Common use of Insurance and Application of Insurance Proceeds Clause in Contracts

Insurance and Application of Insurance Proceeds. (a) During the term of this Mortgage, Mortgagor, at its sole cost and expense, shall maintain, or cause to be maintained all insurance on the Mortgaged Property that is required to be maintained under the Indenture. All such insurance policies with respect to the Mortgaged Property shall contain a standard, non-contributory mortgagee clause naming Mortgagee, for the benefit of the Holders, and its successors and assigns, as an additional insured under all liability insurance policies, as the first mortgagee and loss payee on all property insurance policies, and as the sole loss payee on all rental loss or business interruption insurance policies. Mortgagor shall not take out separate insurance with respect to the Mortgaged Property concurrent in form or contributing in the event of loss with that required to be maintained hereunder or under the Indenture unless Mortgagee is named as an additional insured thereon under a standard mortgagee clause acceptable to Mortgagee and each such policy is otherwise in form and substance acceptable to Mortgagee. (b) In the event of the foreclosure of this Mortgage, or in the event of any transfer of title to the Mortgaged Property, or any part thereof, by foreclosure sale or by power of sale or deed in lieu of foreclosure, the purchaser of the Mortgaged Property, or such part thereof, shall succeed to all of Mortgagor’s rights with respect to the Mortgaged Property, including, without limitation, any rights to unexpired, unearned or returnable insurance premiums, subject to limitations on the assignment of blanket policies, but limited to such rights as relate to the Mortgaged Property or such part thereof. If Mortgagee acquires title to the Mortgaged Property, or any part thereof, in any manner, Mortgagee shall thereupon (as between Mortgagor and Mortgagee) become the sole and absolute owner of the insurance policies with respect to the Mortgaged Property, and all insurance proceeds payable thereunder with respect to the Mortgaged Property, with the sole right to collect and retain all unearned or returnable premiums thereon with respect to the Mortgaged Property, or such part thereof, if any. (c) If any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property shall occur, Mortgagor shall file and prosecute its claim or claims for any insurance proceeds in good faith and with due diligence and cause the same to be collected and paid in accordance with the Indenture. (d) Following any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property, Mortgagee shall apply the entire amount of any insurance proceeds in accordance with the provisions of the Indenture. Notwithstanding any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property, Mortgagor shall continue to pay the Obligations at the time and in the manner provided for in the Indenture and the other Collateral Documents, until the Obligations have been paid in full. If the Mortgaged Property is sold, through foreclosure or otherwise, prior to the receipt by Mortgagee of such insurance proceeds, Mortgagee shall have the right, whether or not a deficiency judgment on any Collateral Document shall have been sought, recovered or denied, to receive such insurance proceeds, or a portion thereof sufficient to pay the then unpaid Obligations, whichever is less. (e) The rights, powers and remedies conferred upon or reserved to Mortgagee by this Section 5.04 are intended to be subordinate and subject in all respects to the rights, powers and remedies of the Senior Lienholder set forth in the Senior Mortgage and the other Senior Loan Documents.

