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R&W Policy (a) Purchaser has conditionally bound a representations and warranties insurance policy (the “R&W Policy”) pursuant to the binder agreement which was provided to Seller for review in advance of the Execution Date and which is attached hereto as Exhibit H (the “R&W Conditional Binder”). From and after the Execution Date, each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the R&W Conditional Binder as of the Closing Date. The R&W Policy shall contain: (i) a waiver of subrogation, contribution, or otherwise by the insurer in favor of the Seller Indemnified Parties, except against Seller or any “Seller” under the Other PSAs or with respect to such Seller’s or “Seller’s” (as applicable) actual and intentional fraud in the making of the representations and warranties set forth in Article 3 of this Agreement (or the corresponding article setting forth any “Seller’s” representations and warranties in any Other PSA, as applicable), it being understood that the fraud of one Seller or “Seller” (as applicable) shall not be imputed to any other Seller or “Seller” (as applicable); and (ii) a statement that each Seller Indemnified Party is an intended third party beneficiary of the foregoing subrogation limitation.
(b) Seller and Purchaser shall each pay fifty percent (50%) of all costs of obtaining the R&W Policy, specifically the premium, surplus lines Taxes and fees, and any related broker compensation and underwriting fees; provided that Seller’s share of such costs shall be paid by Seller via the adjustment of the Cash Purchase Price pursuant to Section 2.3(n).
(c) Purchaser agrees that after the Closing it will not agree to any amendment of the R&W Policy that would be expected to cause actual and material prejudice to Seller without Seller’s prior written consent.
(d) Notwithstanding anything to the contrary in this Agreement, none of the Seller Indemnified Parties shall be entitled to any proceeds from the R&W Policy. Notwithstanding anything in this Section 5.18 or otherwise to the contrary, nothing herein shall be interpreted to limit Purchaser’s rights to make or pursue claims, or secure recovery under the R&W Policy, as Purchaser believes, in its sole discretion, to be in Purchaser’s interests.
Use of Insurance Proceeds In case the buildings, improvements or fixtures required to be insured in Section 6.1 or any part thereof shall be destroyed or damaged by fire or such other casualty required to be insured against, then and as often as the same shall happen, all proceeds of such insurance shall be available for and used with all reasonable dispatch by the Lessee in rebuilding, repairing, replacing or otherwise reinstating the buildings, improvements or fixtures so destroyed or damaged in a good and substantial manner according to the plan and elevation thereof, or according to such modified plan as shall be approved under Section 4.1(a), and to pay the rent due the Lessor. If the available insurance proceeds shall be insufficient for rebuilding, repairing, replacing or otherwise reinstating such buildings, improvements or fixtures in the manner provided in this section above, then the Lessee shall provide the balance of all funds required to completely rebuild, repair, replace or otherwise reinstate such buildings, improvements or fixtures. Lessee shall undertake promptly to reinstate the building or buildings, or portions thereof, so destroyed or damaged according to the original plan and elevation thereof, or according to such modified plan as shall be approved by Lessor pursuant to Section 4.1(a). If a casualty under this Section 6.1 shall occur in the last ten (10) years of the Term of this Lease, the Lessee shall have the option of notifying the Lessor that the Lessee does not intend to rebuild the buildings, improvements, or fixtures so destroyed, but rather elects to terminate the Lease as of the date of the casualty, by giving Lessor written notice at least thirty (30) days after the date of the casualty, and then Lessee will, at its own expense, pay all real property taxes and any assessments then outstanding and shall pay over all insurance proceeds to the Lessor, except if requested by Lessor, Lessee shall use the insurance proceeds to promptly remove from the Premises, all buildings, improvements and trade fixtures, and restore the Land then remaining to good, orderly and sanitary condition and even grade, and upon so doing the Lessee shall then surrender any remaining balance of the insurance proceeds (if any), surrender this Lease and Lessee shall be relieved of further performance under this Lease. If the available insurance proceeds shall be insufficient, then Lessee shall provide the balance of all funds required to remove from the Premises, all buildings, improvements and trade fixtures, and restore the Land then remaining to good, orderly and sanitary condition and even grade.
