Insurance and Condemnation. (a) Borrower shall procure for, deliver to and maintain for the benefit of Lender during the term of this Instrument, original, fully paid insurance policies issued by such insurance companies, in such amounts, form and substance, insuring such parties (including Borrower and any contractor performing work upon the Premises) providing "all risk" permanent real and personal property in an amount equal to or greather than the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises), worker's compensation, naming Lender as mortgagee and additional loss payee with respect to all property insurance and as an additional insured with respect to all liability insurance except worker's compensation. At least ten (10) days prior to the expiration date of each policy maintained pursuant to this section, a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing the payment of all premiums required to keep such insurance in effect for the full term of such policy. At the request of Lender, Borrower shall provide evidence satisfactory to Lender that all such insurance is in effect. If the Premises or any part thereof is damaged by fire or any other cause, Borrower will give immediate written notice thereof to Lender. (b) Borrower shall notify Lender immediately upon obtaining knowledge of the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu thereof) of the Premises or any part thereof. (c) Lender shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage to the Premises or any portion thereof and to give receipts and acquittances therefor, and is hereby authorized, at its option, to adjust or compromise any casualty, condemnation or damage claim or cause of action, to commence, appear in and prosecute, in its own or in Borrower's name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all such claims and causes of action to Borrower and Lender jointly.
Appears in 1 contract
Samples: Sales Contract (Xponential Inc)
Insurance and Condemnation. (a) Borrower 2.3.1 The Mortgagor shall procure for, deliver to and maintain for the benefit of Lender CoBank during the term of this InstrumentMortgage, original, fully paid insurance policies issued by such insurance companies, in such amounts, form and substance, insuring such parties (including Borrower the Mortgagor and any contractor performing work upon the Premises) providing "all risk" permanent real and personal property in an amount equal to or greather than with such expiration dates as required by the outstanding principal balance of Mississippi One Loan Agreement and the note, public liability (insuring Borrower and any contractor performing work on the Premises), worker's compensationMercury Loan Agreement, naming Lender CoBank as mortgagee and additional loss payee with respect to all property insurance and as an additional insured with respect to all liability insurance except worker's compensation. At least ten (10) days prior The Mortgagor shall cause any builder's risk insurance covering any improvements to the expiration date of each policy maintained pursuant Premises to this section, a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing the payment of all premiums required to keep such replaced by permanent insurance in effect for the full term promptly upon completion of such policyimprovements and without any lapse in coverage. At the request of LenderCoBank, Borrower the Mortgagor shall provide evidence satisfactory to Lender CoBank that all such insurance is in effect. If the Premises or any part thereof is damaged by fire or any other cause, Borrower the Mortgagor will give immediate written notice thereof to LenderCoBank.
(b) Borrower 2.3.2 The Mortgagor shall notify Lender CoBank immediately upon obtaining knowledge of the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument Mortgage shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu thereof) of the Premises or any part thereof.
(c) Lender 2.3.3 CoBank shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage to the Premises or any portion thereof or to any other property of the Mortgagor and to give receipts and acquittances therefor, and is hereby authorized, at its option, to adjust or compromise any casualty, condemnation or damage claim or cause of action, to commence, appear in and prosecute, in its own or in Borrowerthe Mortgagor's name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all such claims and causes of action directly to Borrower CoBank, instead of to the Mortgagor and Lender CoBank jointly. In the event any insurance company, condemning authority or other party fails to disburse directly and solely to CoBank to the extent herein required but disburses instead either solely to the Mortgagor or to the Mortgagor and CoBank jointly, the Mortgagor agrees immediately to endorse and transfer such payments to CoBank. Upon the failure of the Mortgagor to endorse and transfer such payments as aforesaid, CoBank may execute such endorsements or transfers for and in the name of the Mortgagor and the Mortgagor hereby irrevocably appoints CoBank as the Mortgagor's agent and attorney-in-fact so to do. CoBank shall not be responsible for any failure to collect any insurance proceeds, any condemnation award or any other payment relating to the Premises, regardless of the cause of such failure. After deducting from any condemnation, insurance or other proceeds received by CoBank all expenses of CoBank incurred in the collection and administration of such sums, including attorney's fees, CoBank may apply the net proceeds or any part thereof, at its option, to any one or more of the following: (i) the payment of the Secured Obligations, whether or not due and in whatever order CoBank elects, (ii) the repair, replacement or restoration of the Premises or any part thereof, and (iii) any other purposes for which CoBank is entitled to advance funds under this Mortgage, all without affecting the security interest created by this Mortgage; and any balance of such moneys not applied by CoBank as aforesaid shall be paid to the Mortgagor or the person or entity lawfully entitled thereto. In the event that the Mortgagor receives any condemnation, insurance or other proceeds directly, it shall apply them for the purposes described in clauses (i) and (ii) in the immediately preceding sentence. In the event of the foreclosure of this Mortgage or any other transfer of title to the Premises in extinguishment or partial extinguishment of the Secured Obligations, all right, title and interest of the Mortgagor in and to all insurance policies then in force (including any premiums paid in advance), all insurance proceeds, all condemnation proceeds and awards and all claims and judgments for damage to the Premises or any portion thereof shall pass to the purchaser or CoBank, and said purchaser or CoBank shall have the right to receive all awards, proceeds or payments relating thereto to the extent of any unpaid Secured Obligations following such sale, with legal interest thereon, whether or not a deficiency judgment on this Mortgage or the Secured Obligations shall have been sought or recovered, and to the extent of reasonable counsel fees, costs and disbursements incurred by CoBank in connection with the collection of such award, proceeds or payments.
Appears in 1 contract
Samples: Mortgage (Mercury Inc)
Insurance and Condemnation. (a) Borrower shall procure forkeep the Improvements insured, deliver to and shall maintain for the benefit of Lender during the term of this Instrumentgeneral liability coverage and such other coverages requested by Lender, original, fully paid insurance policies issued by such insurance companiescarrier(s), in such amounts, amounts and in form and substance, insuring such parties (including Borrower and any contractor performing work upon the Premises) providing "at all risk" permanent real and personal property in an amount equal to or greather than the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises), worker's compensation, naming Lender as mortgagee and additional loss payee with respect to all property insurance and as an additional insured with respect to all liability insurance except worker's compensation. At least ten (10) days prior to the expiration date of each policy maintained pursuant to this section, a renewal or replacement thereof times satisfactory to Lender shall be delivered to Lender, together with receipts evidencing which carrier(s), amounts and form shall not be changed without the payment of all premiums required to keep such insurance in effect for the full term of such policy. At the request prior written consent of Lender. All such policies of insurance shall be issued by insurers qualified under the laws of the state in which the Land is located, duly authorized and licensed to transact business in such state and reflecting a General Policy Rating of A-:V or better in Best's Key Rating Guide. In case of loss or damage by fire or other casualty, Borrower shall provide evidence satisfactory to Lender that all such insurance is in effect. If the Premises or any part thereof is damaged by fire or any other cause, Borrower will give immediate written notice thereof to the insurance carrier(s) and to Lender.
. Lender is authorized and empowered to make or file proofs of loss or damage (bin each case only so long as such loss or damages is equal to or greater than $50,000) and to settle and adjust any claim under insurance policies which insure against such risks, or to direct Borrower, in writing, to agree with the insurance carrier(s) on the amount to be paid in regard to such loss. Borrower shall immediately notify Lender immediately upon obtaining knowledge of the institution, or the proposed, contemplated or threatened institution, of any action for the taking through or proceeding relating to any condemnation (which term when used in this Instrument shall include any damage or taking by any governmental other taking, whether direct or quasi-governmental authority and any transfer by private sale in lieu thereof) indirect, of the Premises Property, or any part thereof.
(c) Lender shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage to the Premises or any portion thereof and to give receipts and acquittances therefor, and is hereby authorizedBorrower shall appear in and prosecute any such action or proceeding unless otherwise directed by Lender in writing. Borrower authorizes Lender, at its Lender's option, to adjust or compromise any casualty, condemnation or damage claim or cause of actionas attorney-in- fact for Borrower, to commence, appear in and prosecute, in its own Lender's or in Borrower's name, any action or proceeding relating to any casualty, condemnation or damage claim other taking of the Property, whether direct or cause of actionindirect, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority with such condemnation or other party taking, provided such claim is for an amount equal to or greater than $50,000. The proceeds of any award, payment or claim for damages, direct or consequential, in connection with any condemnation or other taking, whether direct or indirect, of the Property, or part thereof, or for conveyances in lieu of condemnation, are hereby authorized assigned to and directed shall be paid to Lender as further security for the payment of the Indebtedness and performance of the Obligations.
(i) to Borrower to the extent Borrower was required to make payment for all such claims a deposit pursuant to this paragraph, (ii) then to Lender to be applied to the Indebtedness, whether or not due and causes of action to Borrower payable until paid in full, and Lender jointly.(iii)
Appears in 1 contract
Insurance and Condemnation. Maintain at all times substantially the same type of insurance coverage in respect of its properties and assets as that maintained in respect thereof immediately prior to the execution of this Agreement:
(a) in amounts not less than the amount of the coverage immediately prior to the execution of this Agreement for all insurance other than that described in clause (b) below including, without limitation, fire and extended coverage insurance for the full and insurable replacement value of all buildings and other improvements located on its properties and business interruption and workmen's compensation insurance. All such insurance (other than workmen's compensation insurance) relating to assets of Borrower or its Subsidiaries shall procure forname the Collateral Agent as loss payee (and in the case of each item of real property on which the Collateral Agent has a security interest, deliver mortgage loss payee) and an additional insured for the interests relating to the assets of Borrower and maintain its Subsidiaries, for the benefit of Lender during the term Collateral Agent and each Bank, as their interests may appear, and shall not be modified, reduced or cancelled in the absence of this Instrument, original, fully paid insurance policies issued by such insurance companies, in such amounts, form and substance, insuring such parties thirty (including Borrower and any contractor performing work upon the Premises) providing "all risk" permanent real and personal property in an amount equal to or greather than the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises), worker's compensation, naming Lender as mortgagee and additional loss payee with respect to all property insurance and as an additional insured with respect to all liability insurance except worker's compensation. At least ten (1030) days prior written notice to the expiration date of each policy maintained pursuant to this section, a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing the payment of all premiums required to keep such insurance in effect for the full term of such policyCollateral Agent. At the request of Lender, Borrower shall provide evidence satisfactory promptly notify Agent of any loss, damage, or destruction to Lender that the Collateral in excess of $500,000 for each such casualty, whether or not covered by insurance. The Collateral Agent is hereby authorized to collect all such insurance is in effectproceeds directly. If the Premises With respect to insurance proceeds arising from loss, damage or other casualty to any part thereof is damaged by fire or any other cause, Borrower will give immediate written notice thereof to Lender.
(b) Borrower shall notify Lender immediately upon obtaining knowledge of the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu thereof) of the Premises Collateral or any part thereof.