Insurance and Application of Insurance Proceeds. (a) During the term of this Mortgage, Mortgagor, at its sole cost and expense, shall maintain, maintain or cause to be maintained all insurance on the Mortgaged Property that is required to be maintained under the IndentureCredit Agreement. In addition, Mortgagor, at its sole cost and expense, shall maintain or cause to be maintained such other insurance as may, from time to time, be required by Mortgagee in order to protect its interests in the Mortgaged Property. (b) All such insurance policies with respect to the Mortgaged Property shall contain a standard, non-contributory mortgagee clause naming Mortgagee, for the benefit of the Holders, and its successors and assigns, as an additional insured under all liability insurance policies, as the first mortgagee and loss payee on all property insurance policies, and as the sole loss payee on all rental loss or business interruption insurance policies. Mortgagor shall not take out separate insurance with respect to the Mortgaged Property concurrent in form or contributing in the event of loss with that required to be maintained hereunder or under the Indenture Credit Agreement unless Mortgagee is named as an additional insured thereon under a standard mortgagee clause acceptable to Mortgagee and each such policy is otherwise in form and substance acceptable to Mortgagee. (bc) In the event of the foreclosure of this Mortgage, or in the event of any transfer of title to the Mortgaged Property, or any part thereof, by foreclosure sale or by power of sale or deed in lieu of foreclosure, the purchaser of the Mortgaged Property, or such part thereof, shall succeed to all of Mortgagor’s 's rights with respect to the Mortgaged Property, including, without limitation, including any rights to unexpired, unearned or returnable insurance premiums, subject to limitations on the assignment of blanket policies, but limited to such rights as relate to the Mortgaged Property or such part thereof. If Mortgagee acquires title to the Mortgaged Property, or any part thereof, in any manner, Mortgagee shall thereupon (as between Mortgagor and Mortgagee) become the sole and absolute owner of the insurance policies with respect to the Mortgaged Property, and all insurance proceeds payable thereunder with respect to the Mortgaged Property, with the sole right to collect and retain all unearned or returnable premiums thereon with respect to the Mortgaged Property, or such part thereof, if any. (cd) If any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property shall occur, Mortgagor shall file and prosecute its claim or claims for any insurance proceeds in good faith and with due diligence and cause the same to be collected and paid over to Mortgagee, and Mortgagor hereby irrevocably authorizes and empowers Mortgagee, in accordance the name of Mortgagor or otherwise, to collect and receipt for any such insurance proceeds and to adjust any insurance claims and to file and prosecute such claim or claims, and although it is hereby expressly agreed that the same shall not be necessary in any event, Mortgagor shall, upon demand of Mortgagee, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such insurance proceeds to Mortgagee, free and clear of any Liens whatsoever. Mortgagor hereby irrevocably appoints Mortgagee as Mortgagor's attorney-in-fact for each such purpose (which appointment is coupled with an interest) and authorizes any Person to act upon the Indentureforegoing appointment. (de) Following any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property, Mortgagee shall apply the entire amount of any insurance proceeds in accordance with the provisions of the IndentureCredit Agreement or, if there is no provision contained in the Credit Agreement governing how the same are to be applied, then Mortgagee shall apply the entire amount thereof to the payment of the Obligations, whether or not then due and payable, in such manner and order as Mortgagee may elect. Unless expressly provided to the contrary in the Credit Agreement, Mortgagor hereby covenants and agrees to promptly commence and to diligently prosecute the restoration of the Mortgaged Property upon the occurrence of any casualty loss affecting the Mortgaged Property, without regard to the availability or adequacy of insurance proceeds, but in all events in a manner approved by Mortgagee. Notwithstanding any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property, Mortgagor shall continue to pay the Obligations at the time and in the manner provided for in the Indenture Credit Agreement and the other Collateral Documents, Loan Documents until the Obligations have been paid in full. Notwithstanding anything to the contrary in this Section 5.04 but subject to the final sentence of this Section 5.04(e), if any damage to, destruction or loss of or other casualty with respect to the Mortgaged Property results in damage or loss of $50,000.00 or less, provided that no Default exists under the Loan Documents, Mortgagor shall be allowed to settle such claims with no involvement by Mortgagee, retain any proceeds, and apply them to restoration of the Mortgaged Property. Furthermore, subject to the final sentence of this Section 5.04(e), in the event of any damage to or destruction of the Mortgaged Property or any part thereof to an extent that the cost of restoration is greater than $50,000 but less than twenty-five percent (25%) of the fair market value of the Mortgaged Property, Mortgagee shall make the net insurance proceeds payable by reason of such damage or destruction available for restoration and repair of the Mortgaged Property to its original condition ("restoration"), provided that the following conditions are satisfied to the reasonable satisfaction of Mortgagee within one hundred twenty (120) days after such damage or destruction: (i) Mortgagor shall submit to Mortgagee schematic plans and specifications for the restoration, which plans and specifications shall be consistent with the condition of the Mortgaged Property immediately prior to such damage or destruction, subject to modifications approved by Mortgagee; (ii) Mortgagor shall enter into a fixed or guaranteed maximum cost contract for the restoration with a contractor reasonably acceptable to Mortgagee; (iii) Mortgagor shall obtain all necessary governmental permits and approvals for the restoration; (iv) Mortgagor shall deposit with Mortgagee such sums of money as