|
8.03 Insurance. At its own expense,Purchaser shall maintain(a)casualty insurance insuring the Property against loss or damage by fire and all
<br /> other risks covered by the standard extended coverage endorsement then in use in the State and any other risks reasonably required by Seller in an
<br /> amount equal to at least the outstanding principal component of Installment Payments,and(b)liability insurance that protects Seller from liability in all
<br /> events in an amount reasonably acceptable to Seller,and(c)workers compensation insurance covering all employees working on,in,near or about the
<br /> Property; provided that Purchaser may self-insure against all such risks(other than rental interruption). All insurance proceeds from casualty losses
<br /> shall be payable as hereinafter provided in this Agreement. All such insurance shall be with insurers that are authorized to issue such insurance in the
<br /> State. All such liability insurance shall name Seller as an additional insured. All such casualty insurance shall contain a provision making any losses
<br /> payable to Seller and Purchaser as their respective interests may appear. All such insurance shall contain a provision to the effect that such insurance
<br /> shall not be canceled or modified without first giving written notice thereof to Seller and Purchaser at least thirty (30) days in advance of such
<br /> cancellation or modification. Such changes shall not become effective without Seller's prior written consent. Purchaser shall furnish to Seller, on or
<br /> before the Commencement Date for each Property Schedule,and thereafter at Sellers request,certificates evidencing such coverage,or, if Purchaser
<br /> self-insures, a written description of its self-insurance program together with a certification from Purchasers risk manager or insurance agent or
<br /> consultant to the effect that Purchaser's self-insurance program provides adequate coverage against the risks listed above.
<br /> 8.04 Advances. In the event Purchaser shall fail to either maintain the insurance required by this Agreement or keep the Property in good repair
<br /> and working order, Seller may, but shall be under no obligation to, purchase the required insurance and pay the cost of the premiums thereof or
<br /> maintain and repair the Property and pay the cost thereof. All amounts so advanced by Seller shall constitute additional rent for the Term for the
<br /> applicable Property Schedule and shall be due and payable on the next Installment Payment Date and Purchaser covenants and agrees to pay such
<br /> amounts so advanced by Seller with interest thereon from the date such amounts are advanced until paid at the rate of 12% per annum or the
<br /> maximum amount permitted by law,whichever is less.
<br /> ARTICLE IX
<br /> 9.01 Damage or Destruction. If(a)the Property under a Property Schedule or any portion thereof is destroyed,in whole or in part,or is damaged
<br /> by fire or other casualty, or(b)title to, or the temporary use of, the Property under a Property Schedule or any part thereof shall be taken under the
<br /> exercise or threat of the power of eminent domain by any governmental body or by any person, firm or corporation acting pursuant to governmental
<br /> authority,Seller and Purchaser will cause the Net Proceeds(as hereinafter defined)of any insurance claim,condemnation award or sale under threat of
<br /> condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Property, unless Purchaser shall have
<br /> exercised its right to defease the Property Schedule as provided herein,or unless Purchaser shall have exercised its option to prepay the Installment
<br /> Payments if the Property Schedule so provides. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to
<br /> Purchaser. For purposes of Section 8.03 and this Article IX,the term"Net Proceeds"shall mean the amount remaining from the gross proceeds of any
<br /> insurance claim, condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys' fees, incurred in the
<br /> collection thereof.
<br /> 9.02 Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or
<br /> improvement referred to in Section 9.01, Purchaser shall(a)complete such replacement,repair, restoration,modification or improvement and pay any
<br /> costs thereof in excess of the amount of the Net Proceeds and,if Purchaser shall make any payments pursuant to this Section, Purchaser shall not be
<br /> entitled to any reimbursement therefor from Seller nor shall Purchaser be entitled to any diminution of the amounts payable under Section 6.01,or(b)
<br /> defease the Property Schedule pursuant to Section 6.04, or (c) exercise its option to prepay the Installment Payments pursuant to the optional
<br /> prepayment provisions of the Property Schedule, if any. The amount of the Net Proceeds, if any, remaining after completing such repair, restoration,
<br /> modification or improvement or after such defeasance or purchase may be retained by Purchaser.