(c) Lender , such proceeds shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation applied as hereinafter provided. Destruction or damage to the Premises any real or personal property of Borrower or any portion thereof Subsidiary which gives rise to insurance proceeds shall be deemed to be a disposition of such property for purposes of Section 7.08(d); PROVIDED, HOWEVER, that if the total amount of the proceeds from such casualty is reasonably expected to be less than $3,500,000 and neither an Event of Default nor a Default shall have occurred and be continuing, Borrower shall have the exclusive right to give receipts negotiate a settlement regarding such proceeds with the applicable insurance company and acquittances therefor, and is hereby authorized, at its option, to adjust or compromise any casualty, condemnation or damage claim or cause of action, to commence, appear in and prosecute, in its own or in Borrower's name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all the Collateral Agent shall promptly forward such claims and causes of action proceeds to Borrower and Lender jointlythe Borrower shall use such proceeds to pay for the repair or replacement (it being agreed that a destroyed or damaged fitness center may be replaced at any site within five miles of the site of such fitness center) of the Collateral subject to such casualty; PROVIDED, FURTHER, however, that if an Event of Default or a Default shall have occurred and be continuing, or the proceeds of insurance from such casualty are reasonably expected to be equal to or greater than $3,500,000, Borrower shall not enter into any settlement agreement with the applicable insurance company without the prior written consent of Agent, which consent shall not be unreasonably withheld, and if a determination has been made to utilize such proceeds to replace or rebuild the Collateral affected by such casualty, the Collateral Agent shall release such proceeds to Borrower from time to time during the course of said reconstruction, repair or restoration, but not more often than once each thirty (30) day interval, in accordance with the Collateral Agent's customary practices for disbursements of construction loans, including, without limitation, customary conditions precedent to disbursement, PROVIDED that:
(i) at the time of any requested release of funds, no Event of Default or Default shall have occurred and be continuing (to the extent such Event of Default or Default is cured or waived, Borrower may again request the release of such funds);
(ii) if at the time of any such request by Borrower the cost of completing the repair, replacement or reconstruction, lien-free and ready for use, is in excess of insurance proceeds and other sums then in the Collateral Agent's hand pursuant to this Section 6.09, funds to cover such excess shall either (x) be promptly deposited by Borrower with the Collateral Agent and shall be disbursed under this Section 6.09 in the same manner as insurance proceeds or (y) to the extent some or all of such amount is available to be borrowed pursuant to Section 2.01(a) hereof, Borrower may, in lieu of the deposit set forth in subsection (x) above, elect to borrow such amounts as an Advance in accordance with the terms of Article II hereof when and as needed to complete the repair;
(iii) costs of administering this disbursement procedure shall be paid by Borrower out of funds on deposit with the Collateral Agent or otherwise;
(iv) when repair, replacement or reconstruction has been completed and paid for, all insurance proceeds then remaining in the Collateral Agent's hands shall be applied to the payment of the Obligations in accordance with Section 7.08(d) and Section 2.08(a);
(v) the Collateral Agent shall be satisfied that, upon release of such proceeds, it shall have for the ratable benefit of the Secured Creditors, a first priority perfected security interest on all property acquired (or to be acquired), but subject to Permitted Liens, with such proceeds; and
(vi) each release of funds shall be conditioned upon receipt by Agent of such documentation as Agent may reasonably require such as bills of sale, other evidences of ownership by the Borrower (or a Subsidiary) of property acquired with such proceeds, completion certificates, waivers of mechanic's liens, etc.
Appears in 1 contract
Samples: Credit Agreement (Bally Total Fitness Holding Corp)
Insurance and Condemnation. Maintain at all times substantially the same type of insurance coverage in respect of its properties and assets as that maintained in respect thereof immediately prior to the execution of this Agreement:
(a) in amounts not less than the amount of the coverage immediately prior to the execution of this Agreement for all insurance other than that described in clause (b) below including, without limitation, fire and extended coverage insurance for the full and insurable replacement value of all buildings and other improvements located on its properties and business interruption and workmen’s compensation insurance. All such insurance (other than workmen’s compensation insurance) relating to assets of Borrower or its Subsidiaries shall procure forname the Collateral Agent as loss payee (and in the case of each item of real property on which the Collateral Agent has a security interest, deliver mortgage loss payee) and an additional insured for the interests relating to the assets of Borrower and maintain its Subsidiaries, for the benefit of Lender the Collateral Agent and each Lender, as their interests may appear, and shall not be modified, reduced or cancelled in the absence of thirty (30) days prior written notice to the Collateral Agent. Borrower shall promptly notify Agent of any loss, damage, or destruction to the Collateral in excess of $2,000,000 for each such casualty, whether or not covered by insurance. The Collateral Agent is hereby authorized to collect all insurance proceeds directly. With respect to insurance proceeds arising from loss, damage or other casualty to any of the Collateral or any part thereof, such proceeds shall be applied as hereinafter provided. Destruction or damage to any real or personal property of Borrower or any Subsidiary which gives rise to insurance proceeds shall be deemed to be a disposition of such property for purposes of Section 7.08(d); provided, however, that if the total amount of the proceeds from such casualty is reasonably expected to be less than $5,000,000 and neither an Event of Default nor a Default shall have occurred and be continuing, Borrower shall have the exclusive right to negotiate a settlement regarding such proceeds with the applicable insurance company and the Collateral Agent shall promptly forward such proceeds to Borrower and the Borrower shall use such proceeds to pay for the repair or replacement (it being agreed that a destroyed or damaged fitness center may be replaced at any site within five miles of the site of such fitness center) of the Collateral subject to such casualty; provided, further, however, that if an Event of Default or a Default shall have occurred and be continuing, or the proceeds of insurance from such casualty are reasonably expected to be equal to or greater than $5,000,000, Borrower shall not enter into any settlement agreement with the applicable insurance company without the prior written consent of Agent, which consent shall not be unreasonably withheld, and if a determination has been made by Borrower, with the prior written consent of Agent, to utilize such proceeds to replace or rebuild the Collateral affected by such casualty, the Collateral Agent shall release such proceeds to Borrower from time to time during the term course of said reconstruction, repair or restoration, but not more often than once each thirty (30) day interval, in accordance with the Collateral Agent’s customary practices for disbursements of construction loans, including, without limitation, customary conditions precedent to disbursement, provided that:
(i) at the time of any requested release of funds, no Event of Default or Default shall have occurred and be continuing (to the extent such Event of Default or Default is cured or waived, Borrower may again request the release of such funds);
(ii) if at the time of any such request by Borrower the cost of completing the repair, replacement or reconstruction, lien-free and ready for use, is in excess of insurance proceeds and other sums then in the Collateral Agent’s hand pursuant to this Section 6.09, funds to cover such excess shall either (x) be promptly deposited by Borrower with the Collateral Agent and shall be disbursed under this Section 6.09 in the same manner as insurance proceeds or (y) to the extent some or all of such amount is available to be borrowed pursuant to Section 2.01(a) hereof, Borrower may, in lieu of the deposit set forth in subsection (x) above, elect to borrow such amounts as an Advance in accordance with the terms of Article II hereof when and as needed to complete the repair;
(iii) costs of administering this disbursement procedure shall be paid by Borrower out of funds on deposit with the Collateral Agent or otherwise;
(iv) when repair, replacement or reconstruction has been completed and paid for, all insurance proceeds then remaining in the Collateral Agent’s hands shall be applied to the payment of the Obligations in accordance with Section 7.08(d) and Section 2.13(a);
(v) the Collateral Agent shall be satisfied that, upon release of such proceeds, it shall have for the ratable benefit of the Secured Creditors, a first priority perfected security interest on all property acquired (or to be acquired), but subject to Permitted Liens, with such proceeds; and
(vi) each release of funds shall be conditioned upon receipt by Agent of such documentation as Agent may reasonably require such as bills of sale, other evidences of ownership by the Borrower (or a Subsidiary) of property acquired with such proceeds, completion certificates, waivers of mechanic’s liens, etc. The Collateral Agent shall, pending disbursement or application of funds in accordance with the terms of this InstrumentSection 6.09, originalhold any insurance proceeds (and other funds deposited with it pursuant to clause (ii) above) deposited with it in an interest bearing account as to which the Collateral Agent shall not be liable in any respect to Borrower for any investment results. Interest thereon shall be held and disposed of in the same manner as other monies held by the Collateral Agent under this Section 6.09. On each anniversary date of this Agreement, fully paid Borrower shall provide Agent with a summary of each insurance policy satisfactory to Agent reflecting the insurance coverage required under this Section 6.09 (together with complete copies of any insurance policies issued which Agent may request promptly after such request but not later than six months after such request). In the event of foreclosure of any mortgage or deed of trust in favor of Collateral Agent encumbering the Properties or transfer of title to the Properties in lieu of foreclosure, all right, title and interest of Borrower in and to any insurance policies then in force with respect to the Properties (other than liability policies of Borrower) shall pass to the purchaser, grantee or assignee. In the event of any taking of any portion of any of the Properties by condemnation, seizure or appropriation by any governmental authority which does not constitute an Event of Default hereunder, all awards or proceeds on account of said taking shall be collected and applied in the same manner and shall be subject to the same conditions precedent to the disbursement thereof as applicable to insurance proceeds under this Section 6.09. Notwithstanding the foregoing, the rights of the Agent and the Lenders under this paragraph (a) with respect to property and casualty insurance proceeds relating to loss, destruction or damage, or a taking of, real property (x) leased by the Borrower or any of its Subsidiaries or (y) which is subject to a mortgage lien which is prior to the lien of any Mortgage in favor of the Collateral Agent thereon, and for which in either case the Collateral Agent is named as loss payee, shall be subordinate to the rights, if any, of the owner of such insurance companies, in real property or the holder of such amounts, form and substance, insuring prior mortgage lien to the extent such parties owner or holder is also named as loss payee; and
(including Borrower and any contractor performing work upon the Premisesb) providing "all risk" permanent real and personal property in an amount equal to or greather not less than One Hundred Million Dollars ($100,000,000) for general liability coverage, including both bodily injury and property damage, on a per occurrence basis (the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises"Minimum Liability Coverage"), worker's compensationprovided, naming Lender as mortgagee and additional loss payee with respect however, that the Minimum Liability Coverage may be reduced from time to all property insurance and as an additional insured with respect time to all liability insurance except worker's compensation. At least ten a coverage limit of not less than Twenty-Five Million Dollars (10$25,000,000) on a per occurrence basis (the "Lowered Coverage") if, within thirty (30) days prior to the expiration date of any Minimum Liability Coverage policy, and thereafter within thirty (30) days after the end of each policy maintained pursuant to this section, a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing fiscal year of Borrower until the payment of all premiums required to keep such insurance in effect for the full term of such policy. At the request of LenderMinimum Liability Coverage is reinstated, Borrower shall provide evidence satisfactory delivers to Lender Agent a certificate signed by the chief operating officer of Borrower stating that all such insurance Borrower has obtained a lesser amount of coverage, setting forth the amount thereof, and that Borrower was unable to obtain Minimum Liability Coverage and was able to obtain general liability coverage only in the amount set forth in the Borrower’s certificate; provided, further, however, that the Lowered Coverage may be reduced from time to time to a coverage limit of not less than Twenty-Five Million Dollars ($25,000,000) on a "claims made" basis if, within thirty (30) days prior to the expiration of any Lowered Coverage policy and thereafter within thirty (30) days after the end of each fiscal year of Borrower until the Minimum Liability Coverage is in effect. If the Premises or any part thereof is damaged by fire or any other causereinstated, Borrower will give immediate written notice thereof delivers to Lender.
