To Insure. (a) Mortgagor, at Mortgagor's expense, shall maintain with Insurers: (i) insurance with respect to Mortgagor's insurable properties constituting a part of the Trust Estate against loss or damage by fire, lightning, and other risks from time to time included under "all-risk" policies and against loss or damage by sprinkler leakage, water damage, collapse, malicious mischief and explosion in respect of any steam and pressure boilers and similar apparatus located on such insurable properties, in amounts at all times sufficient to prevent Mortgagor from becoming a coinsurer within the terms of the applicable policies, but in any event such insurance shall be maintained in not less than the greatest of the following (the "Insurance Amount"): (A) 100% of the then Full Insurable Value of such insurable properties, determined from time to time (but not less frequently than once in any 36 calendar months), by an Independent appraiser or Insurer, (B) the then outstanding principal amount of Indebtedness under the Debt Documents or (C) the amount required to be maintained pursuant to the Material Instrument Requirements; (ii) war risk insurance as and when such insurance is obtainable from the United States of America or any agency thereof as promptly as reasonably practicable after the same becomes so obtainable, in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, in such lesser amount as may then be so obtainable; (iii) comprehensive general liability insurance, including, without limitation, blanket contractual liability coverage, broad form property damage, independent contractor's coverage and personal injury coverage against any and all claims arising out of or connected with the possession, use,, leasing, operation or condition of such insurable properties, in an amount not less than $100,000,000 combined single limit coverage for personal injury and property damage with respect to any one occurrence, which may be under an umbrella policy. Anything contained in this clause (iii) to the contrary notwithstanding, the Material Instrument Requirements with respect to the kinds and amount of insurance described in this clause (iii) shall be satisfied by Mortgagor; (iv) workers' compensation insurance to the extent required by law; (v) business interruption insurance covering not less than 6 months of loss; (vi) to the extent available for a commercially reasonable premium, flood insurance in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, such lesser amount as may then be so obtainable but in no event less than $100,000,000; and (vii) such other insurance with respect to such insurable properties against loss or damage of the kinds (A) from time to time customarily insured against by persons owning or using first-class casino and hotel complexes in Atlantic City, New Jersey and (B) required to be maintained pursuant to any Material Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Material Instrument Requirements, Mortgagor may maintain deductibles with respect to the insurance policies described in clauses (i), (ii), (iii), (v), (vi) and (vii) above in accordance with standard industry practice with respect to the operation of a first-class casino hotel. (i) Each policy of insurance maintained by Mortgagor pursuant to Section 5.11(a) shall, (A) except in the case of workers' compensation insurance, name Mortgagor as an insured and shall name as additional insureds (1) Mortgagee and (2) to the extent required by the Material Instrument Requirements, the lessors under any Facility Leases, (B) provide that all insurance proceeds for losses, except in the case of comprehensive general liability insurance and workers' compensation insurance, be payable solely to Mortgagee, subject to any Material Instrument Requirements, include effective waivers (whether under the terms of any such policy or otherwise) by the insurer of all claims for insurance premiums against all loss payees and named insureds (other than Mortgagor) and all rights of subrogation against any named insured, (D) except in the case of comprehensive general liability and workers' compensation insurance, provide that any losses shall be payable notwithstanding (1) any act, failure to act, negligence of, or violation or breach of warranties, declarations or conditions contained in such policy by Mortgagor or Mortgagee or any other named insured or loss payee, (2) the occupation or use of the insurable properties for purposes more hazardous than permitted by the terms of the policy, (3) any foreclosure or other proceeding or notice of sale relating to the insurable properties or (4) any change in the title to or owners hip or possession of the insurable properties, (E) contain a non-contributory mortgagee clause in favor of Mortgagee, and (F) provide that if all or any part of such policy is cancelled, terminated or expires, the insurer will forthwith give notice thereof to each named insured and loss payee and that no cancellation, non-renewal, reduction in amount or material change in coverage thereof shall be effective until at least 30 days after receipt by each named insured and loss payee of written notice thereof. Mortgagor may effect the insurance required under this Section 5.11 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that such policies otherwise comply with this Mortgage and provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties. (ii) Mortgagor may effect the insurance required under this Section 5.11 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that (A) such policies otherwise comply with this Mortgage, (B) except with respect to flood insurance and earthquake insurance, provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties' and (C) in the case of flood insurance provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced below $100,000,000 by reason of claims thereunder against such other properties. (c) Mortgagee shall not be responsible for effecting or renewing any insurance or for the responsibility or solvency of the insurers. (d) Mortgagor shall not take out separate insurance, concurrent in form or contributing in the event of loss with that required to be maintained pursuant to this Section 5.11, unless the same is permitted by Material Instrument Requirements.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Trump Communications LLC)
To Insure. (a) Mortgagor, at Mortgagor's expense, shall maintain with Insurers:
(i) insurance with respect to Mortgagor's insurable properties constituting a part of the Trust Estate against loss or damage by fire, lightning, and other risks from time to time included under "all-risk" policies and against loss or damage by sprinkler leakage, water damage, collapse, malicious mischief and explosion in respect of any steam and pressure boilers and similar apparatus located on such insurable propertiesproper-ties, in amounts at all times sufficient to prevent Mortgagor from becoming a coinsurer within the terms of the applicable policies, but in any event such insurance shall be maintained in not less than the greatest of the following (the "Insurance Amount"): (A) 100% of the then Full Insurable Value of such insurable properties, determined from time to time (but not less frequently than once in any 36 calendar months), by an Independent appraiser or Insurer, (B) the then outstanding principal amount of Indebtedness under the Debt Documents or (C) the amount required to be maintained pursuant to the Material Instrument Requirements;
(ii) war risk insurance as and when such insurance is obtainable from the United States of America or any agency thereof as promptly as reasonably reason- ably practicable after the same becomes so obtainable, in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, in such lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance, including, without limitation, blanket contractual liability coverage, broad form property damage, independent contractor's coverage and personal injury coverage against any and all claims arising out of or connected with the possession, use,, leasing, operation or condition of such insurable properties, in an amount not less than $100,000,000 combined single limit coverage for personal injury and property damage with respect to any one occurrence, which may be under an umbrella policy. Anything contained in this clause (iii) to the contrary notwithstanding, the Material Instrument Requirements with respect to the kinds and amount of insurance described in this clause (iii) shall be satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent required by law;
(v) business interruption insurance covering not less than 6 months of loss;
(vi) to the extent available for a commercially reasonable premium, flood insurance in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, such lesser amount as may then be so obtainable but in no event less than $100,000,000; and
(vii) such other insurance with respect to such insurable properties against loss or damage of the kinds (A) from time to time customarily insured against by persons owning or using first-class casino and hotel complexes in Atlantic City, New Jersey and (B) required to be maintained pursuant to any Material Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Material Instrument Requirements, Mortgagor may maintain deductibles with respect to the insurance policies described in clauses (i), (ii), (iii), (v), (vi) and (vii) above in accordance with standard industry practice with respect to the operation of a first-class casino hotel.
(i) Each policy of insurance maintained by Mortgagor pursuant to Section 5.11(a) shall, (A) except in the case of workers' compensation insurance, name Mortgagor as an insured and shall name as additional insureds (1) Mortgagee and (2) to the extent required by the Material Instrument Requirements, the lessors under any Facility LeasesLeases and the holders of the Superior Mortgages, (B) provide that all insurance proceeds for losses, except in the case of comprehensive general liability insurance and workers' compensation insurance, be payable solely to Mortgagee, subject to any Material Instrument Requirements, include effective waivers (whether under the terms of any such policy or otherwise) by the insurer of all claims for insurance premiums against all loss payees and named insureds (other than Mortgagor) and all rights of subrogation against any named insured, (D) except in the case of comprehensive general liability and workers' compensation insurance, provide that any losses shall be payable notwithstanding (1) any act, failure to act, negligence of, or violation or breach of warranties, declarations or conditions contained in such policy by Mortgagor or Mortgagee or any other named insured or loss payee, (2) the occupation or use of the insurable properties for purposes more hazardous than permitted by the terms of the policy, (3) any foreclosure or other proceeding or notice of sale relating to the insurable properties or (4) any change in the title to or owners hip or possession of the insurable properties, (E) contain a non-contributory mortgagee clause in favor of Mortgagee, and (F) provide that if all or any part of such policy is cancelled, terminated or expires, the insurer will forthwith give notice thereof to each named insured and loss payee and that no cancellation, non-renewal, reduction in amount or material change in coverage thereof shall be effective until at least 30 days after receipt by each named insured and loss payee of written notice thereof. Mortgagor may effect the insurance required under this Section 5.11 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that such policies otherwise comply with this Mortgage and provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties.
