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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 17 of 38
<br /> commencing on such date, which is comparable to the then remaining term of such Schedule; provided, however, Lessee
<br /> acknowledges that if Lessor is unable after reasonable effort to dispose of the Equipment at a reasonable price and
<br /> pursuant to other reasonable terms, or the circumstances reasonably indicate that such an effort will be unavailing, the
<br /> "market rent" in such event will be deemed to be $0.00, but in the event that Lessor does eventually re-lease or otherwise
<br /> dispose of the Equipment, it will apply the net proceeds of such disposition, to the extent received in good and
<br /> indefeasible funds, as a credit or reimbursement, as applicable, in a manner consistent with the applicable provisions of
<br /> Article 2A. Any amounts discounted to present value, shall be discounted at the rate of one percent (1%) per annum,
<br /> compounded annually.
<br /> (2) If an Event of Default occurs with respect to any Schedule, if Lessee fails to return the Equipment in the
<br /> manner and condition required by this Lease, or Lessor recovers and sells the Equipment, upon demand, Lessee shall
<br /> pay to Lessor an amount calculated as the Stipulated Loss Value of the Equipment (determined as of the next rent
<br /> payment date after the date of the occurrence of the subject Event of Default), together with all other Rent due with
<br /> respect to the related Schedule as of such determination date, and all Enforcement Costs (defined in Section 16(c)), less
<br /> a credit for any disposition proceeds, if applicable pursuant to the application provisions in the next sentence. If Lessor
<br /> demands the Liquidated Damages under this part (2), and recovers and sells the Equipment, any proceeds received in
<br /> good and indefeasible funds shall be applied by Lessor, with respect to the related Schedule: first, to pay all Enforcement
<br /> Costs, to the extent not previously paid; second, to pay to Lessor an amount equal to any unpaid Rent due and payable,
<br /> together with the Liquidated Damage amounts specified in this part (2), to the extent not previously paid; third, to pay to
<br /> Lessor any interest accruing on the amounts covered by the preceding clauses, at the Default Rate, from and after the
<br /> date the same becomes due, through the date of payment; and fourth, (A) if the Lessor under such Schedule is also the
<br /> Lessor under any other Schedules (whether by retaining the same, or as Assignee), to satisfy any remaining obligations
<br /> under any or all such other Schedules, or (B) if such Lessor is not the Lessor under any other Schedule, or if Lessee's
<br /> obligations to such Lessor under such other Schedules have been fully and indefeasibly satisfied, to reimburse Lessee for
<br /> such amounts to the extent paid by Lessee as Liquidated Damages pursuant to this part (2).
<br /> (c) A cancellation of any Schedule shall occur only upon written notice by Lessor to Lessee. Unless already
<br /> specifically provided for in Section 16(b), if an Event of Default occurs with respect to any Schedule, Lessee shall also be
<br /> liable for all of the following ("Enforcement Costs"): (1) all unpaid Rent due before, during or after exercise of any of the
<br /> foregoing remedies, and (2) all reasonable legal fees (including consultation, drafting notices or other documents, expert
<br /> witness fees, sending notices or instituting, prosecuting or defending litigation or arbitration) and other enforcement costs
<br /> and expenses incurred by reason of any Default or Event of Default or the exercise of Lessor's rights or remedies,
<br /> including all expenses incurred in connection with the return or other recovery of any Equipment in accordance with the
<br /> terms of this Lease or in placing such Equipment in the condition required hereby, or the sale, re-lease or other disposition
<br /> (including but not limited to costs of transportation, possession, storage, insurance, taxes, lien removal, repair,
<br /> refurbishing, advertising and brokers' fees), and sales or use taxes incurred by Lessor in connection with any disposition
<br /> of the Equipment after the occurrence of an Event of Default, and all other pre-judgment and post-judgment enforcement
<br /> related actions taken by Lessor or any actions taken by Lessor in any bankruptcy case involving Lessee, the Equipment,
<br /> or any other person. From and after the date on which an Event of Default occurs, Lessee shall (at Lessor's option) pay
<br /> interest to Lessor with respect to all amounts due hereunder until such amounts are received by Lessor in good funds at a
<br /> per annum interest rate that is the lesser of ten (10) percent or the maximum rate permitted by applicable law (the
<br /> "Default Rate"). No right or remedy is exclusive and each may be used successively and cumulatively. Any failure to
<br /> exercise the rights granted hereunder upon any Default or Event of Default shall not constitute a waiver of any such right.
<br /> No extension of time for payment or performance of any of Lessee's obligations hereunder shall operate to release,
<br /> discharge, modify, change or affect the original liability of Lessee for such obligations, either in whole or in part. In any
<br /> action to repossess any Equipment or other Collateral, Lessee waives any bonds and any surety or security required by
<br /> any applicable laws as an incident to such repossession. Notices of Lessor's intention to accelerate, acceleration,
<br /> nonpayment, presentment, protest, dishonor or any other notice whatsoever (other than as expressly set forth herein) are
<br /> waived by Lessee. Any notice given by Lessor of any disposition of the Equipment or any Collateral or other intended
<br /> action of Lessor which is given in accordance with this Lease at least five (5) business days prior to such action, shall
<br /> constitute fair and reasonable notice of such action. The execution of a Schedule shall not constitute a waiver by Lessor
<br /> of any pre-existing Default or Event of Default. With respect to any disposition of any Equipment or Collateral pursuant to
<br /> this Section, (i) Lessor shall have no obligation, subject to the requirements of commercial reasonableness, to clean-up or
<br /> otherwise prepare the same for disposition, (ii) Lessor may comply with any applicable law in connection with any such
<br /> disposition, and any actions taken in connection therewith shall not be deemed to have adversely affected the commercial
<br /> reasonableness of any disposition thereof, (iii) Lessor may disclaim any title or other warranties in connection with any
<br /> such disposition, and (iv) Lessee shall remain responsible for any deficiency remaining after Lessor's exercise of its
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<br /> AJM 3087561 v.1 5/19/2016 9:37 AM:TL
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