(b) Agent a certificate signed by the chief operating officer of Borrower shall notify Lender immediately upon obtaining knowledge stating that Borrower has obtained a lesser amount of coverage, setting forth the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu amount thereof) of the Premises or any part thereof.
(c) Lender shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage to the Premises or any portion thereof and to give receipts and acquittances therefor, and is hereby authorized, at its option, that Borrower was unable to adjust obtain Minimum Liability Coverage or compromise any casualty, condemnation or damage claim or cause of action, Lowered Coverage and was able to commence, appear obtain general liability coverage only in and prosecute, the amount set forth in its own or in the Borrower's name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all such claims and causes of action to Borrower and Lender jointly’s certificate.
Appears in 1 contract
Samples: Credit Agreement (Bally Total Fitness Holding Corp)
Insurance and Condemnation. Maintain at all times substantially the same type of insurance coverage in respect of its properties and assets as that maintained in respect thereof immediately prior to the execution of this Agreement: 66
(a) in amounts not less than the amount of the coverage immediately prior to the execution of this Agreement for all insurance other than that described in clause (b) below including, without limitation, fire and extended coverage insurance for the full and insurable replacement value of all buildings and other improvements located on its properties and business interruption and workmen’s compensation insurance. All such insurance (other than workmen’s compensation insurance and directors’ and officers’ insurance) relating to assets of Borrower or its Subsidiaries shall procure forname the Collateral Agent as loss payee (and in the case of each item of real property on which the Collateral Agent has a security interest, deliver mortgage loss payee) and an additional insured for the interests relating to the assets of Borrower and maintain its Subsidiaries, for the benefit of Lender the Collateral Agent and each Secured Creditor, as their interests may appear, and shall not be modified, reduced or cancelled in the absence of thirty (30) days prior written notice to the Collateral Agent. Borrower shall promptly notify Agent of any loss, damage, or destruction to the Collateral in excess of $2,000,000 for each such casualty, whether or not covered by insurance. The Collateral Agent is hereby authorized to collect all insurance proceeds directly. With respect to insurance proceeds arising from loss, damage or other casualty to any of the Collateral or any part thereof, such proceeds shall be applied as hereinafter provided. Destruction or damage to any real or personal property of Borrower or any Subsidiary which gives rise to insurance proceeds shall be deemed to be a disposition of such property for purposes of Section 7.08(d); provided, however, that if the total amount of the proceeds from such casualty is reasonably expected to be less than $5,000,000 and neither an Event of Default nor a Default shall have occurred and be continuing, Borrower shall have the exclusive right to negotiate a settlement regarding such proceeds with the applicable insurance company and the Collateral Agent shall promptly forward such proceeds to Borrower and the Borrower shall use such proceeds to pay for the repair or replacement (it being agreed that a destroyed or damaged fitness center may be replaced at any site within five miles of the site of such fitness center) of the Collateral subject to such casualty; provided, further, however, that if an Event of Default or a Default shall have occurred and be continuing, or the proceeds of insurance from such casualty are reasonably expected to be equal to or greater than $5,000,000, Borrower shall not enter into any settlement agreement with the applicable insurance company without the prior written consent of Agent, which consent shall not be unreasonably withheld, and if a determination has been made by Borrower, with the prior written consent of Agent, to utilize such proceeds to replace or rebuild the Collateral affected by such casualty, the Collateral Agent shall release such proceeds to Borrower from time to time during the term course of said reconstruction, repair or restoration, but not more often than once each thirty (30) day interval, in accordance with the Collateral Agent’s customary practices for disbursements of construction loans, including, without limitation, customary conditions precedent to disbursement, provided that:
(i) at the time of any requested release of funds, no Event of Default or Default shall have occurred and be continuing (to the extent such Event of Default or Default is cured or waived, Borrower may again request the release of such funds); 67
(ii) if at the time of any such request by Borrower the cost of completing the repair, replacement or reconstruction, lien-free and ready for use, is in excess of insurance proceeds and other sums then in the Collateral Agent’s hand pursuant to this Section 6.09, funds to cover such excess shall either (x) be promptly deposited by Borrower with the Collateral Agent and shall be disbursed under this Section 6.09 in the same manner as insurance proceeds or (y) to the extent some or all of such amount is available to be borrowed pursuant to Section 2.01(a) hereof, Borrower may, in lieu of the deposit set forth in subsection (x) above, elect to borrow such amounts as an Advance in accordance with the terms of Article II hereof when and as needed to complete the repair;
(iii) costs of administering this disbursement procedure shall be paid by Borrower out of funds on deposit with the Collateral Agent or otherwise;
(iv) when repair, replacement or reconstruction has been completed and paid for, all insurance proceeds then remaining in the Collateral Agent’s hands shall be applied, first, to the payment of the Term Advances in accordance with Sections 7.08(d) and 2.13(a) and, second, to the payment of the other Obligations in accordance with Section 7.08(d) and Section 2.13(a);
(v) the Collateral Agent shall be satisfied that, upon release of such proceeds, it shall have for the ratable benefit of the Secured Creditors, a first priority perfected security interest on all property acquired (or to be acquired), but subject to Permitted Liens, with such proceeds; and
(vi) each release of funds shall be conditioned upon receipt by Agent of such documentation as Agent may reasonably require such as bills of sale, other evidences of ownership by the Borrower (or a Subsidiary) of property acquired with such proceeds, completion certificates, waivers of mechanic’s liens, etc. The Collateral Agent shall, pending disbursement or application of funds in accordance with the terms of this InstrumentSection 6.09, originalhold any insurance proceeds (and other funds deposited with it pursuant to clause (ii) above) deposited with it in an interest bearing account as to which the Collateral Agent shall not be liable in any respect to Borrower for any investment results. Interest thereon shall be held and disposed of in the same manner as other monies held by the Collateral Agent under this Section 6.09. On each anniversary date of this Agreement, fully paid Borrower shall provide Agent with a summary of each insurance policy satisfactory to Agent reflecting the insurance coverage required under this Section 6.09 (together with complete copies of any insurance policies issued which Agent may request promptly after such request but not later than six months after such request). In the event of foreclosure of any mortgage or deed of trust in favor of Collateral Agent encumbering the Properties or transfer of title to the Properties in lieu of foreclosure, all right, title and interest of Borrower in and to any insurance policies then in force with respect to the Properties (other than liability policies of Borrower) shall pass to the purchaser, grantee or assignee. In the event of any taking of any portion of any of the Properties by condemnation, seizure or appropriation by any governmental authority which does not constitute an Event of Default hereunder, all awards or proceeds on 68 account of said taking shall be collected and applied in the same manner and shall be subject to the same conditions precedent to the disbursement thereof as applicable to insurance proceeds under this Section 6.09. Notwithstanding the foregoing, the rights of the Agent and the Lenders under this paragraph (a) with respect to property and casualty insurance proceeds relating to loss, destruction or damage, or a taking of, real property (x) leased by the Borrower or any of its Subsidiaries or (y) which is subject to a mortgage lien which is prior to the lien of any Mortgage in favor of the Collateral Agent thereon, and for which in either case the Collateral Agent is named as loss payee, shall be subordinate to the rights, if any, of the owner of such insurance companies, in real property or the holder of such amounts, form and substance, insuring prior mortgage lien to the extent such parties owner or holder is also named as loss payee; and
(including Borrower and any contractor performing work upon the Premisesb) providing "all risk" permanent real and personal property in an amount equal to or greather not less than Fifty Million Dollars ($50,000,000) for general liability coverage, including both bodily injury and property damage, on a per occurrence basis (the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises“Minimum Liability Coverage”), worker's compensationprovided, naming Lender as mortgagee and additional loss payee with respect however, that the Minimum Liability Coverage may be reduced from time to all property insurance and as an additional insured with respect time to all liability insurance except worker's compensation. At least ten a coverage limit of not less than Twenty-Five Million Dollars (10$25,000,000) on a per occurrence basis (the “Lowered Coverage”) if, within thirty (30) days prior to the expiration date of any Minimum Liability Coverage policy, and thereafter within thirty (30) days after the end of each policy maintained pursuant to this section, a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing fiscal year of Borrower until the payment of all premiums required to keep such insurance in effect for the full term of such policy. At the request of LenderMinimum Liability Coverage is reinstated, Borrower shall provide evidence satisfactory delivers to Lender Agent a certificate signed by the chief operating officer of Borrower stating that all such insurance Borrower has obtained a lesser amount of coverage, setting forth the amount thereof, and that Borrower was unable to obtain Minimum Liability Coverage and was able to obtain general liability coverage only in the amount set forth in the Borrower’s certificate; provided, further, however, that the Lowered Coverage may be reduced from time to time to a coverage limit of not less than Twenty-Five Million Dollars ($25,000,000) on a “claims made” basis if, within thirty (30) days prior to the expiration of any Lowered Coverage policy and thereafter within thirty (30) days after the end of each fiscal year of Borrower until the Minimum Liability Coverage is in effect. If the Premises or any part thereof is damaged by fire or any other causereinstated, Borrower will give immediate written notice thereof delivers to Lender.
(b) Agent a certificate signed by the chief operating officer of Borrower shall notify Lender immediately upon obtaining knowledge stating that Borrower has obtained a lesser amount of coverage, setting forth the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu amount thereof) of the Premises or any part thereof.
(c) Lender shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage to the Premises or any portion thereof and to give receipts and acquittances therefor, and is hereby authorized, at its option, that Borrower was unable to adjust obtain Minimum Liability Coverage or compromise any casualty, condemnation or damage claim or cause of action, Lowered Coverage and was able to commence, appear obtain general liability coverage only in and prosecute, the amount set forth in its own or in the Borrower's name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all such claims and causes of action to Borrower and Lender jointly’s certificate.