(ii) Mortgagor may effect the insurance required under this Section 5.11 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that (A) such policies otherwise comply with this Mortgage, (B) except with respect to flood insurance and earthquake insurance, provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties' and (C) in the case of flood insurance provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced below $100,000,000 by reason of claims thereunder against such other properties.
(c) Mortgagee shall not be responsible for effecting or renewing any insurance or for the responsibility or solvency of the insurers.
(d) Mortgagor shall not take out separate insurance, concurrent in form or contributing in the event of loss with that required to be maintained pursuant to this Section 5.11, unless the same is permitted by Material Instrument Requirements.
Appears in 1 contract
Sources: Mortgage and Security Agreement (Trump Communications LLC)
To Insure. (a) Mortgagor, at Mortgagor's expense, shall maintain with Insurers:
(i) insurance with respect to Mortgagor's insurable properties constituting a part of the Trust Estate against loss or damage by fire, lightning, and other risks from time to time included under "all-risk" policies and against loss or damage by sprinkler leakage, water damage, collapse, malicious mischief and explosion in respect of any steam and pressure boilers and similar apparatus located on such insurable properties, in amounts at all times sufficient to prevent Mortgagor from becoming a coinsurer within the terms of the applicable policies, but in any event such insurance shall be maintained in not less than the greatest of the following (the "Insurance Amount"): (A) 100% of the then Full Insurable Value of such insurable properties, determined from time to time (but not less frequently than once in any 36 calendar months), by an Independent appraiser Appraiser or Insurer, (B) the then outstanding principal amount Outstanding Amount of Indebtedness under Mortgage Debt, including the Debt Documents Senior Partnership Upstream Note, or (C) the amount required to be maintained pursuant to the Material Superior Instrument Requirements;
(ii) war risk insurance as and when such insurance is obtainable from the United States of America or any agency thereof as promptly as reasonably practicable after the same becomes so obtainable, in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, in such lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance, including, without limitation, blanket contractual liability coverage, broad form property damage, independent contractor's coverage and personal injury coverage against any and all claims arising out of or connected with the possession, use,, leasing, operation or condition of such insurable properties, in an amount not less than $100,000,000 combined single limit coverage for personal injury and property damage with respect to any one occurrence, which may be under an umbrella policy. Anything contained in this clause (iii) to the contrary notwithstanding, the Material Superior Instrument Requirements with respect to the kinds and amount of insurance described in this clause (iii) shall be satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent required by law;
(v) business interruption insurance covering not less than 6 months of loss, provided that, at any time that Mortgagor is renewing any policy for such insurance or taking out any new or replacement policy for such insurance covering a period of less than 12 months, Mortgagor shall deliver to Mortgagee an Officers' Certificate certifying that the period of coverage to be maintained by Mortgagor under such policy is the maximum that can be maintained at rates determined by Mortgagor to be reasonable for such coverage;
(vi) to the extent available for a commercially reasonable premiumavailable, flood insurance in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, such lesser amount as may then be so obtainable but in no event less than $100,000,000; and
(vii) such other insurance with respect to such insurable properties against loss or damage of the kinds (A) from time to time customarily insured against by persons owning or using first-class casino and hotel complexes in Atlantic City, New Jersey and (B) required to be maintained pursuant to any Material Superior Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Material Superior Instrument Requirements, (A) Mortgagor may maintain deductibles a deductible with respect to the insurance policies described in clauses (i), (ii), (iii), (v), (vi) and (vii) above in accordance with standard industry practice an amount not to exceed $250,000, (B) Mortgagor may maintain a deductible with respect to the operation of insurance policies described in clause (iii) in an amount not to exceed $500,000, and (C) Mortgagor may maintain a first-class casino hoteldeductible with respect to the insurance policies described in clause (v) in an amount not to exceed $1,000,000.
(i) Each policy of insurance maintained by Mortgagor pursuant to Section 5.11(a5.10(a) shall, (A) except in the case of workers' compensation insurance, name Mortgagor as an insured and shall name as additional insureds (1) Mortgagee and (2) to the extent required by the Material Superior Instrument Requirements, the lessors under any Facility Leases, (B) provide that all insurance proceeds for losses, except in the case of comprehensive general liability insurance and workers' compensation insuranceinsurance or as otherwise provided in Subsections (d), (e) and (f) of this Section 5.10, be payable solely to Mortgagee, subject to any Material Instrument Requirements, (C) include effective waivers (whether under the terms of any such policy or otherwise) by the insurer of all claims for insurance premiums against all loss payees and named insureds (other than Mortgagor) and all rights of subrogation against any named insured, (D) except in the case of comprehensive general liability and workers' compensation insurance, provide that any losses shall be payable notwithstanding (1) any act, failure to act, negligence of, or violation or breach of warranties, declarations or conditions contained in such policy by Mortgagor or Mortgagee or any other named insured or loss payeepayee (including, without limitation, the lessors under the Facility Leases, with respect to any Leased Facilities, (2) the occupation or use of the insurable properties for purposes more hazardous than permitted by the terms of the policy, (3) any foreclosure or other proceeding or notice of sale relating to the insurable properties or (4) any change in the title to or owners hip ownership or possession of the insurable properties, (E) contain a non-contributory mortgagee clause in favor of Mortgagee, and (F) provide that if all or any part of such policy is cancelledcanceled, terminated or expires, the insurer will forthwith give notice thereof to each named insured and loss payee and that no cancellation, non-renewal, reduction in amount or material change in coverage thereof shall be effective until at least 30 days after receipt by each named insured and loss payee of written notice thereof. Mortgagor may effect the insurance required under this Section 5.11 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that such policies otherwise comply with this Mortgage and provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties.