are necessary, when added to the net insurance proceeds and earnings thereon, to pay the full cost of the restoration; (v) The contract for performance of the restoration shall provide that the restoration shall be substantially complete within one (1) year after the date of the damage or destruction; and (vi) Mortgagor shall agree to comply with such additional construction disbursement conditions and procedures as are customary for such projects. The net insurance proceeds and any sums deposited by Mortgagor pursuant to (iv) above shall be held by Mortgagee in a separate interest-bearing account established at Mortgagor's expense in the name of Mortgagee but for the benefit of Mortgagor, and all earnings on such deposits shall be added to such account. Mortgagor shall pay to Mortgagee a fee for Mortgagee's internal staff expense of monitoring such disbursements equal to one percent (1%) of the amount deposited in such account, and Mortgagor shall pay all out-of-pocket fees and expenses paid by Mortgagee to title insurance companies and consulting engineers and architects, for endorsements to title policies, review of plans, inspections and disbursing services in connection with such application of net insurance proceeds to the restoration. After completion of the restoration, any balance remaining in such account up to the amount of any sums deposited by Mortgagor pursuant to (iv) above plus $50,000 shall be paid to Mortgagor, and any balance remaining in such account in excess of such amounts shall be paid to Mortgagee for application to the Obligations in such order as Mortgagee shall determine. If the Mortgaged Property is sold, through foreclosure or otherwise, prior to the receipt by Mortgagee of such insurance proceeds, Mortgagee shall have the right, whether or not a deficiency judgment on any Collateral Loan Document shall have been sought, recovered or denied, to receive such insurance proceeds, or a portion thereof sufficient to pay the then unpaid Obligations, whichever is less. (e) The rights, powers and remedies conferred upon or reserved to Mortgagee by this Section 5.04 are intended to be subordinate and subject in all respects to the rights, powers and remedies of the Senior Lienholder set forth in the Senior Mortgage and the other Senior Loan Documents.

Insurance and Application of Insurance Proceeds. (a) During the term of this Mortgage, Mortgagor, at its sole cost and expense, shall maintain, or cause to be maintained all insurance on the Mortgaged Property that is required to be maintained under the Indenture. All such insurance policies of insurance, with respect to the Mortgaged Property shall contain a standard, non-contributory mortgagee clause naming Mortgagee, for the benefit in accordance with Section 6.8(a) of the Holders, and its successors and assigns, as an additional insured under all liability insurance policies, as the first mortgagee and loss payee on all property insurance policies, and as the sole loss payee on all rental loss or business interruption insurance policies. Mortgagor shall not take out separate insurance with respect to the Mortgaged Property concurrent in form or contributing in the event of loss with that required to be maintained hereunder or under the Indenture unless Mortgagee is named as an additional insured thereon under a standard mortgagee clause acceptable to Mortgagee and each such policy is otherwise in form and substance acceptable to MortgageeLoan Agreement. (b) In the event of the foreclosure of this Mortgage, or in the event of any transfer of title to the Mortgaged Property, or any part thereof, by foreclosure sale or by power of sale or deed in lieu of foreclosure, the purchaser of the Mortgaged Property, or such part thereof, shall succeed to all of Mortgagor’s 's rights with respect to the Mortgaged Property, including, without limitation, including any rights to unexpired, unearned or returnable insurance premiums, subject to limitations on the assignment of blanket policies, but limited to such rights as relate to the Mortgaged Property or such part thereof. If Mortgagee acquires title to any lot, parcel or tract of the Mortgaged Property, or any part thereof, in any manner, Mortgagee shall thereupon (as between Mortgagor and Mortgagee) become the sole and absolute owner of the insurance policies with respect to such lot, parcel or tract of the Mortgaged Property, and all insurance proceeds payable thereunder with respect to such lot, parcel or tract of the Mortgaged Property, with the sole right to collect and retain all unearned or returnable premiums thereon with respect to such lot, parcel or tract of the Mortgaged Property, or such part thereof, if any. (c) If any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property shall occur, Mortgagor shall file and prosecute its claim or claims for any insurance proceeds in good faith and with due diligence subject to Mortgagee's rights under Section 4.5 and cause Section 6.8(b) of the same to be collected and paid in accordance with the IndentureLoan Agreement. (d) Following any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property, Mortgagee shall apply the entire amount of any insurance proceeds in accordance with the provisions of the IndentureLoan Agreement. Notwithstanding In addition to the provisions set forth in the Loan Agreement, notwithstanding any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property, Mortgagor shall continue to pay the Obligations at shall not be reduced until, and then only to the time and in the manner provided for in the Indenture and the other Collateral Documentsextent that, until the Obligations any insurance proceeds shall have been paid in fullactually received and applied by Mortgagee to the discharge of the Obligations. If the Mortgaged Property is sold, through foreclosure or otherwise, prior to the receipt by Mortgagee of such insurance proceeds, Mortgagee shall have the right, whether or not a deficiency judgment on any Collateral Loan Document shall have been sought, recovered or denied, to receive such insurance proceeds, or a portion thereof sufficient to pay the then unpaid Obligations, whichever is less. (e) The rights, powers and remedies conferred upon or reserved to Mortgagee by this Section 5.04 are intended to be subordinate and subject in all respects to the rights, powers and remedies of the Senior Lienholder set forth in the Senior Mortgage and the other Senior Loan Documents.