Appears in 1 contract
Samples: Credit Agreement (Bally Total Fitness Holding Corp)
Insurance and Condemnation. Maintain at all times substantially the same type of insurance coverage in respect of its properties and assets as that maintained in respect thereof immediately prior to the execution of this Agreement:
(a) in amounts not less than the amount of the coverage immediately prior to the execution of this Agreement for all insurance other than that described in clause (b) below including, without limitation, fire and extended coverage insurance for the full and insurable replacement value of all buildings and other improvements located on its properties and business interruption and workmen's compensation insurance. All such insurance (other than workmen's compensation insurance) relating to assets of Borrower or its Subsidiaries shall procure forname the Collateral Agent as loss payee (and in the case of each item of real property on which the Collateral Agent has a security interest, deliver mortgage loss payee) and an additional insured for the interests relating to the assets of Borrower and maintain its Subsidiaries, for the benefit of Lender during the term Collateral Agent and each Lender, as their interests may appear, and shall not be modified, reduced or cancelled in the absence of this Instrument, original, fully paid insurance policies issued by such insurance companies, in such amounts, form and substance, insuring such parties thirty (including Borrower and any contractor performing work upon the Premises) providing "all risk" permanent real and personal property in an amount equal to or greather than the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises), worker's compensation, naming Lender as mortgagee and additional loss payee with respect to all property insurance and as an additional insured with respect to all liability insurance except worker's compensation. At least ten (1030) days prior written notice to the expiration date of each policy maintained pursuant to this section, a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing the payment of all premiums required to keep such insurance in effect for the full term of such policyCollateral Agent. At the request of Lender, Borrower shall provide evidence satisfactory promptly notify Agent of any loss, damage, or destruction to Lender that the Collateral in excess of $2,000,000 for each such casualty, whether or not covered by insurance. The Collateral Agent is hereby authorized to collect all such insurance is in effectproceeds directly. If the Premises With respect to insurance proceeds arising from loss, damage or other casualty to any part thereof is damaged by fire or any other cause, Borrower will give immediate written notice thereof to Lender.
(b) Borrower shall notify Lender immediately upon obtaining knowledge of the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu thereof) of the Premises Collateral or any part thereof.
(c) Lender , such proceeds shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation applied as hereinafter provided. Destruction or damage to the Premises any real or personal property of Borrower or any portion thereof Subsidiary which gives rise to insurance proceeds shall be deemed to be a disposition of such property for purposes of Section 7.08(d); provided, however, that if the total amount of the proceeds from such casualty is reasonably expected to be less than $5,000,000 and neither an Event of Default nor a Default shall have occurred and be continuing, Borrower shall have the exclusive right to give receipts negotiate a settlement regarding such proceeds with the applicable insurance company and acquittances therefor, and is hereby authorized, at its option, to adjust or compromise any casualty, condemnation or damage claim or cause of action, to commence, appear in and prosecute, in its own or in Borrower's name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all the Collateral Agent shall promptly forward such claims and causes of action proceeds to Borrower and Lender jointlythe Borrower shall use such proceeds to pay for the repair or replacement (it being agreed that a destroyed or damaged fitness center may be replaced at any site within five miles of the site of such fitness center) of the Collateral subject to such casualty; provided, further, however, that if an Event of Default or a Default shall have occurred and be continuing, or the proceeds of insurance from such casualty are reasonably expected to be equal to or greater than $5,000,000, Borrower shall not enter into any settlement agreement with the applicable insurance company without the prior written consent of Agent, which consent shall not be unreasonably withheld, and if a determination has been made by Borrower, with the prior written consent of Agent, to utilize such proceeds to replace or rebuild the Collateral affected by such casualty, the Collateral Agent shall release such proceeds to Borrower from time to time during the course of said reconstruction, repair or restoration, but not more often than once each thirty (30) day interval, in accordance with the Collateral Agent's customary practices for disbursements of construction loans, including, without limitation, customary conditions precedent to disbursement, provided that:
(i) at the time of any requested release of funds, no Event of Default or Default shall have occurred and be continuing (to the extent such Event of Default or Default is cured or waived, Borrower may again request the release of such funds);
(ii) if at the time of any such request by Borrower the cost of completing the repair, replacement or reconstruction, lien-free and ready for use, is in excess of insurance proceeds and other sums then in the Collateral Agent's hand pursuant to this Section 6.09, funds to cover such excess shall either (x) be promptly deposited by Borrower with the Collateral Agent and shall be disbursed under this Section 6.09 in the same manner as insurance proceeds or (y) to the extent some or all of such amount is available to be borrowed pursuant to Section 2.01(a) hereof, Borrower may, in lieu of the deposit set forth in subsection (x) above, elect to borrow such amounts as an Advance in accordance with the terms of Article II hereof when and as needed to complete the repair;
(iii) costs of administering this disbursement procedure shall be paid by Borrower out of funds on deposit with the Collateral Agent or otherwise;
(iv) when repair, replacement or reconstruction has been completed and paid for, all insurance proceeds then remaining in the Collateral Agent's hands shall be applied to the payment of the Obligations in accordance with Section 7.08(d) and Section 2.13(a);
(v) the Collateral Agent shall be satisfied that, upon release of such proceeds, it shall have for the ratable benefit of the Secured Creditors, a first priority perfected security interest on all property acquired (or to be acquired), but subject to Permitted Liens, with such proceeds; and
(vi) each release of funds shall be conditioned upon receipt by Agent of such documentation as Agent may reasonably require such as bills of sale, other evidences of ownership by the Borrower (or a Subsidiary) of property acquired with such proceeds, completion certificates, waivers of mechanic's liens, etc.
Appears in 1 contract
Samples: Credit Agreement (Bally Total Fitness Holding Corp)
Insurance and Condemnation. (a) Borrower 2.3.1 Mortgagor shall procure for, deliver to and maintain for the benefit of Lender Mortgagee during the term of this InstrumentMortgage, original, fully paid insurance policies issued by such insurance companies, in such amounts, form and substance, insuring such parties (including Borrower Mortgagor and any contractor performing work upon the Premises) providing "all risk" permanent real and personal property in an amount equal with such expiration dates as required pursuant to or greather than the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises), worker's compensationCredit Agreement, naming Lender Mortgagee as mortgagee and additional loss payee with respect to all property insurance and Mortgagee as an additional insured with respect to all liability insurance. Mortgagor shall cause any builder’s risk insurance except worker's compensation. At least ten (10) days prior covering any improvements to the expiration date of each policy maintained pursuant Premises to this section, a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing the payment of all premiums required to keep such replaced by permanent insurance in effect for the full term promptly upon completion of such policyimprovements and without any lapse in coverage. At the request of LenderMortgagee, Borrower Mortgagor shall provide evidence satisfactory to Lender Mortgagee that all such insurance is in effect. If the Premises or any part thereof is damaged by fire or any other cause, Borrower Mortgagor will give immediate written notice thereof to LenderMortgagee.
(b) Borrower 2.3.2 Mortgagor shall notify Lender Mortgagee immediately upon obtaining knowledge of the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument Mortgage shall include any damage or taking by any governmental or quasi-quasi- governmental authority and any transfer by private sale in lieu thereof) of the Premises or any part thereof.
(c) Lender 2.3.3 Mortgagee shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage to the Premises or any portion thereof or to any other property of Mortgagor and to give receipts and acquittances therefor, and is hereby authorized, at its option, to adjust or compromise any casualty, condemnation or damage claim or cause of action, to commence, appear in and prosecute, in its own or in Borrower's Mortgagor’s name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all such claims and causes of action directly to Borrower Mortgagee, instead of to Mortgagor and Lender Mortgagee jointly. In the event any insurance company, condemning authority or other party fails to disburse directly and solely to Mortgagee to the extent herein required but disburses instead either solely to Mortga gor or to Mortgagor and Mortgagee jointly, Xxxxxxxxx agrees immediately to endorse and transfer such payments to Mortgagee. Upon the failure of Mortgagor to endorse and transfer such payments as aforesaid, Mortgagee may execute such endorsements or transfers for and in the name of Xxxxxxxxx and Xxxxxxxxx hereby irrevocably appoints Mortgagee as Xxxxxxxxx’s agent and attorney- in-fact so
2.3.4 Subject to the application of insurance proceeds as permitted pursuant to Subsection 2.3.3, after deducting from any condemnation, insurance or other proceeds received by Mortgagee all expenses of Mortgagee incurred in the collection and administration of such sums, including attorney’s fees, Mortgagee may, at its option, either (a) apply such net proceeds to the payment of the Secured Obligations, whether or not due and in whatever order Mortgagee elects or to any other purposes for which Mortgagee is entitled to advance funds under this Mortgage, all without affecting the liens and security interests created by this Mortgage or (b) apply the net proceeds thereof to the restoration or repair of the property damaged provided the following conditions are met:
(i) there exists no Default (as hereinafter defined) or any event or condition which, upon the giving of notice or the passage of time, or both, would constitute a Default;
(ii) Xxxxxxxxx presents evidence satisfactory to Mortgagee that such net proceeds, together with available equity funds, if needed, shall be sufficient to completely restore or repair the damaged property as well as to maintain relevant compliance with the financial and other covenants of Mortgagor in the Credit Agreement; and
(iii) Mortgagee will not incur any liability to any other person as a result of such use of such net proceeds.
2.3.5 In the event of the foreclosure of this Mortgage or any other transfer of title to the Premises in extinguishment or partial extinguishment of the Secured Obligations, all right, title and interest of Mortgagor in and to all insurance policies then in force (including any premiums paid in advance), all insurance proceeds, all condemnation proceeds and awards and all claims and judgments for damage to the Premises or any portion thereof shall pass to the purchaser or Mortgagee, and said purchaser or Mortgagee shall have the right to receive all awards, proceeds or payments relating thereto to the extent of any unpaid Secured Obligations following such sale, with legal interest thereon, whether or not a deficiency judgment on this Mortgage or the Secured Obligations shall have been sought or recovered, and to the extent of reasonable counsel fees, costs and disbursements incurred by Mortgagee in connection with the collection of such award, proceeds or payments.
Appears in 1 contract
Samples: Mortgage and Security Agreement
Insurance and Condemnation. (ai) Without limiting Borrower's obligations under any other provision of any other Loan Document, Borrower shall procure forcomply, deliver and shall diligently enforce all other REA Parties' obligations to comply, with the terms, conditions and maintain for provisions of the benefit REA relating to insurance (including, without limitation Insurance Policies), Casualties, Takings and restoration or repair after a Casualty or Taking. Promptly after receipt therefor by Borrower, Borrower shall furnish to the Administrative Agent copies of Lender during each notice or other written material relating to insurance (including, without limitation Insurance Policies), Casualties, Takings and restoration or repair after a Casualty or Taking that Borrower receives. Additionally, Borrower shall obtain and maintain, promptly after request therefor by the term of this InstrumentAdministrative Agent, originalsuch other insurance and in such amounts as the Administrative Agent from time to time may reasonably request, fully paid insurance policies issued by provided that such insurance companiesand such amounts are then commonly insured against with respect to property similarly situated (or if there is no property similarly situated, for other large commercial buildings located in Las Vegas, Nevada and/or Xxxxx County, Nevada and do not violate the provisions of the REA). All such other insurance shall be obtained under valid and enforceable policies, in such amountsforms as may from time to time be reasonably satisfactory to the Administrative Agent, form issued by financially sound and substanceresponsible insurance companies that are reasonably acceptable to the Administrative Agent. Prior to the Closing Date, insuring such parties Borrower furnished to the Syndication Agent all Insurance Policies then required to be in effect under the REA. Not less than fifteen (including Borrower and any contractor performing work upon the Premises) providing "all risk" permanent real and personal property in an amount equal to or greather than the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises), worker's compensation, naming Lender as mortgagee and additional loss payee with respect to all property insurance and as an additional insured with respect to all liability insurance except worker's compensation. At least ten (1015) days prior to the expiration date dates of such Insurance Policies (and any replacements thereof), the Borrower shall furnish to the Collateral Agent certificates of insurance marked "premium paid" or accompanied by evidence satisfactory to the Administrative Agent of payment of the premiums due thereunder (the "Insurance Premiums"), which insurance certificates shall also evidence the fact that each policy maintained pursuant such Insurance Policy shall have been renewed; provided that if, at any time, any Insurance Policy shall be amended, supplemented or otherwise modified or replaced (other than any modification that merely extends the expiration date), then the Borrower shall furnish to this sectionthe Collateral Agent for the benefit of the Lenders a copy of such amendment, supplement or modification or replacement Insurance Policy, as applicable. After the occurrence of an Event of Default, with respect to any matter relating to insurance (including, without limitation Insurance Policies), Casualties, Takings and restoration or repair after a Casualty or Taking, at the Administrative Agent's election, Borrower shall act in accordance with the directions of the Administrative Agent (as directed by the Required Lenders) or the Administrative Agent (at the direction of the Required Lenders) shall be entitled to act in lieu of Borrower with respect to any such matter.