(ii) Mortgagor may effect the insurance required under this Section 5.11 5.10 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that (A) such policies otherwise comply with this Mortgagemortgage, (B) except with respect to flood insurance and earthquake insurance, provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties' properties and (C) in the case of flood insurance provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced below $100,000,000 by reason of claims thereunder against such other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate originals of all insurance policies that Mortgagor is required to maintain pursuant to this Section 5.10. Mortgagee shall not be responsible for effecting or renewing any insurance or for the responsibility or solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee immediately upon obtaining knowledge of any Casualty which (i) results in damage, loss or destruction in an amount in excess of $5,000,000 to any buildings or improvements on the Premises and/or any Tangible Personal Property or (ii) pursuant to any Superior Instrument Requirement would require the deposit of insurance proceeds with the Insurance Trustee, or action or proceeding with respect thereto. Within 30 days after any Casualty which results in any damage, loss or destruction in an amount in excess of $10,000,000 to any buildings or improvements on the Premises and/or any Tangible Personal Property, Mortgagor shall deliver to Mortgagee a certificate of an Architect stating whether, in such Architect's opinion, applicable Legal Requirements permit the Restoration of said buildings and improvements for the same uses and to the same size and quality in all material respects, as existed immediately prior to the Casualty (and if said certificate states that Legal Requirements do not take out separate insurancepermit such Restoration, concurrent in form or contributing in said certificate shall describe the event of loss with that manner closest approximating such criteria to which the buildings and improvements could be so restored and shall be accompanied by a Certificate Of Appraised Value dated not more than 10 days prior to delivery setting forth the Appraised Value immediately prior to the Casualty and the estimated Appraised Value immediately after the Restoration). If Mortgagor is required to deliver such Certificates of Appraised Value and if based on such Certificates of Appraised Value immediately after Restoration, (i) the aggregate Outstanding Amount of the Indebtedness of the Mortgagor, the Company or TCHI immediately after such Restoration shall exceed the greater of (A) 80% of the Appraised Value immediately after such Restoration or (B) the quotient of the Outstanding Amount of the Indebtedness of the Mortgagor, the Company or TCHI immediately prior to such Casualty divided by the Appraised Value immediately prior to the Casualty multiplied by the Appraised Value immediately after such Restoration, or (ii) applicable Legal Requirements do not permit the Restoration of the Casino Hotel for use as a casino and hotel complex, then, in either of such events, the proceeds of any insurance shall not be maintained applied to Restoration but shall instead be paid and delivered to Mortgagee to the extent of the then Outstanding Amount of the Senior Partnership Upstream Note and any other interest or other sums due hereunder or thereunder to be applied to the satisfaction of this Mortgage to the extent proceeds are available for such purpose and provided that no additional sums are due to the Trustee or the Holders under the Senior Notes, the Senior Note Indenture, the Senior Guarantee, the TCHI Notes, the TCHI Note Indenture, the TCHI Guarantee, the Mortgage Notes or the Mortgage Note Indenture, the balance of any net insurance proceeds shall be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than $10,000,000, the net insurance proceeds shall be paid by Mortgagee to Mortgagor.
(ii) If the cost of Restoration is $10,000,000 or more, the net insurance proceeds shall be paid by Mortgagee to the Insurance Trustee.
(iii) Mortgagor shall commence with reasonable promptness under the circumstances and thereafter with due diligence proceed to perform and complete in a good and workmanlike manner the restoration, repair, replacement or rebuilding of the damage or destruction resulting from the Casualty (all such restoration, repair, replacement and rebuilding following a Casualty or a Taking are referred to as "Restoration") in accordance with the plans and specifications submitted to the Insurance Trustee, in conformance with all Legal Requirements and Superior Instrument Requirements, and in accordance with the further provisions of this Subsection (e), regardless of the extent of any such Casualty and whether or not net insurance proceeds, if any, shall be available or, if available, shall be sufficient, for the purpose of the Restoration. All Restoration work shall be performed in accordance with the applicable provisions of Section 5.12 and in conformance with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements and, prior to commencing any Restoration, Mortgagor shall obtain all Permits necessary in connection therewith, and shall obtain, and keep in full force and effect until the completion of such Restoration, such additional insurance as the Insurance Trustee and Superior Instrument Requirements may require. The plans and specifications for the Restoration shall be accompanied by a Mortgagor's Certificate and an Opinion of Counsel to the effect that upon the completion of the Restoration pursuant to the plans and specifications, the Premises and all buildings and improvements thereon will comply with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives shall be held by Mortgagor in trust for the purpose of paying the cost of the Restoration, except as otherwise provided herein.
(v) Any net insurance proceeds that the Insurance Trustee holds pursuant to this Subsection (e), shall be deposited in an interest-bearing investment reasonably designated by Mortgagor (to the extent Mortgagor is permitted to designate such investment under the Superior Instrument Requirements) (and the interest thereon shall be added to such proceeds) and shall be paid by the Insurance Trustee to reimburse Mortgagor for, or to make payment for, the Restoration, after the Insurance Trustee deducts therefrom the amount of any reasonable costs and expenses incurred in connection with the performance of its obligations under this Section 5.115.10. The Insurance Trustee shall make such payments not more frequently than once every 30 days upon the written request of Mortgagor (unless more frequent payments are required by Superior Instrument Requirements), unless by paying to Mortgagor or the same persons named in the certificate described in clause (vi) of this Subsection (e) the respective amounts stated in such certificate from time to time as the Restoration progresses, provided Mortgagor has complied with the requirements of this Subsection (e) and such payment is permitted by Material any applicable Superior Instrument Requirements. Mortgagor's request shall be accompanied by (A) the certificate described in clause (vi) of this Subsection (e) and (B) a title company or official search, or other evidence reasonably acceptable to the Insurance Trustee, showing that there have not been filed with respect to the Premises, any vendor's, contractor's, mechanic's, laborer's or materialman's statutory or similar lien which has not been discharged of record (or bonded against or secured by other security) or any other encumbrance irrespective of its priority (other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this Subsection (e) shall (A) be a Mortgagor's Certificate, countersigned by the Architect in charge of the Restoration with respect to the matters described in (1) and (5) below, (B) be dated not more than 10 days prior to such request and (C) set forth (in addition to any other requirements contained in any applicable Superior Instrument Requirements) that:
(1) all of the Restoration theretofore performed is in substantial compliance with the plans and specifications theretofore submitted to the Insurance Trustee and in compliance with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements;
(2) the sum then requested either has been paid by Mortgagor or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished or contracted to deliver materials for the Restoration therein specified, and the names and addresses of such persons, a brief description of such services and materials and the several amounts so paid or due to each of said persons in respect thereof;
(3) no part of the amount requested has been or is the basis in any previous or then pending request for the withdrawal of net insurance proceeds, and that the sum then requested does not exceed the value of the services and materials described in the certificate;
(4) except for the amount, if any, stated pursuant to subclause (2) of this clause (vi) in such certificate to be due for services or materials, and except for amounts in dispute and/or customary retainages, there is no outstanding indebtedness known to the person signing such certificate, after due inquiry, which is then due for labor, wages, materials, supplies or services in connection with such Restoration; and
(5) the remaining cost, as estimated by the persons signing such certificate, of the Restoration in order to complete the same does not exceed the net insurance proceeds remaining in the hands of Insurance Trustee after payment of the sum requested in such certificate or if such estimated cost does exceed such insurance proceeds such certificate shall state the amount of any such
Appears in 1 contract
Sources: Indenture of Mortgage and Security Agreement (Trumps Castle Associates Lp)
To Insure. (a) Mortgagor, at Mortgagor's expense, shall maintain with Insurers:
(i) insurance with respect to Mortgagor's insurable properties constituting a part of the Trust Estate against loss or damage by fire, lightning, and other risks from time to time included under "all-risk" policies and against loss or damage by sprinkler leakage, water damage, collapse, malicious mischief and explosion in respect of any steam and pressure boilers and similar apparatus located on such insurable properties, in amounts at all times sufficient to prevent Mortgagor from becoming a coinsurer within the terms of the applicable policies, but in any event such insurance shall be maintained in not less than the greatest of the following (the "Insurance Amount"): (A) 100% of the then Full Insurable Value of such insurable properties, determined from time to time (but not less frequently than once in any 36 calendar months), by an Independent appraiser Appraiser or Insurer, (B) the then outstanding principal amount Outstanding Amount of Indebtedness under Mortgage Debt, including the Debt Documents Senior Partnership Note, or (C) the amount required to be maintained pursuant to the Material Superior Instrument Requirements;
(ii) war risk insurance as and when such insurance is obtainable from the United States of America or any agency thereof as promptly as reasonably practicable after the same becomes so obtainable, in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, in such lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance, including, without limitation, blanket contractual liability coverage, broad form property damage, independent contractor's coverage and personal injury coverage against any and all claims arising out of or connected with the possession, use,, leasing, operation or condition of such insurable properties, in an amount not less than $100,000,000 combined single limit coverage for personal injury and property damage with respect to any one occurrence, which may be under an umbrella policy. Anything contained in this clause (iii) to the contrary notwithstanding, the Material Superior Instrument Requirements with respect to the kinds and amount of insurance described in this clause (iii) shall be satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent required by law;
(v) business interruption insurance covering not less than 6 months of loss, provided that, at any time that Mortgagor is renewing any policy for such insurance or taking out any new or replacement policy for such insurance covering a period of less than 12 months, Mortgagor shall deliver to Mortgagee an Officers' Certificate certifying that the period of coverage to be maintained by Mortgagor under such policy is the maximum that can be maintained at rates determined by Mortgagor to be reasonable for such coverage;
(vi) to the extent available for a commercially reasonable premiumavailable, flood insurance in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, such lesser amount as may then be so obtainable but in no event less than $100,000,000; and
(vii) such other insurance with respect to such insurable properties against loss or damage of the kinds (A) from time to time customarily insured against by persons owning or using first-class casino and hotel complexes in Atlantic City, New Jersey and (B) required to be maintained pursuant to any Material Superior Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Material Superior Instrument Requirements, (A) Mortgagor may maintain deductibles a deductible with respect to the insurance policies described in clauses (i), (ii), (iii), (v), (vi) and (vii) above in accordance with standard industry practice an amount not to exceed $250,000, (B) Mortgagor may maintain a deductible with respect to the operation of insurance policies described in clause (iii) in an amount not to exceed $500,000, and (C) Mortgagor may maintain a first-class casino hoteldeductible with respect to the insurance policies described in clause (v) in an amount not to exceed $1,000,000.
