|
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 14 of 38
<br />such Equipment), and Lessee will assign any Equipment license and associated software license at Lessor's sole
<br />discretion and Lessee's expense upon Equipment return; and (v) cleaned and cosmetically acceptable, with all Lessee -
<br />installed markings removed and all rust, corrosion or other contamination having been removed or properly treated, and in
<br />such condition so that it may be immediately installed and placed in service by a third party. Upon delivery, such
<br />Equipment shall be in compliance with all applicable Federal, state and local laws, and health and safety guidelines.
<br />Lessee shall be responsible for the cost of all repairs, alterations, inspections, appraisals, storage charges, insurance
<br />costs, demonstration costs and other related costs necessary to cause such Equipment to be in full compliance with the
<br />terms of this Lease. (b) If requested by Lessor, Lessee shall also deliver all related records and other data to Lessor,
<br />including all records of maintenance, modifications, additions and major repairs, computerized maintenance history, and any
<br />maintenance and repair manuals (collectively, the "Records"). All manuals or other documents delivered to Lessor that are
<br />subject to periodic revision will be fully up-to-date and current to the latest revision standard of any particular manual or
<br />document. In the event any such Records are missing or incomplete, Lessor shall have the right to cause the same to be
<br />reconstructed at Lessee's expense. (c) In addition to Lessor's other rights and remedies hereunder, if such Equipment and
<br />the related Records are not returned in a timely fashion, or if repairs are necessary to place any item of Equipment in the
<br />condition required in this Section, Lessee shall (i) continue to pay to Lessor per diem rent at the last prevailing lease rate
<br />under the applicable Schedule with respect to such item of Equipment, for the period of delay in redelivery, and/or for the
<br />period of time reasonably necessary to accomplish such repairs, and (ii) pay to Lessor an amount equal to the aggregate
<br />cost of any such repairs. Lessor's acceptance of such rent on account of such delay and/or repair does not constitute an
<br />extension or renewal of the term of the related Schedule or a waiver of Lessor's right to prompt return of such Equipment
<br />in proper condition. Such amount shall be payable upon the earlier of Lessor's demand or the return of such Equipment in
<br />accordance with this Lease. (d) Without limiting any other terms or conditions of this Lease, the provisions of this Section
<br />are of the essence of each Schedule, and upon application to any court of equity having jurisdiction, Lessor shall be entitled
<br />to a decree against Lessee requiring Lessee's specific performance of its agreements in this Section.
<br />14. INDEMNITY. (a) General. Lessee shall indemnify, defend and keep harmless Lessor and any Assignee (as defined
<br />in Section 17), and their respective directors, officers, affiliates, agents and employees (each, an "Indemnitee"), from and
<br />against any and all Claims (other than such as directly and proximately resulting from the actual, but not imputed, gross
<br />negligence or willful misconduct of such Indemnitee), by paying, on a net after-tax basis, or otherwise discharging same,
<br />when and as such Claims shall become due. Lessee agrees that the indemnity provided for in this Section includes the
<br />agreement by Lessee to indemnify each Indemnitee from the consequences of its own simple negligence, whether that
<br />negligence is the sole or concurring cause of the Claims, and to further indemnify each such Indemnitee with respect to
<br />Claims for which such Indemnitee is strictly liable. Lessor shall give Lessee prompt notice of any Claim hereby
<br />indemnified against and Lessee shall be entitled to control the defense of and/or to settle any Claim, in each case, so long
<br />as (1) no Default or Event of Default has occurred and is then continuing, (2) Lessee confirms, in writing, its unconditional
<br />and irrevocable commitment to indemnify each Indemnitee with respect to such Claim, (3) Lessee is financially capable of
<br />satisfying its obligations under this Section, (4) Lessor approves the defense counsel selected by Lessee, and (5) there is
<br />no reasonable risk of criminal liability being imposed on Indemnitee as a result of such Claim. The term "Claims" shall
<br />mean all claims, allegations, harms, judgments, settlements, suits, actions, debts, obligations, damages (whether
<br />incidental, consequential or direct), demands (for compensation, indemnification, reimbursement or otherwise), losses,
<br />penalties, fines, liabilities (including strict liability), charges, fees, expenses, costs, and other amounts that Indemnitee has
<br />incurred or for which it is responsible (including without limitation (i) attorneys' fees and legal costs; and (ii) legal and non-
<br />legal expenses of investigation or defense of any Claim), in each case, of whatever kind or nature, contingent or
<br />otherwise, matured or unmatured, foreseeable or unforeseeable, by or against any person, arising on account of or
<br />relating to (A) any Lease Document, including the performance, breach (including any Default or Event of Default) or
<br />enforcement of any of the terms thereof, or (B) the Equipment, or any part or other contents thereof, any substance at any
<br />time contained therein or emitted therefrom, including any hazardous substances, or the premises at which the Equipment
<br />may be located from time to time, or (C) the ordering, acquisition, delivery, installation or rejection of the Equipment, the
<br />possession of any property to which it may be attached from time to time, maintenance, use, condition, ownership or
<br />operation of any item of Equipment, and by whomsoever owned, used, possessed or operated, during the term of any
<br />Schedule with respect to that item of Equipment, the existence of latent and other defects (whether or not discoverable by
<br />Lessor or Lessee), any claim in tort for negligence or strict liability, and any claim for patent, trademark or copyright
<br />infringement, or the loss, damage, destruction, theft, removal, return, surrender, sale or other disposition of the
<br />Equipment, or any item thereof, including, Claims involving or alleging environmental damage, or any criminal or terrorist
<br />act, or for whatever other reason whatsoever. If any Claim is made against Lessee or an Indemnitee, the party receiving
<br />notice of such Claim shall promptly notify the other, but the failure of the party receiving notice to so notify the other shall not
<br />relieve Lessee of any obligation hereunder.
<br />8
<br />AJM 3087561 v.1 5/19/2016 9:37 AM: TL
<br />
|