(ii) The Borrower shall not obtain separate insurance concurrent in form or contributing in the event of loss with that required in Section 5.1(X)(i) to be furnished by, or which may be reasonably required to be furnished by, the Borrower.
(iii) All Policies of insurance provided for or contemplated by Section 5.1(X)(i)(other than property insurance) shall name the Collateral Agent (for the benefit of the Lenders), the Lenders, their respective successors and assigns (including any servicers, trustees or other designees of the Collateral Agent), and the Borrower as the insured or additional insured, as their respective interests may appear.
(iv) The Borrower shall furnish to the Administrative Agent and to the Collateral Agent, within thirty (30) days of reasonable request therefor by the Administrative Agent (which request shall not be made more than once during any calendar year), a renewal Borrower's Certificate as to the amounts of insurance maintained in compliance herewith, of the risks covered by such insurance and of the insurance company or replacement thereof satisfactory to Lender companies which carry such insurance.
(v) If all or any material portion of the Trust Property and/or the Common Facilities shall be delivered damaged or destroyed, in whole or in part, by fire or other casualty, or other loss with respect to Lenderany material portion of the Trust Property and/or the Common Facilities shall occur, together with receipts evidencing then the Borrower shall give prompt notice thereof to the Agents. The Borrower hereby assigns to the Collateral Agent, for the benefit of the Lenders, as collateral security for the Indebtedness and the rest of the Obligations (as defined in the Deed of Trust), all Insurance Proceeds that the Borrower may be entitled to receive under the REA.
(vi) Any Insurance Proceeds of any applicable property insurance that, under the REA, Borrower or the Collateral Agent is entitled to retain (and not apply to repair or restoration of the Trust Property) shall be immediately paid over to the Collateral Agent to be applied, at the option of the Required Lenders, in their sole discretion, to the payment of all premiums required the Indebtedness (in such order and in such manner as the Required Lenders shall determine in their sole discretion and whether or not then due and payable); provided that if the Required Lenders elect not to keep apply such Insurance Proceeds to the Indebtedness, then the Collateral Agent shall pay such Insurance Proceeds over to the Borrower. All Insurance Proceeds from time to time held by the Collateral Agent for the benefit of the Lenders shall constitute additional security for the Indebtedness. Any proceeds of any business interruption, business income, rental loss or similar insurance (collectively, "Business Income Insurance") shall be paid over to, and held by, the Collateral Agent and shall be applied to the Indebtedness payable hereunder and under the other Loan Documents from time to time; provided that, so long as no Event of Default shall exist, such insurance proceeds shall be equitably apportioned, as reasonably determined by the Administrative Agent, between the Indebtedness and other amounts that are payable in effect for respect of the full term use, operation and maintenance of the Collateral in accordance with the terms of the Loan Documents (and the portion of such policy. At insurance proceeds allocated by the request Administrative Agent to such other amounts that are payable in respect of Lenderthe use, operation and maintenance of the Collateral in accordance with the terms of the Loan Documents shall be paid to Borrower and shall provide evidence satisfactory be applied by Borrower to Lender pay such other amounts); provided, further, that all nothing herein contained shall be deemed to relieve the Borrower of its obligations to pay the Indebtedness on the respective dates of payment provided for in the Loan Documents, except to the extent such insurance is in effect. If amounts are actually paid out of the Premises or any part thereof is damaged by fire or any other cause, Borrower will give immediate written notice thereof to Lenderproceeds of such Business Income Insurance.
(bvii) Borrower shall notify Lender immediately upon obtaining knowledge of In the institution, or the proposed, contemplated or threatened institution, event of any action for Casualty or any Taking affecting the taking through condemnation (which term when used in this Instrument shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu thereof) of the Premises Trust Property or any part thereof, Borrower shall promptly commence and diligently prosecute the repair and restoration of the Trust Property as nearly as possible to the condition, character and value of the Trust Property immediately prior to such Casualty or Taking (in the case of a Taking, to the extent practicable)(each, a "Restoration"), with such alterations as may be approved by the Administrative Agent (to the extent that the Administrative Agent's approval of such alterations shall be required under the Loan Documents) and otherwise in accordance with all applicable Legal Requirements, Insurance Requirements, plans and specifications approved by the Administrative Agent (to the extent that the Administrative Agent's approval thereto is required under the Loan Documents), the other provisions of the Loan Documents and the REA. Borrower shall make such Restorations as aforesaid regardless of whether any Insurance Proceeds (or any other insurance proceeds) or any Condemnation Awards are received by the Borrower or any REA Owner and whether such Insurance Proceeds (or such insurance proceeds) or Condemnation Awards, if received, are sufficient to pay for the costs of such Restoration. The Borrower shall pay all costs (and if required by the Administrative Agent, the Borrower, prior to commencing such repairs and restoration, shall deposit the total thereof with the Collateral Agent (for the benefit of the Lenders)) or provide a letter of credit or other security, in amounts, form and substance reasonably satisfactory to the Administrative Agent, securing the Borrower's obligations to pay such costs) of such repairs and restoration in excess of the Insurance Proceeds made available to Borrower pursuant to the REA.
(cviii) Lender The Administrative Agent may retain, on behalf of the Lenders, at the Borrower's cost, an independent consulting engineer selected by the Administrative Agent (the "Casualty Consultant") to inspect work in connection with any Restoration as such Restoration progresses and to review plans and specifications as provided below; provided that, if no Event of Default shall then exist, the Administrative Agent shall obtain the Borrower's consent to the compensation to be paid to such Casualty Consultant (which consent shall not be unreasonably withheld or delayed).
(ix) If, immediately after completion of any Restoration, the Trust Property will be, in all material respects, the same as it was immediately prior to the Casualty or Taking in question, then the Administrative Agent shall have no approval rights with respect to any plans and specifications relating thereto. Otherwise, the Borrower shall follow the procedures set forth in the Loan Documents with respect to Renovations (as if such Restoration were a Renovation); provided that, to the extent that the Administrative Agent's approval of the plans and specifications relating to the Restoration in question is required hereunder, the Administrative Agent shall be entitled to engage the Casualty Consultant to review such plans and specifications. The Collateral Agent, while an Event of Default shall exist, shall have the use of the plans and specifications and all compensationPermits required or obtained in connection with the Restoration. All reasonable costs and expenses incurred by the Administrative Agent and/or the Collateral Agent in connection with making Insurance Proceeds or Condemnation Awards available for the Restoration (including, awards without limitation, reasonable counsel fees and disbursements and the Casualty Consultant's fees and expenses), shall be paid by the Borrower.
(x) Without limiting any other payments arising rights or remedies of the Agents and Lenders under the Loan Documents (or at law or in equity), with respect to any Taking ("consensual" or otherwise) described on Schedule I attached hereto which Borrower, under applicable Legal Requirements, shall not be prohibited from any casualtycontesting, condemnation or damage to the Premises or any portion thereof and to give receipts and acquittances therefor, and is hereby authorized, at its option, to adjust or compromise any casualty, condemnation or damage claim or cause of action, Administrative Agent shall be entitled to commence, appear in and prosecute, in its own or in Borrower's nameand/or participate in, any action or proceeding relating to such Taking if the Administrative Agent has reason to believe that (i) such Taking is likely to cause a Material Adverse Effect and (ii) Borrower is not diligently contesting such Taking in good faith and through appropriate means. Additionally, the Administrative Agent, if it so elects, shall be entitled to participate in any casualtyaction or proceeding relating to any other Taking. The Collateral Agent is hereby irrevocably appointed as the Borrower's attorney-in-fact, condemnation coupled with an interest, with exclusive power to collect, receive and retain any Condemnation Proceeds for any Taking (in accordance with, if no Event of Default shall then exist, the directions of the Administrative Agent, or, if an Event of Default shall then exist, the written directions of the Required Lenders).
(xi) The Borrower shall promptly give the Agents written notice of the actual or damage claim threatened commencement of any proceeding for a Taking and shall deliver to the Agents copies of any and all papers served in connection with such proceedings. The Collateral Agent is hereby irrevocably appointed as the Borrower's attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any Condemnation Proceeds for said Taking which the Trustee is not entitled to collect, receive and/or retain, as applicable, under the REA (in accordance with, if no Event of Default shall then exist, the directions of the Administrative Agent, or, if an Event of Default shall then exist, the written directions of the Required Lenders). Notwithstanding any Taking or Casualty, the Borrower shall continue to pay the Indebtedness at the time and in the manner provided for in this Agreement, the Notes, the Deed of Trust and the other Loan Documents and the Indebtedness shall not be reduced, if at all, unless and until any Insurance Proceeds or Condemnation Proceeds therefor shall have been actually received and applied by the Collateral Agent or any Lender to the payment of the Indebtedness. The Borrower shall cause all Condemnation Proceeds to which it is entitled and which is not, under the terms of actionthe REA, required to be paid to the Trustee, to be paid directly to the Collateral Agent (for the benefit of the Lenders) and the Borrower hereby irrevocably assigns to the Collateral Agent (for the benefit of the Lenders) all of Borrower's right, title and interest in and to any Condemnation Proceeds paid prior to payment and performance of all of Indebtedness and all obligations under the Loan Documents; provided that if the Required Lenders elect not to apply such Condemnation Proceeds to the Indebtedness, then the Collateral Agent shall pay such Insurance Proceeds over the Borrower.