(i) Each policy of insurance maintained by Mortgagor pursuant to Section 5.11(a5.10(a) shall, (A) except in the case of workers' compensation insurance, name Mortgagor as an insured and shall name as additional insureds insurers (1) Mortgagee and (2) to the extent required by the Material Superior Instrument Requirements, the lessors under any Facility Leases, (B) provide that all insurance proceeds for losses, except in the case of comprehensive general liability insurance and workers' compensation insuranceinsurance or as otherwise provided in Subsections (d), (e) and (f) of this Section 5.10, be payable solely to Mortgagee, subject to any Material Instrument Requirements, (C) include effective waivers (whether under the terms of any such policy or otherwise) by the insurer of all claims for insurance premiums against all loss payees and named insureds insurers (other than Mortgagor) and all rights of subrogation against any named insured, (D) except in the case of comprehensive general liability and workers' compensation insurance, provide that any losses shall be payable notwithstanding (1) any act, failure to act, negligence of, or violation or breach of warranties, declarations or conditions contained in such policy by Mortgagor or Mortgagee or any other named insured or loss payeepayee (including, without limitation, the lessors under the Facility Leases with respect to any Leased Facilities), (2) the occupation or use of the insurable properties for purposes more hazardous than permitted by the terms of the policy, (3) any foreclosure or other proceeding or notice of sale relating to the insurable properties or (4) any change in the title to or owners hip ownership or possession of the insurable properties, (E) contain a non-contributory mortgagee clause in favor of Mortgagee, and (F) provide that if all or any part of such policy is cancelledcanceled, terminated or expires, the insurer will forthwith give notice thereof to each named insured and loss payee and that no cancellation, non-renewal, reduction in amount or material change in coverage thereof shall be effective until at least 30 days after receipt by each named insured and loss payee of written notice thereof. Mortgagor may effect the insurance required under this Section 5.11 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that such policies otherwise comply with this Mortgage and provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties.
(ii) Mortgagor may effect the insurance required under this Section 5.11 5.10 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that (A) such policies otherwise comply with this Senior Guarantee Mortgage, (B) except with respect to flood insurance and earthquake insurance, provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties' properties and (C) in the case of flood insurance provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced below $100,000,000 by reason of claims thereunder against such other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate originals of all insurance policies that Mortgagor is required to maintain pursuant to this Section 5.10. Mortgagee shall not be responsible for effecting or renewing any insurance or for the responsibility or solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee immediately upon obtaining knowledge of any Casualty which (i) results in damage, loss or destruction in an amount in excess of $5,000,000 to any buildings or improvements on the Premises and/or any Tangible Personal Property or (ii) pursuant to any Superior Instrument Requirement, would require the deposit of insurance proceeds with the Insurance Trustee or action or proceeding with respect thereto. Within 30 days after any Casualty which results in any damage, loss or destruction in an amount in excess of $10,000,000 to any buildings or improvements on the Premises and/or any Tangible Personal Property, Mortgagor shall deliver to Mortgagee a certificate of an Architect stating whether, in such Architect's opinion, applicable Legal Requirements permit the Restoration of said buildings and improvements for the same uses and to the same size and quality in all material respects, as existed immediately prior to the Casualty (and if said certificate states that Legal Requirements do not take out separate insurancepermit such Restoration, concurrent said certificate shall describe the manner closest approximating such criteria to which the buildings and improvements could be so restored and shall be accompanied by a Certificate Of Appraised Value dated not more than 10 days prior to delivery setting forth the Appraised Value immediately prior to the Casualty and the estimated Appraised Value immediately after the Restoration). If Mortgagor is required to deliver such Certificates of Appraised Value and if based on such Certificates of Appraised Value immediately after Restoration, (i) the aggregate Outstanding Amount of Indebtedness of the Mortgagor, the Company or TCHI immediately after such Restoration shall exceed the greater of (A) 80% of the Appraised Value immediately after such Restoration or (B) the quotient of the Outstanding Amount of Indebtedness immediately prior to such Casualty divided by the Appraised Value immediately prior to the Casualty multiplied by the Appraised Value immediately after such Restoration, or (ii) applicable Legal Requirements do not permit the Restoration of the Casino Hotel for use as a casino and hotel complex, then, in form either of such events, the proceeds of any insurance shall not be applied to Restoration but shall instead be applied to the Senior Indebtedness to the extent of the then Outstanding Amount of the Senior Notes and any other interest or contributing other sums due hereunder or thereunder to be applied to the satisfaction of this Senior Guarantee Mortgage. Provided that no additional sums are due to the trustees or the holders under the Senior Notes, the Senior Note Indenture, the Senior Guarantee, the TCHI Notes, the TCHI Note Indenture, the TCHI Guarantee, the Mortgage Notes, or the Mortgage Note Indenture, the balance of any net insurance proceeds after the payments described in the event immediately preceding sentence shall be paid to Mortgagor.
(e) Subject to the provisions of loss Subsection 5.10(d), if a Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than $10,000,000, the net insurance proceeds shall be paid by Mortgagee to Mortgagor.
(ii) If the cost of Restoration is $10,000,000 or more, the net insurance proceeds shall be paid by Mortgagee to the Insurance Trustee.
(iii) Mortgagor shall commence with reasonable promptness under the circumstances and thereafter with due diligence proceed to perform and complete in a good and workmanlike manner the restoration, repair, replacement or rebuilding of the damage or destruction resulting from the Casualty (all such restoration, repair, replacement and rebuilding following a Casualty or a Taking are referred to as "Restoration") in accordance with the plans and specifications submitted to the Insurance Trustee, in conformance with all Legal Requirements and Superior Instrument Requirements, and in accordance with the further provisions of this Subsection (e), regardless of the extent of any such Casualty and whether or not net insurance proceeds, if any, shall be available or, if available, shall be sufficient, for the purpose of the Restoration. All Restoration work shall be performed in accordance with the applicable provisions of Section 5.12 and in conformance with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements and, prior to commencing any Restoration, Mortgagor shall obtain all Permits necessary in connection therewith, and shall obtain, and keep in full force and effect until the completion of such Restoration, such additional insurance as the Insurance Trustee and Superior Instrument Requirements may require. The plans and specifications for the Restoration shall be accompanied by a Mortgagor's Certificate and an Opinion of Counsel to the effect that required upon the completion of the Restoration pursuant to the plans and specifications, the Premises and all buildings and improvements thereon will comply with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives shall be maintained held by Mortgagor in trust for the purpose of paying the cost of the Restoration, except as otherwise provided herein.