<br /> ARTICLE X
<br /> 10.01 Disclaimer of Warranties. SELLER MAKES NO(AND SHALL NOT BE DEEMED TO HAVE MADE ANY)WARRANTIES, EXPRESS OR
<br /> IMPLIED,AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF,OR THE
<br /> QUALITY OF THE MATERIAL, EQUIPMENT OR WORKMANSHIP IN, THE PROPERTY, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY
<br /> PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR ANY COMPONENT THEREOF, THE ABSENCE OF LATENT OR OTHER
<br /> DEFECTS (WHETHER OR NOT DISCOVERABLE), AND SELLER HEREBY DISCLAIMS THE SAME; IT BEING UNDERSTOOD THAT THE
<br /> PROPERTY IS SOLD TO PURCHASER"AS IS"ON THE DATE OF THIS AGREEMENT OR THE DATE OF DELIVERY,WHICHEVER IS LATER,
<br /> AND ALL SUCH RISKS,IF ANY,ARE TO BE BORNE BY PURCHASER. Purchaser acknowledges that it has made(or will make)the selection of the
<br /> Property from the Vendor based on its own judgment and expressly disclaims any reliance upon any statements or representations made by Seller.
<br /> Purchaser understands and agrees that(a) neither the Vendor nor any sales representative or other agent of Vendor, is(I)an agent of Seller, or(ii)
<br /> authorized to make or alter any term or condition of this Agreement, and(b)no such waiver or alteration shall vary the terms of this Agreement unless
<br /> expressly set forth herein. In no event shall Seller be liable for any incidental, indirect, special or consequential damage in connection with or arising
<br /> out of this Agreement, the Property Schedules, or the existence, furnishing, functioning or use of any item, product or service provided for in this
<br /> Agreement or the Property Schedules.
<br /> 10.02 Vendor's Warranties. Seller hereby irrevocably assigns to Purchaser all rights that Seller may have to assert from time to time whatever
<br /> claims and rights(including without limitation warranties)related to the Property against the Vendor. Purchasers sole remedy for the breach of such
<br /> warranty, indemnification or representation shall be against the Vendor of the Property, and not against Seller, nor shall such matter have any effect
<br /> whatsoever on the rights and obligations of Seller with respect to this Agreement, including the right to receive full and timely payments hereunder.
<br /> Purchaser expressly acknowledges that Seller makes,and has made,no representations or warranties whatsoever as to the existence or the availability
<br /> of such warranties of the Vendor of the Property.
<br /> 10.03 Use of the Property. Purchaser will not install,use,operate or maintain the Property improperly,carelessly,in violation of any applicable law
<br /> or in a manner contrary to that contemplated by this Agreement and the applicable Property Schedule. Purchaser shall provide all permits and
<br /> licenses,if any, necessary for the installation and operation of the Property. In addition,Purchaser agrees to comply in all respects with all laws of the
<br /> jurisdiction in which its operations involving any item of Property may extend and any legislative, executive, administrative or judicial body exercising
<br /> any power or jurisdiction over the items of the Property;provided that Purchaser may contest in good faith the validity or application of any such law or
<br /> rule in any reasonable manner that does not,in the opinion of Seller,adversely affect the interest of Seller in and to the Property or its interest or rights
<br /> under this Agreement. Purchaser shall promptly notify Seller in writing of any pending or threatened investigation, inquiry, claim or action by any
<br /> governmental authority which could adversely affect this Agreement,any Property Schedule or the Property thereunder.
<br /> 10.04 Modifications. Subject to the provisions of this Section, Purchaser shall have the right,at its own expense, to make alterations, additions,
<br /> modifications or improvements to the Property. All such alterations, additions, modifications and improvements shall thereafter comprise part of the
<br /> Property and shall be subject to the provisions of this Agreement. Such alterations, additions, modifications and improvements shall not in any way
<br />
|