(xii) If the Trust Property is sold, through foreclosure, a deed in lieu of foreclosure or other exercise of remedies by any Agent or Lender prior to the receipt by the Collateral Agent of any such Condemnation Proceeds or any Insurance Proceeds, whether or not a deficiency judgment on any Note shall have been sought, recovered or denied, the Collateral Agent shall have the right to have reserved, and at the direction of the Required Lenders, shall reserve, in any foreclosure decree a right to settle receive said award or compromise payment, or a portion thereof sufficient to pay the Indebtedness. In no case shall any claim such application reduce or cause of action in connection therewith. Each insurance companypostpone any payments otherwise required pursuant to the this Agreement, condemning authority or other party is hereby authorized and directed to make than the final payment for all such claims and causes of action to Borrower and Lender jointlyunder the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Las Vegas Sands Inc)
Insurance and Condemnation. Maintain at all times substantially the same type of insurance coverage in respect of its properties and assets as that maintained in respect thereof immediately prior to the execution of this Agreement:
(a) in amounts not less than the amount of the coverage immediately prior to the execution of this Agreement for all insurance other than that described in clause (b) below including, without limitation, fire and extended coverage insurance for the full and insurable replacement value of all buildings and other improvements located on its properties and business interruption and workmen’s compensation insurance. All such insurance (other than workmen’s compensation insurance) relating to assets of Borrower or its Subsidiaries shall procure forname the Collateral Agent as loss payee (and in the case of each item of real property on which the Collateral Agent has a security interest, deliver mortgage loss payee) and an additional insured for the interests relating to the assets of Borrower and maintain its Subsidiaries, for the benefit of Lender the Collateral Agent and each Secured Creditor, as their interests may appear, and shall not be modified, reduced or cancelled in the absence of thirty (30) days prior written notice to the Collateral Agent. Borrower shall promptly notify Agent of any loss, damage, or destruction to the Collateral in excess of $2,000,000 for each such casualty, whether or not covered by insurance. The Collateral Agent is hereby authorized to collect all insurance proceeds directly. With respect to insurance proceeds arising from loss, damage or other casualty to any of the Collateral or any part thereof, such proceeds shall be applied as hereinafter provided. Destruction or damage to any real or personal property of Borrower or any Subsidiary which gives rise to insurance proceeds shall be deemed to be a disposition of such property for purposes of Section 7.08(d); provided, however, that if the total amount of the proceeds from such casualty is reasonably expected to be less than $5,000,000 and neither an Event of Default nor a Default shall have occurred and be continuing, Borrower shall have the exclusive right to negotiate a settlement regarding such proceeds with the applicable insurance company and the Collateral Agent shall promptly forward such proceeds to Borrower and the Borrower shall use such proceeds to pay for the repair or replacement (it being agreed that a destroyed or damaged fitness center may be replaced at any site within five miles of the site of such fitness center) of the Collateral subject to such casualty; provided, further, however, that if an Event of Default or a Default shall have occurred and be continuing, or the proceeds of insurance from such casualty are reasonably expected to be equal to or greater than $5,000,000, Borrower shall not enter into any settlement agreement with the applicable insurance company without the prior written consent of Agent, which consent shall not be unreasonably withheld, and if a determination has been made by Borrower, with the prior written consent of Agent, to utilize such proceeds to replace or rebuild the Collateral affected by such casualty, the Collateral Agent shall release such proceeds to Borrower from time to time during the term course of said reconstruction, repair or restoration, but not more often than once each thirty (30) day interval, in accordance with the Collateral Agent’s customary practices for disbursements of construction loans, including, without limitation, customary conditions precedent to disbursement, provided that:
(i) at the time of any requested release of funds, no Event of Default or Default shall have occurred and be continuing (to the extent such Event of Default 65 or Default is cured or waived, Borrower may again request the release of such funds);
(ii) if at the time of any such request by Borrower the cost of completing the repair, replacement or reconstruction, lien-free and ready for use, is in excess of insurance proceeds and other sums then in the Collateral Agent’s hand pursuant to this Section 6.09, funds to cover such excess shall either (x) be promptly deposited by Borrower with the Collateral Agent and shall be disbursed under this Section 6.09 in the same manner as insurance proceeds or (y) to the extent some or all of such amount is available to be borrowed pursuant to Section 2.01(a) hereof, Borrower may, in lieu of the deposit set forth in subsection (x) above, elect to borrow such amounts as an Advance in accordance with the terms of Article II hereof when and as needed to complete the repair;
(iii) costs of administering this disbursement procedure shall be paid by Borrower out of funds on deposit with the Collateral Agent or otherwise;
(iv) when repair, replacement or reconstruction has been completed and paid for, all insurance proceeds then remaining in the Collateral Agent’s hands shall be applied to the payment of the Obligations in accordance with Section 7.08(d) and Section 2.13(a);
(v) the Collateral Agent shall be satisfied that, upon release of such proceeds, it shall have for the ratable benefit of the Secured Creditors, a first priority perfected security interest on all property acquired (or to be acquired), but subject to Permitted Liens, with such proceeds; and
(vi) each release of funds shall be conditioned upon receipt by Agent of such documentation as Agent may reasonably require such as bills of sale, other evidences of ownership by the Borrower (or a Subsidiary) of property acquired with such proceeds, completion certificates, waivers of mechanic’s liens, etc. The Collateral Agent shall, pending disbursement or application of funds in accordance with the terms of this InstrumentSection 6.09, originalhold any insurance proceeds (and other funds deposited with it pursuant to clause (ii) above) deposited with it in an interest bearing account as to which the Collateral Agent shall not be liable in any respect to Borrower for any investment results. Interest thereon shall be held and disposed of in the same manner as other monies held by the Collateral Agent under this Section 6.09. On each anniversary date of this Agreement, fully paid Borrower shall provide Agent with a summary of each insurance policy satisfactory to Agent reflecting the insurance coverage required under this Section 6.09 (together with complete copies of any insurance policies issued which Agent may request promptly after such request but not later than six months after such request). In the event of foreclosure of any mortgage or deed of trust in favor of Collateral Agent encumbering the Properties or transfer of title to the Properties in lieu of foreclosure, all right, title and interest of Borrower in and to any insurance policies then in force with respect to the Properties (other than liability policies of Borrower) shall pass to the purchaser, grantee or assignee. In the event of any taking of any portion of any of 66 the Properties by condemnation, seizure or appropriation by any governmental authority which does not constitute an Event of Default hereunder, all awards or proceeds on account of said taking shall be collected and applied in the same manner and shall be subject to the same conditions precedent to the disbursement thereof as applicable to insurance proceeds under this Section 6.09. Notwithstanding the foregoing, the rights of the Agent and the Lenders under this paragraph (a) with respect to property and casualty insurance proceeds relating to loss, destruction or damage, or a taking of, real property (x) leased by the Borrower or any of its Subsidiaries or (y) which is subject to a mortgage lien which is prior to the lien of any Mortgage in favor of the Collateral Agent thereon, and for which in either case the Collateral Agent is named as loss payee, shall be subordinate to the rights, if any, of the owner of such insurance companies, in real property or the holder of such amounts, form and substance, insuring prior mortgage lien to the extent such parties owner or holder is also named as loss payee; and
(including Borrower and any contractor performing work upon the Premisesb) providing "all risk" permanent real and personal property in an amount equal to or greather not less than One Hundred Million Dollars ($100,000,000) for general liability coverage, including both bodily injury and property damage, on a per occurrence basis (the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises“Minimum Liability Coverage”), worker's compensationprovided, naming Lender as mortgagee and additional loss payee with respect however, that the Minimum Liability Coverage may be reduced from time to all property insurance and as an additional insured with respect time to all liability insurance except worker's compensation. At least ten a coverage limit of not less than Twenty-Five Million Dollars (10$25,000,000) on a per occurrence basis (the “Lowered Coverage”) if, within thirty (30) days prior to the expiration date of any Minimum Liability Coverage policy, and thereafter within thirty (30) days after the end of each policy maintained pursuant to this section, a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing fiscal year of Borrower until the payment of all premiums required to keep such insurance in effect for the full term of such policy. At the request of LenderMinimum Liability Coverage is reinstated, Borrower shall provide evidence satisfactory delivers to Lender Agent a certificate signed by the chief operating officer of Borrower stating that all such insurance Borrower has obtained a lesser amount of coverage, setting forth the amount thereof, and that Borrower was unable to obtain Minimum Liability Coverage and was able to obtain general liability coverage only in the amount set forth in the Borrower’s certificate; provided, further, however, that the Lowered Coverage may be reduced from time to time to a coverage limit of not less than Twenty-Five Million Dollars ($25,000,000) on a “claims made” basis if, within thirty (30) days prior to the expiration of any Lowered Coverage policy and thereafter within thirty (30) days after the end of each fiscal year of Borrower until the Minimum Liability Coverage is in effect. If the Premises or any part thereof is damaged by fire or any other causereinstated, Borrower will give immediate written notice thereof delivers to Lender.
(b) Agent a certificate signed by the chief operating officer of Borrower shall notify Lender immediately upon obtaining knowledge stating that Borrower has obtained a lesser amount of coverage, setting forth the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu amount thereof) of the Premises or any part thereof.
(c) Lender shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage to the Premises or any portion thereof and to give receipts and acquittances therefor, and is hereby authorized, at its option, that Borrower was unable to adjust obtain Minimum Liability Coverage or compromise any casualty, condemnation or damage claim or cause of action, Lowered Coverage and was able to commence, appear obtain general liability coverage only in and prosecute, the amount set forth in its own or in the Borrower's name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all such claims and causes of action to Borrower and Lender jointly’s certificate.
Appears in 1 contract
Samples: Credit Agreement (Bally Total Fitness Holding Corp)
Insurance and Condemnation. (a) Borrower shall procure for, deliver to Lender may be a named insured on any fire and maintain for the benefit of Lender during the term of this Instrument, original, fully paid other hazard insurance policies issued carried by Lessee and covering the Premises. All proceeds of any such insurance companies, in such amounts, form and substance, insuring such parties (including Borrower and any contractor performing work upon the Premises) providing "all risk" permanent real and personal property in an amount equal to or greather than the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises), worker's compensation, naming Lender as mortgagee and additional loss payee with respect to all property insurance and as an additional insured with respect to all liability insurance except worker's compensation. At least ten (10) days prior to the expiration date of each policy maintained pursuant to this section, a renewal or replacement thereof satisfactory to Lender policies shall be delivered to Lenderheld by Lessor, together with receipts evidencing the payment of all premiums required to keep such insurance in effect for the full term of such policy. At or at the request of Lender, Borrower shall provide evidence by a trust company satisfactory to Lessor and Lender. In the event that at any time prior to expiration of the term of the Lease there shall be a partial or total destruction of the buildings and improvements then on the Premises from any cause, neither Lessor nor Lessee shall have the right to terminate the Lease, but Lessee shall diligently restore and rehabilitate said buildings and improvements pursuant to plans and specifications approved by Lessor and Lender that in writing, which approval shall not be unreasonably withheld or delayed, and, except as hereinafter provided, all proceeds of all property damage insurance shall be disbursed to Lessee upon such terms as Lessor and Lender may agree, for the purpose of restoring and rehabilitating said buildings and improvements. Should the proceeds of such insurance is exceed the cost of such restoration and rehabilitation, the balance shall be paid to Lender to be credited by Lender as a payment on account of the Loan, and the remaining balance, if any, shall be paid in effectaccordance with the Lease. If Proceeds of any business or rental interruption insurance carried by Lessee with respect to the Premises or shall be applied first to any part thereof unpaid obligations of Lessee under the Lease, then to any unpaid obligations under the Leasehold Mortgage and any remaining balance may be paid to Lessee. In the event that any portion of the Premises is damaged taken in condemnation, no election to terminate the Lease by fire or Lessee may be made without the prior written consent of Lender. In the event of such condemnation, any other cause, Borrower will give immediate written notice thereof awards which under the provisions of the Lease are payable to Lessee shall be payable to Lender.