(v) Any net insurance proceeds that the Insurance Trustee holds pursuant to this Subsection (e), shall be deposited in an interest-bearing investment reasonably designated by Mortgagor (to the extent Mortgagor is permitted to designate such investment under the Superior Instrument Requirements) (and the interest thereon shall be added to such proceeds) and shall be paid by the Insurance Trustee to reimburse Mortgagor for, or to make payment for, the Restoration, after the Insurance Trustee deducts therefrom the amount of any reasonable costs and expenses incurred in connection with the performance of its obligations under this Section 5.115.10. The Insurance Trustee shall make such payments not more frequently than once every 30 days upon the written request of Mortgagor (unless more frequent payments are required by Superior Instrument Requirements), unless by paying to Mortgagor or the same persons named in the certificate described in clause (vi) of this Subsection (e) the respective amounts stated in such certificate from time to time as the Restoration progresses, provided Mortgagor has complied with the requirements of this Subsection (e) and such payment is permitted by Material any applicable Superior Instrument Requirements. Mortgagor's request shall be accompanied by (A) the certificate described in clause (vi) of this Subsection (e) and (B) a title company or official search, or other evidence reasonably acceptable to the Insurance Trustee, showing that there have not been filed with respect to the Premises, any vendor's, contractor's, mechanic's, laborer's or materialman's statutory or similar lien which has not been discharged of record (or bonded against or secured by other security) or any other encumbrance irrespective of its priority (other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this Subsection (e) shall (A) be a Mortgagor's Certificate, countersigned by the Architect in charge of the Restoration with respect to the matters described in (1) and (5) below, (B) be dated not more than 10 days prior to such request and (C) set forth (in addition to any other requirements contained in any applicable Superior Instrument Requirements) that:
(1) all of the Restoration theretofore performed is in substantial compliance with the plans and specifications theretofore submitted to the Insurance Trustee and in compliance with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements;
(2) the sum then requested either has been paid by Mortgagor or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished or contracted to deliver materials for the Restoration therein specified, and the names and addresses of such persons, a brief description of such services and materials and the several amounts so paid or due to each of said persons in respect thereof;
(3) no part of the amount requested has been or is the basis in any previous or then pending request for the withdrawal of net insurance proceeds, and that the sum then requested does not exceed the value of the services and materials described in the certificate;
(4) except for the amount, if any, stated pursuant to subclause (2) of this clause (vi) in such certificate to be due for services or materials, and except for amounts in dispute and/or customary retainages, there is no outstanding indebtedness known to the person signing such certificate, after due inquiry, which is then due for labor, wages, materials, supplies or services in connection with such Restoration; and
(5) the remaining cost, as estimated by the persons signing such certificate, of the Restoration in order to complete the same does not exceed the net insurance proceeds remaining in the hands of Insurance Trustee after payment of the sum requested in such certificate or if such estimated cost does exceed such insurance proceeds such certificate shall state the amount of any such deficiency. If the certifi
Appears in 1 contract
Sources: Indenture of Mortgage and Security Agreement (Trumps Castle Associates Lp)
To Insure. (a) Mortgagor, at Mortgagor's expense, shall maintain with Insurers:
(i) insurance with respect to Mortgagor's insurable properties constituting a part of the Trust Estate against loss or damage by fire, lightning, and other risks from time to time included under "all-risk" policies and against loss or damage by sprinkler leakage, water damage, collapse, malicious mischief and explosion in respect of any steam and pressure boilers and similar apparatus located on such insurable properties, in amounts at all times sufficient to prevent Mortgagor from becoming a coinsurer within the terms of the applicable policies, but in any event such insurance shall be maintained in not less than the greatest of the following (the "Insurance Amount"): (A) 100% of the then Full Insurable Value of such insurable properties, determined from time to time (but not less frequently than once in any 36 calendar months), by an Independent appraiser Appraiser or Insurer, (B) the then outstanding principal amount Outstanding Amount of Indebtedness under Mortgage Debt, including the Debt Documents Senior Partnership Note, or (C) the amount required to be maintained pursuant to the Material Superior Instrument Requirements;
(ii) war risk insurance as and when such insurance is obtainable from the United States of America or any agency thereof as promptly as reasonably practicable after the same becomes so obtainable, in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, in such lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance, including, without limitation, blanket contractual liability coverage, broad form property damage, independent contractor's coverage and personal injury coverage against any and all claims arising out of or connected with the possession, use,, leasing, operation or condition of such insurable properties, in an amount not less than $100,000,000 combined single limit coverage for personal injury and property damage with respect to any one occurrence, which may be under an umbrella policy. Anything contained in this clause (iii) to the contrary notwithstanding, the Material Superior Instrument Requirements with respect to the kinds and amount of insurance described in this clause (iii) shall be satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent required by law;
(v) business interruption insurance covering not less than 6 months of loss, provided that, at any time that Mortgagor is renewing any policy for such insurance or taking out any new or replacement policy for such insurance covering a period of less than 12 months, Mortgagor shall deliver to Mortgagee an Officers' Certificate certifying that the period of coverage to be maintained by Mortgagor under such policy is the maximum that can be maintained at rates determined by Mortgagor to be reasonable for such coverage;
(vi) to the extent available for a commercially reasonable premiumavailable, flood insurance in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, such lesser amount as may then be so obtainable but in no event less than $100,000,000; and
(vii) such other insurance with respect to such insurable properties against loss or damage of the kinds (A) from time to time customarily insured against by persons owning or using first-class casino and hotel complexes in Atlantic City, New Jersey and (B) required to be maintained pursuant to any Material Superior Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Material Superior Instrument Requirements, (A) Mortgagor may maintain deductibles a deductible with respect to the insurance policies described in clauses (i), (ii), (iii), (v), (vi) and (vii) above in accordance with standard industry practice an amount not to exceed $250,000, (B) Mortgagor may maintain a deductible with respect to the operation of insurance policies described in clause (iii) in an amount not to exceed $500,000, and (C) Mortgagor may maintain a first-class casino hoteldeductible with respect to the insurance policies described in clause (v) in an amount not to exceed $1,000,000.
(i) Each policy of insurance maintained by Mortgagor pursuant to Section 5.11(a5.10(a) shall, (A) except in the case of workers' compensation insurance, name Mortgagor as an insured and shall name as additional insureds insurers (1) Mortgagee and (2) to the extent required by the Material Superior Instrument Requirements, the lessors under any Facility Leases, (B) provide that all insurance proceeds for losses, except in the case of comprehensive general liability insurance and workers' compensation insuranceinsurance or as otherwise provided in Subsections (d), (e) and (f) of this Section 5.10, be payable solely to Mortgagee, subject to any Material Instrument Requirements, (C) include effective waivers (whether under the terms of any such policy or otherwise) by the insurer of all claims for insurance premiums against all loss payees and named insureds insurers (other than Mortgagor) and all rights of subrogation against any named insured, (D) except in the case of comprehensive general liability and workers' compensation insurance, provide that any losses shall be payable notwithstanding (1) any act, failure to act, negligence of, or violation or breach of warranties, declarations or conditions contained in such policy by Mortgagor or Mortgagee or any other named insured or loss payeepayee (including, without limitation, the lessors under the Facility Leases with respect to any Leased Facilities), (2) the occupation or use of the insurable properties for purposes more hazardous than permitted by the terms of the policy, (3) any foreclosure or other proceeding or notice of sale relating to the insurable properties or (4) any change in the title to or owners hip ownership or possession of the insurable properties, (E) contain a non-contributory mortgagee clause in favor of Mortgagee, and (F) provide that if all or any part of such policy is cancelledcanceled, terminated or expires, the insurer will forthwith give notice thereof to each named insured and loss payee and that no cancellation, non-renewal, reduction in amount or material change in coverage thereof shall be effective until at least 30 days after receipt by each named insured and loss payee of written notice thereof. Mortgagor may effect the insurance required under this Section 5.11 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that such policies otherwise comply with this Mortgage and provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties.