Alcohol Policy Where contractually bound, the employer will apply the Drug and Alcohol Management Program (DAMP) as contained at Appendix M.
Insurance and Condemnation Awards Unless and until the Discharge of Senior Obligations has occurred, the Designated Senior Representative and the Senior Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the Senior Debt Documents, (a) to be named as additional insured and loss payee under any insurance policies maintained from time to time by any Grantor, (b) to adjust settlement for any insurance policy covering the Shared Collateral in the event of any loss thereunder and (c) to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral. Unless and until the Discharge of Senior Obligations has occurred, all proceeds of any such policy and any such award, if in respect of the Shared Collateral, shall be paid (i) first, prior to the occurrence of the Discharge of Senior Obligations, to the Designated Senior Representative for the benefit of Senior Secured Parties pursuant to the terms of the Senior Debt Documents, (ii) second, after the occurrence of the Discharge of Senior Obligations, to the Designated Second Priority Representative for the benefit of the Second Priority Debt Parties pursuant to the terms of the applicable Second Priority Debt Documents and (iii) third, if no Second Priority Debt Obligations are outstanding, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct. If any Second Priority Representative or any Second Priority Debt Party shall, at any time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds over to the Designated Senior Representative in accordance with the terms of Section 4.02.
Master Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance Policy (a) The Master Servicer, at its expense, shall maintain in effect a Fidelity Bond and an Errors and Omissions Insurance Policy, affording coverage with respect to all directors, officers, employees and other Persons acting on such Master Servicer’s behalf, and covering errors and omissions in the performance of the Master Servicer’s obligations hereunder. The Errors and Omissions Insurance Policy and the Fidelity Bond shall be in such form and amount that would meet the requirements of FNMA or FHLMC if it were the purchaser of the Mortgage Loans. The Master Servicer shall (i) require each Servicer to maintain an Errors and Omissions Insurance Policy and a Fidelity Bond in accordance with the provisions of the applicable Servicing Agreement, (ii) cause each Servicer to provide to the Master Servicer certificates evidencing that such policy and bond is in effect and to furnish to the Master Servicer any notice of cancellation, non-renewal or modification of the policy or bond received by it, as and to the extent provided in the applicable Servicing Agreement, and (iii) furnish copies of the certificates and notices referred to in clause (ii) to the Trustee upon its request. The Fidelity Bond and Errors and Omissions Insurance Policy may be obtained and maintained in blanket form.
(b) The Master Servicer shall promptly report to the Trustee any material changes that may occur in the Master Servicer Fidelity Bond or the Master Servicer Errors and Omissions Insurance Policy and shall furnish to the Trustee, on request, certificates evidencing that such bond and insurance policy are in full force and effect. The Master Servicer shall promptly report to the Trustee all cases of embezzlement or fraud, if such events involve funds relating to the Mortgage Loans. The total losses, regardless of whether claims are filed with the applicable insurer or surety, shall be disclosed in such reports together with the amount of such losses covered by insurance. If a bond or insurance claim report is filed with any of such bonding companies or insurers, the Master Servicer shall promptly furnish a copy of such report to the Trustee. Any amounts relating to the Mortgage Loans collected by the Master Servicer under any such bond or policy shall be promptly remitted by the Master Servicer to the Trustee for deposit into the Certificate Account. Any amounts relating to the Mortgage Loans collected by any Servicer under any such bond or policy shall be remitted to the Master Servicer to the extent provided in the applicable Servicing Agreement.