(b) Borrower shall notify Lender immediately upon obtaining knowledge of the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu thereof) of the Premises or any part thereof.
(c) Lender shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage to the Premises or any portion thereof and to give receipts and acquittances therefor, and is hereby authorized, at its option, to adjust or compromise any casualty, condemnation or damage claim or cause of action, to commence, appear in and prosecute, in its own or in Borrower's name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all such claims and causes of action to Borrower and Lender jointly.
Appears in 1 contract
Samples: Ground Lease (Tibco Software Inc)
Insurance and Condemnation. (a) Borrower 2.3.1 Mortgagor shall procure for, deliver to and maintain for the benefit of Lender Mortgagee during the term of this InstrumentMortgage, original, fully paid insurance policies issued by such insurance companies, in such amounts, form and substance, insuring such parties (including Borrower Mortgagor and any contractor performing work upon the Premises) providing "all risk" permanent real and personal property in an amount equal with such expiration dates as required pursuant to or greather than the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises), worker's compensationCredit Agreement, naming Lender Mortgagee as mortgagee and additional loss payee with respect to all property insurance and Mortgagee as an additional insured with respect to all liability insurance. Mortgagor shall cause any builder’s risk insurance except worker's compensation. At least ten (10) days prior covering any improvements to the expiration date of each policy maintained pursuant Premises to this section, a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing the payment of all premiums required to keep such replaced by permanent insurance in effect for the full term promptly upon completion of such policyimprovements and without any lapse in coverage. At the request of LenderMortgagee, Borrower Mortgagor shall provide evidence satisfactory to Lender Mortgagee that all such insurance is in effect. If the Premises or any part thereof is damaged by fire or any other cause, Borrower Mortgagor will give immediate written notice thereof to LenderMortgagee.
(b) Borrower 2.3.2 Mortgagor shall notify Lender Mortgagee immediately upon obtaining knowledge of the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument Mortgage shall include any damage or taking by any governmental or quasi-quasi- governmental authority and any transfer by private sale in lieu thereof) of the Premises or any part thereof.
(c) Lender 2.3.3 Mortgagee shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage to the Premises or any portion thereof or to any other property of Mortgagor and to give receipts and acquittances therefor, and is hereby authorized, at its option, to adjust or compromise any casualty, condemnation or damage claim or cause of action, to commence, appear in and prosecute, in its own or in Borrower's Mortgagor’s name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all such claims and causes of action directly to Borrower Mortgagee, instead of to Mortgagor and Lender Mortgagee jointly. In the event any insurance company, condemning authority or other party fails to disburse directly and solely to Mortgagee to the extent herein required but disburses instead either solely to Mortgagor or to Mortgagor and
2.3.4 Subject to the application of insurance proceeds as permitted pursuant to Subsection 2.3.3,2.3.3 hereof, after deducting from any condemnation, insurance or other proceeds received by Mortgagee all expenses of Mortgagee incurred in the collection and administration of such sums, including attorney’s fees, Mortgagee may, at its option, either (a) apply such net proceeds to the payment of the Secured Obligations, whether or not due and in whatever order Mortgagee elects or to any other purposes for which Mortgagee is entitled to advance funds under this Mortgage, all without affecting the liens and security interests created by this Mortgage or (b) apply the net proceeds thereof to the restoration or repair of the property damaged provided the following conditions are met:
(i) there exists no Default (as hereinafter defined) or any event or condition which, upon the giving of notice or the passage of time, or both, would constitute a Default;
(ii) Mortgagor presents evidence satisfactory to Mortgagee that such net proceeds, together with available equity funds, if needed, shall be sufficient to completely restore or repair the damaged property as well as to maintain relevant compliance with the financial and other covenants of Mortgagor in the Credit Agreement; and
(iii) Mortgagee will not incur any liability to any other person as a result of such use of such net proceeds.
2.3.5 In the event of the foreclosure of this Mortgage or any other transfer of title to the Premises in extinguishment or partial extinguishment of the Secured Obligations, all right, title and interest of Mortgagor in and to all insurance policies then in force (including any premiums paid in advance), all insurance proceeds, all condemnation proceeds and awards and all claims and judgments for damage to the Premises or any portion thereof shall pass to the purchaser or Mortgagee, and said purchaser or Mortgagee shall have the right to receive all awards, proceeds or payments relating thereto to the extent of any unpaid Secured Obligations following such sale, with legal interest thereon, whether or not a deficiency judgment on this
Appears in 1 contract
Samples: Mortgage and Security Agreement
Insurance and Condemnation. (a) Borrower shall procure for, deliver to and maintain for the benefit of Lender during the term of this InstrumentMortgage, original, certificates evidencing issuance of fully paid insurance policies issued by such insurance companies, in such amounts, form and substance, insuring such parties (including Borrower and any contractor performing work upon the Premises) providing "all risk" permanent real and personal property in an amount equal to with such expiration dates as may be required by the Securities Purchase Agreement or greather than reasonably required by the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises), worker's compensationLender, naming Lender as mortgagee and additional loss payee with respect to all property insurance and as an additional insured with respect to all liability insurance except worker's compensation. Borrower shall cause any builder's risk insurance covering any improvements to the Premises to be replaced by permanent insurance promptly upon completion of such improvements and without any lapse in coverage. At least ten thirty (1030) days prior to the expiration date of each policy maintained pursuant to this section, certificates evidencing a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing the payment of all premiums required to keep such insurance in effect for the full term of such policy. At the reasonable request of Lender, Borrower shall provide evidence satisfactory to Lender that all such insurance is in effect. If the Premises or any part thereof is damaged by fire or any other cause, Borrower will give immediate written notice thereof to Lender.
(b) Borrower shall notify Lender immediately upon obtaining knowledge of the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument Mortgage shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu thereof) of the Premises or any part thereof.
(c) Lender shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage to the Premises or any portion thereof and to give receipts and acquittances therefor, and is hereby authorized, at its option, to adjust or compromise any casualty, condemnation or damage claim or cause of action, to commence, appear in and prosecute, in its own or in Borrower's name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all such claims and causes of action directly to Lender, instead of to Borrower and Lender jointly. In the event any insurance company, condemning authority or other party fails to disburse directly and solely to Lender but disburses instead either solely to Borrower or to Borrower and Lender jointly, Borrower agrees immediately to endorse and transfer such payments to Lender. Upon the failure of Borrower to endorse and transfer such payments as aforesaid, Lender may execute such endorsements or transfers for and in the name of Borrower and Borrower hereby irrevocably appoints Lender as Borrower's agent and attorney-in-fact so to do. Lender shall not be responsible for any failure to collect any insurance proceeds, any condemnation award or any other payment relating to the Premises, regardless of the cause of such failure. After deducting from any condemnation, insurance or other proceeds received by Lender all reasonable expenses of Lender incurred in the collection and administration of such sums, including attorney's fees, Lender may apply the net proceeds or any part thereof, at its option, to any one or more of the following: (i) the payment of the Secured Obligations, whether or not due and in whatever order Lender elects, (ii) the repair, replacement or restoration of the Premises or any part thereof, and (iii) any other purposes for which Lender is entitled to advance funds under this Mortgage, all without affecting the security interest created by this Mortgage; and any balance of such moneys not applied by Lender as aforesaid shall be paid to Borrower or the person or entity lawfully entitled thereto. Notwithstanding the foregoing, provided (i) no Default shall have occurred and be continuing, and (ii) the casualty, condemnation or damage to the Premises does not substantially impair Borrower's ability to operate the Premises in the same manner as immediately prior to such casualty, condemnation or damage, in the event of a "Minor Loss" (being defined as a loss equal to or less than $25,000.00), Borrower shall give Lender written notice of such loss but shall retain all rights to adjust and compromise such loss with Borrower's insurance company, to collect and receive the proceeds with respect thereto, and to apply the same to the restoration of the Premises. In the event of the foreclosure of this Mortgage or any other transfer of title to the Premises in extinguishment or partial extinguishment of the Secured Obligations, all right, title and interest of Borrower in and to all insurance policies then in force (including any premiums paid in advance), all insurance proceeds, all condemnation proceeds and awards and all claims and judgments for damage to the Premises or any portion thereof shall pass to the purchaser or Lender, and said purchaser or Lender shall have the right to receive all awards, proceeds or payments relating thereto to the extent of any unpaid Secured Obligations following such sale, with legal interest thereon, whether or not a deficiency judgment on this Mortgage shall have been sought or recovered, and to the extent of reasonable counsel fees, costs and disbursements incurred by Lender in connection with the collection of such award, proceeds or payments.
Appears in 1 contract
Samples: Mortgage and Security Agreement (American International Petroleum Corp /Nv/)
Insurance and Condemnation. (a) In addition to the requirements set forth in the Collateral Documents, (i) keep its properties insured at all times, against such risks, including fire and other risks insured against by extended coverage, as is customary with companies of the same or similar size in the same or similar businesses and otherwise on terms and conditions and with insurance carriers which are reasonably satisfactory to the Collateral Agent; (ii) maintain in full force and effect public liability insurance against claims for personal injury or death or property damage occurring upon, in, about or in connection with the use of any properties owned, occupied or controlled by Borrower shall procure foror any Guarantor, deliver to and maintain for as the benefit of Lender during the term of this Instrument, original, fully paid insurance policies issued by such insurance companiescase may be, in such amounts, form amounts and substance, insuring with such parties (including Borrower and any contractor performing work upon the Premises) providing "all risk" permanent real and personal property in an amount equal to or greather than the outstanding principal balance deductibles as are customary with companies of the note, public liability same or similar size in the same or similar businesses and in the same geographic area; and (insuring Borrower and any contractor performing work iii) maintain such other insurance or self insurance as may be required by law to. Schedule 6.09 sets forth the insurance maintained by the Credit Parties on the Premises), worker's compensation, naming Lender as mortgagee Closing Date. The Agents and additional loss payee with respect to all property insurance and as an additional insured with respect to all liability insurance except worker's compensation. At least ten (10) days prior to the expiration date of each policy maintained pursuant to this section, a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing the payment of all premiums required to keep Lenders agree such insurance in effect for set forth on Schedule 6.09 is reasonably satisfactory as of the full term of such policy. At the request of Lender, Borrower shall provide evidence satisfactory to Lender that all such insurance is in effect. If the Premises or any part thereof is damaged by fire or any other cause, Borrower will give immediate written notice thereof to Lenderdate hereof.