(ii) Mortgagor may effect the insurance required under this Section 5.11 5.10 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that (A) such policies otherwise comply with this TCHI Note Guarantee Mortgage, (B) except with respect to flood insurance and earthquake insurance, provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties' properties and (C) in the case of flood insurance provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced below $100,000,000 by reason of claims thereunder against such other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate originals of all insurance policies that Mortgagor is required to maintain pursuant to this Section 5.10. Mortgagee shall not be responsible for effecting or renewing any insurance or for the responsibility or solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee immediately upon obtaining knowledge of any Casualty which (i) results in damage, loss or destruction in an amount in excess of $5,000,000 to any buildings or improvements on the Premises and/or any Tangible Personal Property or (ii) pursuant to any Superior Instrument Requirement, would require the deposit of insurance proceeds with the Insurance Trustee or action or proceeding with respect thereto. Within 30 days after any Casualty which results in any damage, loss or destruction in an amount in excess of $10,000,000 to any buildings or improvements on the Premises and/or any Tangible Personal Property, Mortgagor shall deliver to Mortgagee a certificate of an Architect stating whether, in such Architect's opinion, applicable Legal Requirements permit the Restoration of said buildings and improvements for the same uses and to the same size and quality in all material respects, as existed immediately prior to the Casualty (and if said certificate states that Legal Requirements do not take out separate insurancepermit such Restoration, concurrent in form or contributing in said certificate shall describe the event of loss with that manner closest approximating such criteria to which the buildings and improvements could be so restored and shall be accompanied by a Certificate Of Appraised Value dated not more than 10 days prior to delivery setting forth the Appraised Value immediately prior to the Casualty and the estimated Appraised Value immediately after the Restoration). If Mortgagor is required to deliver such Certificates of Appraised Value and if based on such Certificates of Appraised Value immediately after Restoration, (i) the aggregate Outstanding Amount of Indebtedness of the Mortgagor, the Company or TCHI immediately after such Restoration shall exceed the greater of (A) 80% of the Appraised Value immediately after such Restoration or (B) the quotient of the Outstanding Amount of Indebtedness of the Mortgagor, the Company or TCHI immediately prior to such Casualty divided by the Appraised Value immediately prior to the Casualty multiplied by the Appraised Value immediately after such Restoration, or (ii) applicable Legal Requirements do not permit the Restoration of the Casino Hotel for use as a casino and hotel complex, then, in either of such events, the proceeds of any insurance shall not be maintained applied to Restoration but shall instead be applied to the Senior Indebtedness to the extent of the then Outstanding Amount of the TCHI Notes and any other interest or other sums due hereunder or thereunder to be applied to the satisfaction of this TCHI Note Guarantee Mortgage to the extent proceeds are available for such purpose and provided that no additional sums are due to the trustees or the holders under the Senior Notes, the Senior Note Indenture, the Senior Guarantee, the TCHI Notes, the TCHI Note Indenture, the TCHI Guarantee or the Mortgage Documents, the balance of any net insurance proceeds shall be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than $10,000,000, the net insurance proceeds shall be paid by Mortgagee to Mortgagor.
(ii) If the cost of Restoration is $10,000,000 or more, the net insurance proceeds shall be paid by Mortgagee to the Insurance Trustee.
(iii) Mortgagor shall commence with reasonable promptness under the circumstances and thereafter with due diligence proceed to perform and complete in a good and workmanlike manner the restoration, repair, replacement or rebuilding of the damage or destruction resulting from the Casualty (all such restoration, repair, replacement and rebuilding following a Casualty or a Taking are referred to as "Restoration") in accordance with the plans and specifications submitted to the Insurance Trustee, in conformance with all Legal Requirements and Superior Instrument Requirements, and in accordance with the further provisions of this Subsection (e), regardless of the extent of any such Casualty and whether or not net insurance proceeds, if any, shall be available or, if available, shall be sufficient, for the purpose of the Restoration. All Restoration work shall be performed in accordance with the applicable provisions of Section 5.12 and in conformance with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements and, prior to commencing any Restoration, Mortgagor shall obtain all Permits necessary in connection therewith, and shall obtain, and keep in full force and effect until the completion of such Restoration, such additional insurance as the Insurance Trustee and Superior Instrument Requirements may require. The plans and specifications for the Restoration shall be accompanied by a Mortgagor's Certificate and an Opinion of Counsel to the effect that upon the completion of the Restoration pursuant to the plans and specifications, the Premises and all buildings and improvements thereon will comply with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives shall be held by Mortgagor in trust for the purpose of paying the cost of the Restoration, except as otherwise provided herein.
(v) Any net insurance proceeds that the Insurance Trustee holds pursuant to this Subsection (e), shall be deposited in an interest-bearing investment reasonably designated by Mortgagor (to the extent Mortgagor is permitted to designate such investment under the Superior Instrument Requirements) (and the interest thereon shall be added to such proceeds) and shall be paid by the Insurance Trustee to reimburse Mortgagor for, or to make payment for, the Restoration, after the Insurance Trustee deducts therefrom the amount of any reasonable costs and expenses incurred in connection with the performance of its obligations under this Section 5.115.10. The Insurance Trustee shall make such payments not more frequently than once every 30 days upon the written request of Mortgagor (unless more frequent payments are required by Superior Instrument Requirements), unless by paying to Mortgagor or the same persons named in the certificate described in clause (vi) of this Subsection (e) the respective amounts stated in such certificate from time to time as the Restoration progresses, provided Mortgagor has complied with the requirements of this Subsection (e) and such payment is permitted by Material any applicable Superior Instrument Requirements. Mortgagor's request shall be accompanied by (A) the certificate described in clause (vi) of this Subsection (e) and (B) a title company or official search, or other evidence reasonably acceptable to the Insurance Trustee, showing that there have not been filed with respect to the Premises, any vendor's, contractor's, mechanic's, laborer's or materialman's statutory or similar lien which has not been discharged of record (or bonded against or secured by other security) or any other encumbrance irrespective of its priority (other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this Subsection (e) shall (A) be a Mortgagor's Certificate, countersigned by the Architect in charge of the Restoration with respect to the matters described in (1) and (5) below, (B) be dated not more than 10 days prior to such request and (C) set forth (in addition to any other requirements contained in any applicable Superior Instrument Requirements) that:
(1) all of the Restoration theretofore performed is in substantial compliance with the plans and specifications theretofore submitted to the Insurance Trustee and in compliance with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements;
(2) the sum then requested either has been paid by Mortgagor or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished or contracted to deliver materials for the Restoration therein specified, and the names and addresses of such persons, a brief description of such services and materials and the several amounts so paid or due to each of said persons in respect thereof;
(3) no part of the amount requested has been or is the basis in any previous or then pending request for the withdrawal of net insurance proceeds, and that the sum then requested does not exceed the value of the services and materials described in the certificate;
(4) except for the amount, if any, stated pursuant to subclause (2) of this clause (vi) in such certificate to be due for services or materials, and except for amounts in dispute and/or customary retainages, there is no outstanding indebtedness known to the person signing such certificate, after due inquiry, which is then due for labor, wages, materials, supplies or services in connection with such Restoration; and
(5) the remaining cost, as estimated by the persons signing such certificate, of the Restoration in order to complete the same does not exceed the net insurance proceeds remaining in the hands of Insurance Trustee after payment of the sum requested in such certificate or if such estimated cost does exceed such insurance proceeds such certificate shall state the amount of any such deficiency. If the c
Appears in 1 contract
Sources: Indenture of Mortgage and Security Agreement (Trumps Castle Associates Lp)