TRANSFER POLICY Section 7 of this Agreement will not apply to Party A, who will be required to comply with, and will be bound by, the following: Without prejudice to Section 6(b)(ii) as amended in this Schedule, Party A may transfer all (but not part only) of its interests and obligations in and under this Agreement to any of its Affiliates or, with the prior written consent of Party B, such consent not to be unreasonably withheld, to any other entity (each such Affiliate or entity a "TRANSFEREE") upon providing five Business Days' prior written notice to the Note Trustee, provided that:
(i) the Transferee's short-term, unsecured and unsubordinated debt obligations are then rated not less than "A-1+" by S&P, "Prime-1" by Moody's and "F1" by Fitch and its long-term, unsecured and unsubordinated debt obligations are then rated not less than "AA-" by S&P, "A1" by Moody's and "A+" by Fitch (or its equivalent by any substitute rating agency) or such Transferee's obligations under this Agreement are guaranteed by an entity whose short-term, unsecured and unsubordinated debt obligations are then rated not less than "A-1+" by S&P, "Prime-1" by Moody's and "F1" by Fitch and whose long-term, unsecured and unsubordinated debt obligations are then rated not less than "AA-" by S&P, "A1" by Moody's and "A+" by Fitch (or its equivalent by any substitute rating agency);
R&W Insurance Policy (a) Buyers have negotiated the R&W Insurance Policy. Immediately following the execution and delivery of this Agreement, Buyers shall bind coverage in respect of the R&W Insurance Policy to incept as of the execution and delivery of this Agreement and shall timely pay that portion of any premium and underwriting fee, in each case then due and payable, to the R&W Insurer to bind and incept coverage under the R&W Insurance Policy. Buyers shall take commercially reasonable action to pay the R&W Insurer the remainder of premium and all other costs required for issuance of the R&W Insurance Policy when due. Buyers shall take commercially reasonable action to execute and cause to be executed and delivered all documents attached to the R&W Insurance Policy or as otherwise may be required by the R&W Insurer in connection with: (a) binding coverage under the terms of the R&W Insurance Policy on the date of this Agreement and (b) issuing the final R&W Insurance Policy. The R&W Insurance Policy shall include a provision whereby insurer expressly irrevocably waives, and agrees not to pursue, directly or indirectly, any subrogation rights against the Sellers or any of their Affiliates or representatives with respect to any claim made by any insured thereunder unless such claims were the result of fraud prior to the Closing by any Seller or any of its Affiliates or representatives. The Sellers shall use commercially reasonable efforts to assist and cooperate with the Buyers in connection with any claim by any Buyer under, or recovery by any Buyer with respect to, the R&W Insurance Policy. Buyers shall not take affirmative action to amend the subrogation or third party beneficiary provisions contained in such R&W Insurance Policy benefiting any Seller without the consent of such Seller.
(b) Notwithstanding any other provision of this Agreement, the Sellers, jointly and severally, shall reimburse and indemnify Buyers and their respective Affiliates, directors, officers, managers, members, employees and agents for any and all loss, liability, demand, claim of any kind, action, cause of action, cost, damage, fee, deficiency, tax, penalty, fine, assessment, interest or expense (including attorney’s fees, consultant fees, expert fees and any other reasonable fees including the reasonable fees, costs, charges and expenses of attorneys, accountants, brokers, consultants and/or other experts and/or other professionals in each case at their then-prevailing rates) arising out of or resulting from a breach of the representations and warranties in Article III of this Agreement up to an aggregate amount not to exceed $3,300,000.00 (being an amount representing one-half of the initial retention amount under the R&W Insurance Policy). Sellers’ obligation in this Section 10.23(b) shall remain in full force and effect until the latest of 45 days after the expiration of the R&W Insurance Policy, 60 days after all pending claims under the R&W Insurance Policy are fully and finally resolved, or the satisfaction in full of all outstanding obligations of the Sellers under this Section 10.23(b).
Maintenance of Insurance; Policy Provisions The Contractor, at no additional direct cost to NYSERDA, shall maintain or cause to be maintained throughout the term of this Agreement, insurance of the types and in the amounts specified in the Section hereof entitled Types of Insurance. All such insurance shall be evidenced by insurance policies, each of which shall:
(a) except policies in evidence of insurance required under Section 11.02(b), name or be endorsed to cover NYSERDA, the State of New York and the Contractor as additional insureds;
(b) provide that such policy may not be cancelled or modified until at least 30 days after receipt by NYSERDA of written notice thereof; and
(c) be reasonably satisfactory to NYSERDA in all other respects.
Other Policies All other matters relating to the employment of the Employee not specifically addressed in this Agreement shall be subject to the general policies regarding executive employees of the Company as in effect from time to time.
