, whether or not discoverable by Secured Party or _ Debtor; any claim 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 s following learning thereof. ~ ; 15. DEFAULT. Any of the following events or conditions shall constitute an event of default hereunder: (a) Oebtor'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 default in performing any other obligation, term or condition of this agreement or any other agreement between F Debtor and Secu~ed 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 (201 days, except as provided in (c) and (d) below; lc) 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 (101 days; (d) Debtor's failure to comply with its obligations under paragraph 11 above; (e) a final ~ judgement for the payment of money in excess of S100,000 being rendered by a court of record against Debtor which Debtor does ~ not discharge or make provision for discharge in aacordance with the t~rms thereof within ninety (90) days from the date of entry thereof; (f) death or judicial deciaration 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 extensio~, or the commission by Debtor of an act of bankruptcy; ~ (h) the filing against Debtor of any wch petition not dismissed or permanently stayed within thirty (30) days of the filing thereof; (il the voluntary or involu~tary making of an assignment of a wbstantial portion of its assets by Debtor for the benefit of creditors, ; appointment of a receive~ or trustee for Debtor or for any of Oebtor's assets, institution by or against Debtor of any other type of ~ +nsolvency proceeding (unde~ the Bankruptcy Act or otherwise) or of any formal or informal _proceeding for dissolution, liquidation, ~ settlement of claims against or winding up of the affairs of Debtor, or the inaking by Debtor of a transfer of all or a material portion ~ } of Uebtor's assets or inventory not in the ordinary oourse of busi~ess; (j) the cecurrence of any event described in parts (el, (f+, (gl, ~ (h) or (i) hereinabove with respect to any gua?antor or other party liable for payment or performance of this agreement; (k1 Secured ~ Party shall in good faith deem itself insecure as a ~esult 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 guara~tor 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 the~ein set fortfi were stated or certified or having omitted any substantia! contingent or unliquidated - liability or 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 remedies of ~ a secured party, and Debtor shall have the rights and duties of a debtor, under the Uniform Commercial Code (regardless of whether such Code or a law similar thereto has been enacted in a jurisdiction wherein the ri~ts or remedies are asserted) and wiihout limiting ~ the foregoing, Secured Party may exercise any one or more of the following remedies: (a) declare the Casualty Value or such lesser amount as may be set by law immediately due and payable with ~espect to any or all Items of Equipment without notice or demand to Debtor; (b) sue for and recover all installment payments and other paymenti, then accrued or thereafter accruing, with respect ~ to any or all Items of Equipment; (c) take posseuion of and, if deemed appropriate, render unusable any or all Items of Equipment, without demand or notice, wherever same may be located, without any court order or other process of law and w+thout liability for ~ any damages cecasioned by such taking of possession and remove, keep and store the same, or use and operate or lease the same until sold; (d) require Oebtor to assemble any or all Items of Equipment at the equipment location therefor, such location to which ~ such Equipment may have been moved with the written consent of Secured Party or wch other location in reasonable proximity to either of the foregoing as Secu~ed Party shall designate; (e) upon ten (10) days notice to Debtor or wch other notice as may be re- ~ quired 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 or private sale at any place designated in such notice and apply the net proceeds of wch sale after deduct- ~ ing all costs of such sale, including, but not limited to, costs of transportation, repossession, storage, refurbishing, advertising and ~ brokers fees, to the obligations of Debtor hereunder with Debtor remaining liable for any deficiency and with any excess being re- ~ turned to Debtor; (f? upon thirty (30) days notice to Debtor, retain any repossessed or assembled Items of Equipment as Secured ~ Party's own property in full satisfaction of Debtor's liability for the installment payments due hereunder with respect thereto, pro- vided that Oebtor shall have the right to redeem such Items by payment in full of its obligations hereunder or to require Secured Party to sell or otherwise dispose of such Items in the manner set forth in (e) hereinabove upon notice to Secured Party within wch thirty (30) day period; or (g) utili2e any other remedy available to Secured Party within such thirty (30) day period; or (h) utilize 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 herein 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 conferred hereunder or at law or in equity, by statute or otherwise, and may be exer- cised concurrently or separately from time to time. Any sale contemplated by subparagraph (e) of this paragraph 16 may be ad- ' journed from time to time by announceme~t at the time and place appointed for such sale, or for any such adjourned sale, without ~ _ ~>>~x312 P~~,E~`344 J