To Insure. (a) MortgagorAt all times during the Period, at Mortgagor's expenseto insure and keep insured the Turbine, shall maintain the Tenant’s Equipment and all other structures to be erected by the Tenant on the Property and the Landlord’s Retained Land with Insurers:
the Insurer for the full cost of reinstatement thereof against such commercial risks as may, from time to time, be required by the Tenant including, without prejudice, (i) insurance with risks in respect to Mortgagor's insurable properties constituting a part of the Trust Estate against loss or damage by fire, lightning, explosion, aircraft (other than hostile aircraft) and other risks from time to time included under "all-risk" policies aerial devices or articles dropped therefrom, earthquake, riot, civil commotion and against loss or damage by sprinkler leakage, water malicious damage, collapsestorm or tempest, malicious mischief and explosion flood, impact by road vehicles, (ii) an amount in respect of any steam architects’, engineers’ and pressure boilers other professional fees and similar apparatus located on such insurable propertiesexpenses and the cost of temporary work, removal of debris, dismantling or demolishing, demolition and site clearance (iii) loss of Rent in amounts at all times sufficient to prevent Mortgagor from becoming a coinsurer within the terms event of the applicable policiesTurbine breaking down or ceasing to generate electricity, but said loss of rent insurance to be in any event such insurance shall be maintained in respect of a period of not less than 3 years from the greatest of the following (the "Insurance Amount"): (A) 100% of the then Full Insurable Value of such insurable properties, determined from time to time (but not less frequently than once in any 36 calendar months), by an Independent appraiser or Insurer, (B) the then outstanding principal amount of Indebtedness under the Debt Documents or (C) the amount required date when electricity ceased to be maintained pursuant to the Material Instrument Requirements;
so generated (iiiv) war risk insurance as and when such insurance is obtainable from the United States employers liability insurance, Public Liability Insurance in a sum of America or any agency thereof as promptly as reasonably practicable after the same becomes so obtainable, in an amount not less than TEN MILLION POUNDS (£10,000,000) STERLING for each and every claim arising in respect of the Insurance Amount, or, if such operation of the Turbine and third party liability insurance cannot be obtained in an amount not less than the Insurance Amount, in such lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance, including, without limitation, blanket contractual liability coverage, broad form property damage, independent contractor's coverage and personal injury coverage against any and all claims arising out of or connected with the possession, use,, leasing, operation or condition of such insurable properties, in an amount not less than $100,000,000 combined single limit coverage for personal injury and property damage with respect to any one occurrence, which may be under an umbrella policy. Anything contained in this clause (iii) to the contrary notwithstanding, the Material Instrument Requirements with respect to the kinds and amount of insurance described in this clause (iii) shall be satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent required by law;
(v) business interruption insurance covering not less than 6 months of loss;
(vi) to the extent available for a commercially reasonable premium, flood insurance in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, such lesser amount as may then be so obtainable but in no event less than $100,000,000; and
(vii) such other insurance as the Landlord may reasonably require. The Tenant shall pay all premiums and other monies necessary to keep such insurance in force. Within 3 Working Days of written request, the Tenant shall furnish the Landlord with respect to such insurable properties against loss or damage full written details of the kinds insurance effected in respect of the Development, evidence that all premiums due in respect of same are paid to date and details of the Insurer and shall, thereafter, issue the Landlord with written confirmation, on request (Abut not more often than once per annum) from time to time customarily insured against by persons owning that the minimum level of insurance cover (as required per this Clause) remains in place. The Tenant shall not do or using first-class casino and hotel complexes in Atlantic City, New Jersey and (B) required permit or suffer or omit to be maintained pursuant to any Material Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Material Instrument Requirements, Mortgagor may maintain deductibles with respect to the insurance policies described in clauses (i), (ii), (iii), (v), (vi) and (vii) above in accordance with standard industry practice with respect to the operation of a first-class casino hotel.
(i) Each policy of insurance maintained by Mortgagor pursuant to Section 5.11(a) shall, (A) except in the case of workers' compensation insurance, name Mortgagor as an insured and shall name as additional insureds (1) Mortgagee and (2) to the extent required by the Material Instrument Requirements, the lessors under any Facility Leases, (B) provide that all insurance proceeds for losses, except in the case of comprehensive general liability insurance and workers' compensation insurance, be payable solely to Mortgagee, subject to any Material Instrument Requirements, include effective waivers (whether under the terms of any such policy done anything which might render void or otherwise) by the insurer of all claims for insurance premiums against all loss payees and named insureds (other than Mortgagor) and all rights of subrogation against any named insured, (D) except in the case of comprehensive general liability and workers' compensation insurance, provide that any losses shall be payable notwithstanding (1) any act, failure to act, negligence of, or violation or breach of warranties, declarations or conditions contained in such policy by Mortgagor or Mortgagee or any other named insured or loss payee, (2) the occupation or use of the insurable properties for purposes more hazardous than permitted by the terms of the policy, (3) any foreclosure or other proceeding or notice of sale relating to the insurable properties or (4) any change in the title to or owners hip or possession of the insurable properties, (E) contain a non-contributory mortgagee clause in favor of Mortgagee, and (F) provide that if all or any part of such policy is cancelled, terminated or expires, the insurer will forthwith give notice thereof to each named insured and loss payee and that no cancellation, non-renewal, reduction in amount or material change in coverage thereof shall be effective until at least 30 days after receipt by each named insured and loss payee of written notice thereof. Mortgagor may effect the insurance required under this Section 5.11 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that such policies otherwise comply with this Mortgage and provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties.
(ii) Mortgagor may effect the insurance required under this Section 5.11 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that (A) such policies otherwise comply with this Mortgage, (B) except with respect to flood insurance and earthquake insurance, provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties' and (C) in the case of flood insurance provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced below $100,000,000 by reason of claims thereunder against such other properties.
(c) Mortgagee shall not be responsible for effecting or renewing voidable any insurance or for the responsibility or solvency of the insurers.
(d) Mortgagor shall not take out separate insurance, concurrent in form or contributing in the event of loss with that required policy to be maintained pursuant to this Section 5.11Clause and in all cases, unless the same level of cover to be maintained by the Tenant pursuant to this Lease shall be commensurate with the level which a prudent wind turbine operator would normally insure or as is permitted otherwise reasonably required by Material Instrument Requirementsthe Landlord. The Tenant shall use reasonable endeavours to procure that the Landlord’s interest is noted on the insurance policy or policies to be effected pursuant to this Clause and that the Insurers waive any subrogation rights against the Landlord. The Tenant shall advise the Landlord forthwith, in writing, of any change in insurance details, terms or conditions or any change in insurance cover effected pursuant to this Clause.
6.10.1 Prior to the Date of Commissioning of the Turbine on the Property, the Tenant will establish a performance bond (on terms which are wholly satisfactory to the Landlord, the Landlord being bound to act reasonably in this regard) with a substantial financial institution which performance bond (hereinafter referred to as ‘’the Bond’’)will be capable of being called upon by inter alia the Landlord (but for the avoidance of doubt, not by the Tenant) in the event of a failure by the Tenant to perform and observe the obligations relating to decommissioning of the Development and restoration of the Property contained in the Planning Permission and which Bond will be capable of being called upon by the Landlord alone in the event of a failure by the Tenant to perform and observe the whole terms and conditions of this Lease.
6.10.2 The Bond shall, at all times during the period of this Lease operate so as to secure a sum not less than the Restoration Sum at any given time and the Tenant shall do all that is required, at its own cost, to ensure this is the case.