(b) All such insurance (other than workmen’s compensation insurance and directors’ and officers’ insurance) relating to assets of Borrower or the Guarantors shall notify Lender immediately upon obtaining knowledge name the Collateral Agent as loss payee (and in the case of each item of real property on which the Collateral Agent has a security interest, mortgage loss payee) and an additional insured for the interests relating to the assets of Borrower and the Guarantors, for the benefit of the institutionCollateral Agent and each Secured Creditor, as their interests may appear, and shall not permit modification, reduction or cancellation in the proposed, contemplated or threatened institution, absence of any action for thirty (30) days prior written notice to the taking through condemnation (which term when used in this Instrument shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu thereof) of the Premises or any part thereofCollateral Agent.
(c) Lender Notwithstanding the foregoing, the rights of the Agents and the Lenders under this paragraph (a) with respect to property and casualty insurance proceeds relating to loss, destruction or damage, or a taking of, real property (x) leased by Borrower or any of its Subsidiaries or (y) which is subject to a mortgage lien which is prior to the lien of any Mortgage in favor of the Collateral Agent thereon, and for which in either case the Collateral Agent is named as loss payee, shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage subordinate to the Premises rights, if any, of the owner of such real property or any portion thereof and the holder of such prior mortgage lien to give receipts and acquittances therefor, and the extent such owner or holder is hereby authorized, at its option, to adjust or compromise any casualty, condemnation or damage claim or cause of action, to commence, appear in and prosecute, in its own or in Borrower's name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all such claims and causes of action to Borrower and Lender jointlyalso named as loss payee.
Appears in 1 contract
Samples: Credit Agreement (Bally Total Fitness Holding Corp)
Insurance and Condemnation. Maintain at all times substantially the same type of insurance coverage in respect of its properties and assets as that maintained in respect thereof immediately prior to the execution of this Agreement:
(a) in amounts not less than the amount of the coverage immediately prior to the execution of this Agreement for all insurance other than that described in clause (b) below including, without limitation, fire and extended coverage insurance for the full and insurable replacement value of all buildings and other improvements located on its properties and business interruption and workmen’s compensation insurance. All such insurance (other than workmen’s compensation insurance and directors’ and officers’ insurance) relating to assets of Borrower or its Subsidiaries shall procure forname the Collateral Agent as loss payee (and in the case of each item of real property on which the Collateral Agent has a security interest, deliver mortgage loss payee) and an additional insured for the interests relating to the assets of Borrower and maintain its Subsidiaries, for the benefit of Lender the Collateral Agent and each Secured Creditor, as their interests may appear, and shall not be modified, reduced or cancelled in the absence of thirty (30) days prior written notice to the Collateral Agent. Borrower shall promptly notify Agent of any loss, damage, or destruction to the Collateral in excess of $2,000,000 for each such casualty, whether or not covered by insurance. The Collateral Agent is hereby authorized to collect all insurance proceeds directly. With respect to insurance proceeds arising from loss, damage or other casualty to any of the Collateral or any part thereof, such proceeds shall be applied as hereinafter provided. Destruction or damage to any real or personal property of Borrower or any Subsidiary which gives rise to insurance proceeds shall be deemed to be a disposition of such property for purposes of Section 7.08(d); provided, however, that if the total amount of the proceeds from such casualty is reasonably expected to be less than $5,000,000 and neither an Event of Default nor a Default shall have occurred and be continuing, Borrower shall have the exclusive right to negotiate a settlement regarding such proceeds with the applicable insurance company and the Collateral Agent shall promptly forward such proceeds to Borrower and the Borrower shall use such proceeds to pay for the repair or replacement (it being agreed that a destroyed or damaged fitness center may be replaced at any site within five miles of the site of such fitness center) of the Collateral subject to such casualty; provided, further, however, that if an Event of Default or a Default shall have occurred and be continuing, or the proceeds of insurance from such casualty are reasonably expected to be equal to or greater than $5,000,000, Borrower shall not enter into any settlement agreement with the applicable insurance company without the prior written consent of Agent, which consent shall not be unreasonably withheld, and if a determination has been made by Borrower, with the prior written consent of Agent, to utilize such proceeds to replace or rebuild the Collateral affected by such casualty, the Collateral Agent shall release such proceeds to Borrower from time to time during the term course of said reconstruction, repair or restoration, but not more often than once each thirty (30) day interval, in accordance with the Collateral Agent’s customary practices for disbursements of construction loans, including, without limitation, customary conditions precedent to disbursement, provided that:
(i) at the time of any requested release of funds, no Event of Default or Default shall have occurred and be continuing (to the extent such Event of Default or Default is cured or waived, Borrower may again request the release of such funds);
(ii) if at the time of any such request by Borrower the cost of completing the repair, replacement or reconstruction, lien-free and ready for use, is in excess of insurance proceeds and other sums then in the Collateral Agent’s hand pursuant to this Section 6.09, funds to cover such excess shall either (x) be promptly deposited by Borrower with the Collateral Agent and shall be disbursed under this Section 6.09 in the same manner as insurance proceeds or (y) to the extent some or all of such amount is available to be borrowed pursuant to Section 2.01(a) hereof, Borrower may, in lieu of the deposit set forth in subsection (x) above, elect to borrow such amounts as an Advance in accordance with the terms of Article II hereof when and as needed to complete the repair;
(iii) costs of administering this disbursement procedure shall be paid by Borrower out of funds on deposit with the Collateral Agent or otherwise;
(iv) when repair, replacement or reconstruction has been completed and paid for, all insurance proceeds then remaining in the Collateral Agent’s hands shall be applied, first, to the payment of the Term Advances in accordance with Section 2.13(a) and, second, to the payment of the other Obligations in accordance with Section 2.13(a);
(v) the Collateral Agent shall be satisfied that, upon release of such proceeds, it shall have for the ratable benefit of the Secured Creditors, a first priority perfected security interest on all property acquired (or to be acquired), but subject to Permitted Liens, with such proceeds; and
(vi) each release of funds shall be conditioned upon receipt by Agent of such documentation as Agent may reasonably require such as bills of sale, other evidences of ownership by the Borrower (or a Subsidiary) of property acquired with such proceeds, completion certificates, waivers of mechanic’s liens, etc. The Collateral Agent shall, pending disbursement or application of funds in accordance with the terms of this InstrumentSection 6.09, originalhold any insurance proceeds (and other funds deposited with it pursuant to clause (ii) above) deposited with it in an interest bearing account as to which the Collateral Agent shall not be liable in any respect to Borrower for any investment results. Interest thereon shall be held and disposed of in the same manner as other monies held by the Collateral Agent under this Section 6.09. On each anniversary date of this Agreement, fully paid Borrower shall provide Agent with a summary of each insurance policy satisfactory to Agent reflecting the insurance coverage required under this Section 6.09 (together with complete copies of any insurance policies issued which Agent may request promptly after such request but not later than six months after such request). In the event of foreclosure of any mortgage or deed of trust in favor of Collateral Agent encumbering the Properties or transfer of title to the Properties in lieu of foreclosure, all right, title and interest of Borrower in and to any insurance policies then in force with respect to the Properties (other than liability policies of Borrower) shall pass to the purchaser, grantee or assignee. In the event of any taking of any portion of any of the Properties by condemnation, seizure or appropriation by any governmental authority which does not constitute an Event of Default hereunder, all awards or proceeds on account of said taking shall be collected and applied in the same manner and shall be subject to the same conditions precedent to the disbursement thereof as applicable to insurance proceeds under this Section 6.09. Notwithstanding the foregoing, the rights of the Agent and the Lenders under this paragraph (a) with respect to property and casualty insurance proceeds relating to loss, destruction or damage, or a taking of, real property (x) leased by the Borrower or any of its Subsidiaries or (y) which is subject to a mortgage lien which is prior to the lien of any Mortgage in favor of the Collateral Agent thereon, and for which in either case the Collateral Agent is named as loss payee, shall be subordinate to the rights, if any, of the owner of such insurance companies, in real property or the holder of such amounts, form and substance, insuring prior mortgage lien to the extent such parties owner or holder is also named as loss payee; and
(including Borrower and any contractor performing work upon the Premisesb) providing "all risk" permanent real and personal property in an amount equal to or greather not less than Fifty Million Dollars ($50,000,000) for general liability coverage, including both bodily injury and property damage, on a per occurrence basis (the outstanding principal balance of the note, public liability (insuring Borrower and any contractor performing work on the Premises“Minimum Liability Coverage”), worker's compensationprovided, naming Lender as mortgagee and additional loss payee with respect however, that the Minimum Liability Coverage may be reduced from time to all property insurance and as an additional insured with respect time to all liability insurance except worker's compensation. At least ten a coverage limit of not less than Twenty-Five Million Dollars (10$25,000,000) on a per occurrence basis (the “Lowered Coverage”) if, within thirty (30) days prior to the expiration date of any Minimum Liability Coverage policy, and thereafter within thirty (30) days after the end of each policy maintained pursuant to this section, a renewal or replacement thereof satisfactory to Lender shall be delivered to Lender, together with receipts evidencing fiscal year of Borrower until the payment of all premiums required to keep such insurance in effect for the full term of such policy. At the request of LenderMinimum Liability Coverage is reinstated, Borrower shall provide evidence satisfactory delivers to Lender Agent a certificate signed by the chief operating officer of Borrower stating that all such insurance Borrower has obtained a lesser amount of coverage, setting forth the amount thereof, and that Borrower was unable to obtain Minimum Liability Coverage and was able to obtain general liability coverage only in the amount set forth in the Borrower’s certificate; provided, further, however, that the Lowered Coverage may be reduced from time to time to a coverage limit of not less than Twenty-Five Million Dollars ($25,000,000) on a “claims made” basis if, within thirty (30) days prior to the expiration of any Lowered Coverage policy and thereafter within thirty (30) days after the end of each fiscal year of Borrower until the Minimum Liability Coverage is in effect. If the Premises or any part thereof is damaged by fire or any other causereinstated, Borrower will give immediate written notice thereof delivers to Lender.
(b) Agent a certificate signed by the chief operating officer of Borrower shall notify Lender immediately upon obtaining knowledge stating that Borrower has obtained a lesser amount of coverage, setting forth the institution, or the proposed, contemplated or threatened institution, of any action for the taking through condemnation (which term when used in this Instrument shall include any damage or taking by any governmental or quasi-governmental authority and any transfer by private sale in lieu amount thereof) of the Premises or any part thereof.
(c) Lender shall be entitled to all compensation, awards and other payments arising from any casualty, condemnation or damage to the Premises or any portion thereof and to give receipts and acquittances therefor, and is hereby authorized, at its option, that Borrower was unable to adjust obtain Minimum Liability Coverage or compromise any casualty, condemnation or damage claim or cause of action, Lowered Coverage and was able to commence, appear obtain general liability coverage only in and prosecute, the amount set forth in its own or in the Borrower's name, any action or proceeding relating to any casualty, condemnation or damage claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith. Each insurance company, condemning authority or other party is hereby authorized and directed to make payment for all such claims and causes of action to Borrower and Lender jointly’s certificate.
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Samples: Credit Agreement (Bally Total Fitness Holding Corp)