Insurance and Application of Insurance Proceeds. (aA) During the term of this Mortgage, Mortgagor, at its sole cost and expense, shall maintain, maintain or cause to be maintained all insurance on the Mortgaged Property that is required to be maintained under the IndentureFinancing Agreement. In addition, Mortgagor, at its sole cost and expense, shall maintain or cause to be maintained such other insurance as may, from time to time, be required by Mortgagee in order to protect its interests in the Mortgaged Property. (B) All such insurance policies with respect to the Mortgaged Property shall contain a standard, non-contributory mortgagee clause naming Mortgagee, for the benefit of the Holders, and its successors and assigns, as an additional insured under all liability insurance policies, as the first mortgagee and loss payee on all property insurance policies, and as the sole loss payee on all rental loss or business interruption insurance policies. Mortgagor shall not take out separate insurance with respect to the Mortgaged Property concurrent in form or contributing in the event of loss with that required to be maintained hereunder or under the Indenture Financing Agreement unless Mortgagee is named as an additional insured thereon under a standard mortgagee clause acceptable to Mortgagee and each such policy is otherwise in form and substance acceptable to Mortgagee. (bC) In the event of the foreclosure of this Mortgage, or in the event of any transfer of title to the Mortgaged Property, or any part thereof, by foreclosure sale or by power of sale or deed in lieu of foreclosure, the purchaser of the Mortgaged Property, or such part thereof, shall succeed to all of Mortgagor’s 's rights with respect to the Mortgaged Property, including, without limitation, including any rights to unexpired, unearned or returnable insurance premiums, subject to limitations on the assignment of blanket policies, but limited to such rights as relate to the Mortgaged Property or such part thereof. If Mortgagee acquires title to the Mortgaged Property, or any part thereof, in any manner, Mortgagee shall thereupon (as between Mortgagor and Mortgagee) become the sole and absolute owner of the insurance policies with respect to the Mortgaged Property, and all insurance proceeds payable thereunder with respect to the Mortgaged Property, with the sole right to collect and retain all unearned or returnable premiums thereon with respect to the Mortgaged Property, or such part thereof, if any. (cD) If any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property shall occur, Mortgagor shall file and prosecute its claim or claims for any insurance proceeds in good faith and with due diligence and cause the same to be collected and paid over to Mortgagee, and Mortgagor hereby irrevocably authorizes and empowers Mortgagee, in accordance the name of Mortgagor or otherwise, to collect and receipt for any such insurance proceeds and to adjust any insurance claims and to file and prosecute such claim or claims, and although it is hereby expressly agreed that the same shall not be necessary in any event, Mortgagor shall, upon demand of Mortgagee, make, execute and deliver any and all assignments and other instruments sufficient for the purpose of assigning any such insurance proceeds to Mortgagee, free and clear of any Liens whatsoever. Mortgagor hereby irrevocably appoints Mortgagee as Mortgagor's attorney-in-fact for each such purpose (which appointment is coupled with an interest) and authorizes any Person to act upon the Indentureforegoing appointment. (dE) Following any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property, Mortgagee shall apply the entire amount of any insurance proceeds in accordance with the provisions of the IndentureFinancing Agreement or, if there is no provision contained in the Financing Agreement governing how the same are to be applied, then Mortgagee shall apply the entire amount thereof to the payment of the Obligations, whether or not then due and payable, in such manner and order as Mortgagee may elect. Unless expressly provided to the contrary in the Financing Agreement, Mortgagor hereby covenants and agrees to promptly commence and to diligently prosecute the restoration of the Mortgaged Property upon the occurrence of any casualty loss affecting the Mortgaged Property, without regard to the availability or adequacy of insurance proceeds, but in