|
applicable to construction loans for the payment of the costs of repairing, reconstructing,
<br />replacing and restoring any improvements. If the insurance proceeds shall exceed the cost of
<br />repairing or rebuilding the improvements, the trustee shall pay the balance remaining after
<br />payment of such costs shall be the property of the Commission.
<br />The Commission, SMA and any mortgagee shall cooperate fully in collecting
<br />such insurance proceeds and will execute and deliver any and all proofs, receipts, releases and
<br />other instruments whatsoever as may be necessary or proper for such purpose.
<br />5.07. General Provisions. In the event SMA shall fail or refuse to obtain any
<br />insurance required by this Section 5, the Commission, in addition to any other right the
<br />Commission may have under this Agreement, at law or in equity, shall have the right to obtain
<br />such insurance. The cost of such insurance shall constitute a debt payable to the Commission
<br />upon demand of SMA by the Commission.
<br />Mechanics' Liens, Indemnification, Nonliability.
<br />6.01. Mechanics' Liens. SMA shall promptly after the filing thereof discharge
<br />of record, at SMA's expense, any mechanic's, materialmen's or other lien, or notice of intention
<br />to file any such lien, filed against the Commission Property or any part thereof or interest
<br />therein; provided that SMA shall have the right to contest the validity of any such lien in any
<br />manner permitted by law so long as SMA (i) obtains title insurance, an indemnity, bond or other
<br />assurance or security reasonably satisfactory to the Commission, and (ii) shall thereafter
<br />diligently proceed to cause such lien or notice of intention to file a lien to be removed and
<br />discharged. If SMA shall fail to discharge, or to seek to discharge, any such lien or notice of
<br />intention to file a lien, then the Commission may, but shall not be obligated to, discharge the
<br />same, either by paying the amount claimed to be due, or by procuring the discharge of such lien
<br />by depositing in court a bond for the amount claimed or in such other manner as is or may be
<br />permitted by law, and SMA shall reimburse and indemnify the Commission with respect thereto.
<br />6.02. Indemnification by SMA. Regardless of whether or not caused or alleged
<br />to be caused by the several, joint, concurrent or comparative negligence, but not sole negligence,
<br />of the Commission, SMA shall, at its sole cost and expense, indemnify and save harmless the
<br />Commission, against and from any and all claims, damages, losses, fines, penalties, liability,
<br />costs and /or expenses (including but not limited to reasonable attorneys' fees) arising from (i)
<br />SMA's possession, use or control of the Commission Property or any part thereof; (ii) any
<br />condition of the Commission Property or any part thereof, (iii) any breach or default on the part
<br />of SMA in the performance of any covenant or agreement on the part of SMA to be performed
<br />pursuant to the terms of this Agreement, (iv) any willful or negligent act or omission of SMA, or
<br />any of its agents, contractors, licensees, subtenants or its or their servants, employees, customers
<br />or invitees, or (v) any accident, injury to or death of persons or damage to property whatsoever in
<br />or about the Commission Property or any part thereof; and should any claim, action or
<br />proceeding shall be brought against the Commission by reason of any such claim, damage and/or
<br />liability, SMA, upon written notice from such party, shall defend such action or proceeding with
<br />counsel acceptable to such party. Notwithstanding the foregoing, while the SMA Property is
<br />subject to a mortgage insured or held by the U.S. Department of Housing and Urban
<br />Development ( "HUD "), any liability of SMA under this Agreement with respect to the
<br />
|