Common use of Effect of Payment by Insurer; Subrogation Clause in Contracts

Effect of Payment by Insurer; Subrogation. (a) Anything herein to the contrary notwithstanding, any payment with respect to the interest, commitment fees, Commitment Reduction Premiums or principal on or in respect of the Loans which is made with monies received pursuant to the terms of the Senior Facility Insurance Policy shall not be considered payment by the Borrower of the Loans, and shall not discharge the Borrower in respect of its obligations to make such payment. The Borrower and the Administrative Agent acknowledge that, without the need for any further action on the part of the Insurer, the Borrower, the Administrative Agent or any other Person (i) to the extent the Insurer makes payments, directly or indirectly, on account of interest, commitment fees, Commitment Reduction Premiums or principal on or in respect of the Loans to the Lenders, the Insurer will be fully subrogated to the rights of such Lenders to receive such interest, commitment fees, Commitment Reduction Premiums or principal from the Borrower and (ii) the Insurer shall be paid such interest, commitment fees, Commitment Reduction Premiums or principal in accordance with Article III hereof, in each case only after the Lenders have received payment of all Scheduled Payments of interest, commitment fees, Commitment Reduction Premiums or principal due thereon. (b) Without limiting the provisions of Article VII hereof or the rights or interest of the Lenders as otherwise set forth herein, so long as no Insurer Default exists, the Administrative Agent shall cooperate in all respects with any reasonable request by the Insurer for action to preserve or enforce the Insurer's rights or interest under this Agreement, including, without limitation, upon the occurrence and continuance of an Event of Default, a request to take any one or more of the following actions: (i) institute proceedings for the collection of all amounts then payable on the Loans, or under this Agreement in respect to the Loans, enforce any judgment obtained and collect from the Borrower monies adjudged to be due; (ii) institute proceedings from time to time for the complete or partial foreclosure under the Pledge and Intercreditor Agreement; and (iii) exercise any remedies of a secured party under the UCC and take any other appropriate action to protect and enforce the rights and remedies of the Insurer hereunder. [Signatures begin on the next page.]

Effect of Payment by Insurer; Subrogation. THE ISSUER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE OBLIGATIONS OF THE ISSUER UNDER THIS INDENTURE, THE NOTES, THE CONSTRUCTION LOAN AGREEMENT, INCLUDING THE PAYMENT OF THE PRINCIPAL OF, AND INTEREST ON AND ADDITIONAL AMOUNTS WITH RESPECT TO, THE NOTES, THE CONSTRUCTION LOAN DEED OF TRUST AND THE OTHER CONSTRUCTION LOAN DOCUMENTS ARE OWED TO, AND ARE FOR THE BENEFIT OF THE TRUSTEE (aON BEHALF OF THE NOTEHOLDERS AND THE INSURER) Anything herein AND NO PAYMENT MADE PURSUANT TO THE POLICY THE ASSIGNMENT OF REINSURANCE, OR THE REINSURANCE AGREEMENT ON ACCOUNT OF PRINCIPAL OR INTEREST ON THE NOTES OR ANY OTHER AMOUNT DUE TO THE NOTEHOLDERS SHALL MODIFY, AMEND, DIMINISH OR EXTINGUISH ANY AMOUNTS DUE FROM THE ISSUER TO THE TRUSTEE, OR OTHERWISE AFFECT THE OBLIGATIONS OF THE ISSUER OR THE RIGHTS AND REMEDIES OF THE TRUSTEE UNDER THIS INDENTURE, THE NOTES, THE CONSTRUCTION LOAN AGREEMENT, THE CONSTRUCTION LOAN DEED OF TRUST OR ANY OTHER CONSTRUCTION LOAN DOCUMENT. In addition to any other rights granted to the contrary notwithstanding, any payment with respect to the interest, commitment fees, Commitment Reduction Premiums or principal on or in respect of the Loans which is made with monies received Insurer pursuant to the terms of this Indenture, the Senior Facility Insurance Policy shall not be considered payment by the Borrower of the Loans, and shall not discharge the Borrower in respect of its obligations to make such payment. The Borrower Issuer and the Administrative Agent Trustee acknowledge that, without the need for any further action on the part of the Insurer, the BorrowerIssuer, the Administrative Agent Trustee or any other Person (i) Person, to the extent payments are made with monies received pursuant to the Insurer makes paymentsPolicy, directly the Reinsurance Policy or indirectly, the Assignment of Reinsurance on account of interest, commitment fees, Commitment Reduction Premiums principal of or principal interest on the Notes or in respect of the Loans any Additional Amounts to the LendersNoteholders, the Insurer will be fully subrogated to the rights of such Lenders the Noteholders to receive such interestamounts of principal, commitment feesinterest and Additional Amounts; provided, Commitment Reduction Premiums or principal however, that to the extent such payment is derived from the Borrower sources and (ii) in the manner provided herein for the payment of such principal, interest or Additional Amounts, the Insurer shall be paid such interest, commitment fees, Commitment Reduction Premiums or principal in accordance with Article III hereofpaid, in each case case, only after the Lenders Noteholders have received payment of all Scheduled Payments of interest, commitment fees, Commitment Reduction Premiums or principal due thereonpayments as provided in Section 7.1(b). (b) Without limiting the provisions of Article VII hereof or the rights or interest of the Lenders as otherwise set forth herein, so long as no Insurer Default exists, the Administrative Agent shall cooperate in all respects with any reasonable request by the Insurer for action to preserve or enforce the Insurer's rights or interest under this Agreement, including, without limitation, upon the occurrence and continuance of an Event of Default, a request to take any one or more of the following actions: (i) institute proceedings for the collection of all amounts then payable on the Loans, or under this Agreement in respect to the Loans, enforce any judgment obtained and collect from the Borrower monies adjudged to be due; (ii) institute proceedings from time to time for the complete or partial foreclosure under the Pledge and Intercreditor Agreement; and (iii) exercise any remedies of a secured party under the UCC and take any other appropriate action to protect and enforce the rights and remedies of the Insurer hereunder. [Signatures begin on the next page.]