all events in a manner approved by Mortgagee. Notwithstanding any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property, Mortgagor shall continue to pay the Obligations at the time and in the manner provided for in the Indenture Financing Agreement and the other Collateral Documents, Loan Documents until the Obligations have been paid in full. Notwithstanding anything to the contrary in this Section 5.04 but subject to the final sentence of this Section 5.04(e), if any damage to, destruction or loss of or other casualty with respect to the Mortgaged Property results in damage or loss of $50,000.00 or less, provided that no Default exists under the Loan Documents, Mortgagor shall be allowed to settle such claims with no involvement by Mortgagee, retain any proceeds, and apply them to restoration of the Mortgaged Property. Furthermore, subject to the final sentence of this Section 5.04(e), in the event of any damage to or destruction of the Mortgaged Property or any part thereof to an extent that the cost of restoration is greater than $50,000 but less than twenty-five percent (25%) of the fair market value of the Mortgaged Property, Mortgagee shall make the net insurance proceeds payable by reason of such damage or destruction available for restoration and repair of the Mortgaged Property to its original condition ("restoration"), provided that the following conditions are satisfied to the reasonable satisfaction of Mortgagee within one hundred twenty (120) days after such damage or destruction: (i) Mortgagor shall submit to Mortgagee schematic plans and specifications for the restoration, which plans and specifications shall be consistent with the condition of the Mortgaged Property immediately prior to such damage or destruction, subject to modifications approved by Mortgagee; (ii) Mortgagor shall enter into a fixed or guaranteed maximum cost contract for the restoration with a contractor reasonably acceptable to Mortgagee; (iii) Mortgagor shall obtain all necessary governmental permits and approvals for the restoration; (iv) Mortgagor shall deposit with Mortgagee such sums of money as are necessary, when added to the net insurance proceeds and earnings thereon, to pay the full cost of the restoration; (v) The contract for performance of the restoration shall provide that the restoration shall be substantially complete within one (1) year after the date of the damage or destruction; and (vi) Mortgagor shall agree to comply with such additional construction disbursement conditions and procedures as are customary for such projects. The net insurance proceeds and any sums deposited by Mortgagor pursuant to (iv) above shall be held by Mortgagee in a separate interest-bearing account established at Mortgagor's expense in the name of Mortgagee but for the benefit of Mortgagor, and all earnings on such deposits shall be added to such account. Mortgagor shall pay to Mortgagee a fee for Mortgagee's internal staff expense of monitoring such disbursements equal to one percent (1%) of the amount deposited in such account, and Mortgagor shall pay all out-of-pocket fees and expenses paid by Mortgagee to title insurance companies and consulting engineers and architects, for endorsements to title policies, review of plans, inspections and disbursing services in connection with such application of net insurance proceeds to the restoration. After completion of the restoration, any balance remaining in such account up to the amount of any sums deposited by Mortgagor pursuant to (iv) above plus $50,000 shall be paid to Mortgagor, and any balance remaining in such account in excess of such amounts shall be paid to Mortgagee for application to the Obligations in such order as Mortgagee shall determine. If the Mortgaged Property is sold, through foreclosure or otherwise, prior to the receipt by Mortgagee of such insurance proceeds, Mortgagee shall have the right, whether or not a deficiency judgment on any Collateral Loan Document shall have been sought, recovered or denied, to receive such insurance proceeds, or a portion thereof sufficient to pay the then unpaid Obligations, whichever is less. (e) The rights, powers and remedies conferred upon or reserved to Mortgagee by this Section 5.04 are intended to be subordinate and subject in all respects to the rights, powers and remedies of the Senior Lienholder set forth in the Senior Mortgage and the other Senior Loan Documents.