|
Case 1:20-bk-12043 Doc 303-1 Filed 08/28/20 Entered 08/28/20 11:03:45 Desc
<br />Exhibit 1 A-1 and A-2 Page 12 of 38
<br />contracts, chattel paper, accounts, security deposits, and general intangibles relating thereto, and any and all
<br />substitutions, replacements or exchanges for any such item of Equipment or other collateral, in each such case in which
<br />Lessee shall from time to time acquire an interest; and (3) any and all insurance and/or other proceeds of the property and
<br />other collateral in and against which a security interest is granted hereunder. The collateral assignment, security interest
<br />and lien granted herein shall survive the termination, cancellation or expiration of each Schedule until such time as Lessee's
<br />obligations thereunder and under the other Lease Documents and under each other Schedule are fully and indefeasibly
<br />discharged. (c) If contrary to the parties' intentions a court determines that any Schedule is not a true "lease", the parties
<br />agree that in such event Lessee agrees that: (1) with respect to the Equipment, in addition to all of the other rights and
<br />remedies available to Lessor hereunder upon the occurrence of a Default, Lessor shall have all of the rights and remedies
<br />of a first priority secured party under the UCC; and (2) any obligation to pay Basic Rent or any Other Payment, to the
<br />extent constituting the payment of interest, shall be at an interest rate that is equal to the lesser of the maximum lawful
<br />rate permitted by applicable law or the effective interest rate used by Lessor in calculating such amounts. It is the
<br />intention of the parties hereto to comply with applicable usury laws. Accordingly, it is agreed that, notwithstanding any
<br />provisions to the contrary in this Lease or the other Lease Documents or any other document, in no event shall any Lease
<br />Documents or any other document require the payment or permit the collection of interest in excess of the maximum
<br />amount permitted by applicable law. If any such excess interest is contracted for, charged or received under any Lease
<br />Documents or any other document, or in the event that all of the deemed principal balance shall be prepaid, so that under
<br />any of such circumstances the amount of interest contracted for, charged or received under any Lease Documents or any
<br />other document on the deemed principal balance shall exceed the maximum amount of interest permitted by applicable
<br />law, then in such event: (a) the provisions of this Section 10(c) shall govern and control, (b) neither Lessee nor any other
<br />person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the
<br />extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess that may
<br />have been collected shall either be applied as a credit against the then unpaid deemed principal balance or refunded to
<br />Lessee, at the option of Lessor, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful
<br />contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
<br />further agreed that, without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or
<br />received under any Lease Documents or any other document that are made for the purpose of determining whether such
<br />rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing,
<br />prorating, allocating and spreading in equal parts during the period of the full stated term of the obligations evidenced
<br />hereby, all interest at any time contracted for, charged or received from Lessee or otherwise by Lessor in connection with
<br />such obligations; provided, however, that if any applicable state law is amended or the law of the United States of America
<br />preempts any applicable state law, so that it becomes lawful for Lessor to receive a greater interest per annum rate than
<br />is presently allowed by law, Lessee agrees that, on the effective date of such amendment or preemption, as the case may
<br />be, the lawful maximum hereunder shall be increased to the maximum interest rate per annum allowed by the amended
<br />state law or the law of the United States of America (but not in excess of the effective interest rate (or, if applicable, the
<br />Default Rate)).
<br />11. INSURANCE. Upon acceptance under a Schedule, until the Equipment is returned to Lessor in accordance with this
<br />Lease, Lessee shall maintain all-risk insurance coverage with respect to the Equipment insuring against, among other
<br />things: (a) any casualty to the Equipment (or any portion thereof), including loss or damage due to fire and the risks
<br />normally included in extended coverage, malicious mischief and vandalism, for not less than the full replacement value of
<br />the Equipment and, if any of the Equipment is comprised of a motor vehicle, for collision and comprehensive physical
<br />damage coverage; and (b) any commercial liability arising in connection with the Equipment, including both bodily injury
<br />and property damage with a combined single limit per occurrence of not less than the amount specified in the Schedule;
<br />having a deductible reasonably satisfactory to Lessor. Lessee shall cause to be provided to Lessor, prior to the
<br />scheduled expiration or lapse of such insurance coverage, evidence satisfactory to Lessor of renewal or replacement
<br />coverage. The required insurance policies (including endorsements) shall (i) be in form and amount reasonably
<br />satisfactory to Lessor, and written by insurers of recognized reputation and responsibility satisfactory to Lessor (but such
<br />insurer shall carry a current rating by A.M. Best Company of at least "A" for a general policyholder and a financial rating of
<br />at least "VIII"), (ii) be endorsed to name Lessor as an additional insured (but without responsibility for premiums) and
<br />lender's loss payee, (iii) provide that any amount payable under the required casualty coverage shall be paid directly to
<br />Lessor as sole loss payee, and (iv) provide for thirty (30) days' written notice by such insurer of cancellation, material
<br />change, or non -renewal.
<br />Unless Lessee provides Lessor with evidence of the insurance coverage required by the Lease Documents,
<br />Lessor may purchase insurance at Lessee's expense to protect Lessor's interests in the Collateral. This insurance may,
<br />but need not, protect Lessee's interests. The coverage Lessor purchases may not pay any claim that Lessee makes or
<br />any claim that is made against Lessee in connection with the Collateral. Lessee may later cancel any insurance
<br />6
<br />AJM 3087561 v.1 5/19/2016 9:37 AM: TL
<br />
|