6.10.3 At every fifth anniversary of the Date of Commissioning (hereinafter referred to ‘’Restoration Review Date’’), the Restoration Sum shall be subject to review (upwards only), the purpose of such review being to agree or determine the cost of decommissioning of the Development and restoration and reinstatement of the Property in terms of the Planning Permission and this Lease, as at the relevant Restoration Review Date, and the cost of compliance with the whole conditions of the Planning Permission so that the Restoration Sum shall, at all times during the Period of this Lease be sufficient to cover the proper and reasonable costs of compliance with the restoration and reinstatement obligations of the Tenant under this Lease, the Planning Permission relating to the Development and the Planning Permission and the cost of compliance with the whole conditions of any such Planning Permission; Provided always that: -
(i) the whole proper and reasonable costs of such review (including those of the Landlord) shall be borne by the Tenant;
(ii) in the event that the Landlord and Tenant have not agreed on a revised Restoration Sum within 28 days after the relevant Restoration Review Date, either party shall be entitled to refer the matter for determination to a suitably experienced independent valuer, to be agreed between the parties or, failing agreement within 14 days, to a suitably experienced valuer appointed by the Chairman or Senior Office Holder for the time being of Scottish Branch of The Royal Institution of Chartered Surveyors ,on the application of either party The determination or determinations of the valuer shall be final and binding on the parties in accordance with the Law of Scotland (save in the case of manifest error) and the cost of the valuer shall be met by the parties as the valuer may determine and failing such determination, in equal shares. Within 14 days of the date upon which the valuer is agreed upon or appointed as aforesaid the Landlord and the Tenant shall each be entitled to submit, in duplicate, to the valuer, written valuations, statements and other evidence relating to or supporting their assessment of the revised Restoration Sum. The valuer shall, if so requested by written notice from one party (a copy of which shall be served on the other party) hold a hearing at which both parties may be heard and that at such time or times and such place or places as such valuer shall appoint for that purpose. The valuer shall provide his reasoned determination, in writing, provided always that if such valuer dies or is, for any other reason, unable to act before he shall have given his decision then, either party hereto may request the Chairman or Senior Office Holder aforesaid to nominate a further valuer to act on the terms of this sub-clause. The fees payable to the Chairman and any such substitute valuer (and the original valuer who could not deliver his decision) shall be borne and paid by the parties hereto in such shares and in such manner as such valuer shall determine and failing any such decision, in equal shares.
(iii) By the date occurring 28 days after any such increased level of the Restoration Sum has been agreed or determined as aforesaid, the Tenant shall either provide evidence satisfactory to the Landlord (acting reasonably) that the provider of the said bond has given effect to said increase or (iii) deliver to the Landlord, a replacement bond satisfactory to the Landlord (acting reasonably) securing the total increased sum, and all references to the Restoration Sum shall be construed as references to the Restoration Sum as so increased.
(iv) For the avoidance of doubt, the Tenant shall be responsible for any shortfall between (i) the Restoration Sum and (ii) the cost of decommissioning of the Development and restoration and reinstatement of the Property as aforesaid and compliance with their obligations under this Lease in respect of restoration and the cost of compliance with the whole conditions of the said planning permission for the Development.
6.10.4 Nothing in this Clause 6.10 shall oblige the Tenant to provide any Restoration Bond or other restoration fund to the extent that this would duplicate any other Restoration Sum or Bond already provided to any third party (including the local planning authority) in respect of the Tenant’s restoration obligations in this Lease or the planning permission for the Development.
6.10.5 Provided that the Tenant has complied with its decommissioning and restoration obligations in terms of this Lease and the Planning Permission for the Development and the Landlord and the relevant planning authority are satisfied acting reasonably that the Tenant has done so in full, the Tenant shall be entitled to cancel the Bond or such part as has not been utilised by the Landlord in terms of this Clause 6.10.
Appears in 1 contract
Sources: Lease Agreement
To Insure. (a) Mortgagor, at Mortgagor's expense, shall maintain with Insurers:
(i) insurance with respect to Mortgagor's insurable properties constituting a part of the Trust Estate against loss or damage by fire, lightning, and other risks from time to time included under "all-risk" policies and against loss or damage by sprinkler leakage, water damage, collapse, malicious mischief and explosion in respect of any steam and pressure boilers and similar apparatus located on such insurable properties, in amounts at all times sufficient to prevent Mortgagor from becoming a coinsurer within the terms of the applicable policies, but in any event such insurance shall be maintained in not less than the greatest of the following (the "Insurance Amount"): (A) 100% of the then Full Insurable Value of such insurable properties, determined from time to time (but not less frequently than once in any 36 calendar months), by an Independent appraiser Appraiser or Insurer, (B) the then outstanding principal amount Outstanding Amount of Indebtedness under Mortgage Debt, including the Debt Documents Senior Partnership Note, or (C) the amount required to be maintained pursuant to the Material Superior Instrument Requirements;
(ii) war risk insurance as and when such insurance is obtainable from the United States of America or any agency thereof as promptly as reasonably practicable after the same becomes so obtainable, in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, in such lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance, including, without limitation, blanket contractual liability coverage, broad form property damage, independent contractor's coverage and personal injury coverage against any and all claims arising out of or connected with the possession, use,, leasing, operation or condition of such insurable properties, in an amount not less than $100,000,000 combined single limit coverage for personal injury and property damage with respect to any one occurrence, which may be under an umbrella policy. Anything contained in this clause (iii) to the contrary notwithstanding, the Material Superior Instrument Requirements with respect to the kinds and amount of insurance described in this clause (iii) shall be satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent required by law;
(v) business interruption insurance covering not less than 6 months of loss, provided that, at any time that Mortgagor is renewing any policy for such insurance or taking out any new or replacement policy for such insurance covering a period of less than 12 months, Mortgagor shall deliver to Mortgagee an Officers' Certificate certifying that the period of coverage to be maintained by Mortgagor under such policy is the maximum that can be maintained at rates determined by Mortgagor to be reasonable for such coverage;
(vi) to the extent available for a commercially reasonable premiumavailable, flood insurance in an amount not less than the Insurance Amount, or, if such insurance cannot be obtained in an amount not less than the Insurance Amount, such lesser amount as may then be so obtainable but in no event less than $100,000,000; and
(vii) such other insurance with respect to such insurable properties against loss or damage of the kinds (A) from time to time customarily insured against by persons owning or using first-class casino and hotel complexes in Atlantic City, New Jersey and (B) required to be maintained pursuant to any Material Superior Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Material Superior Instrument Requirements, (A) Mortgagor may maintain deductibles a deductible with respect to the insurance policies described in clauses (i), (ii), (iii), (v), (vi) and (vii) above in accordance with standard industry practice an amount not to exceed $250,000, (B) Mortgagor may maintain a deductible with respect to the operation of insurance policies described in clause (iii) in an amount not to exceed $500,000, and (C) Mortgagor may maintain a first-class casino hoteldeductible with respect to the insurance policies described in clause (v) in an amount not to exceed $1,000,000.
(i) Each policy of insurance maintained by Mortgagor pursuant to Section 5.11(a5.10(a) shall, (A) except in the case of workers' compensation insurance, name Mortgagor as an insured and shall name as additional insureds (1) Mortgagee and (2) to the extent required by the Material Superior Instrument Requirements, the lessors under any Facility Leases, (B) provide that all insurance proceeds for losses, except in the case of comprehensive general liability insurance and workers' compensation insuranceinsurance or as otherwise provided in Subsections (d), (e) and (f) of this Section 5.10, be payable solely to Mortgagee, subject to any Material Instrument Requirements, (C) include effective waivers (whether under the terms of any such policy or otherwise) by the insurer of all claims for insurance premiums against all loss payees and named insureds (other than Mortgagor) and all rights of subrogation against any named insured, (D) except in the case of comprehensive general liability and workers' compensation insurance, provide that any losses shall be payable notwithstanding (1) any act, failure to act, negligence of, or violation or breach of warranties, declarations or conditions contained in such policy by Mortgagor or Mortgagee or any other named insured or loss payeepayee (including, without limitation, the lessors under the Facility Leases, with respect to any Leased Facilities, (2) the occupation or use of the insurable properties for purposes more hazardous than permitted by the terms of the policy, (3) any foreclosure or other proceeding or notice of sale relating to the insurable properties or (4) any change in the title to or owners hip ownership or possession of the insurable properties, (E) contain a non-contributory mortgagee clause in favor of Mortgagee, and (F) provide that if all or any part of such policy is cancelledcanceled, terminated or expires, the insurer will forthwith give notice thereof to each named insured and loss payee and that no cancellation, non-renewal, reduction in amount or material change in coverage thereof shall be effective until at least 30 days after receipt by each named insured and loss payee of written notice thereof. Mortgagor may effect the insurance required under this Section 5.11 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that such policies otherwise comply with this Mortgage and provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties.
(ii) Mortgagor may effect the insurance required under this Section 5.11 5.10 under blanket and/or umbrella policies covering properties owned or leased by Affiliates of Mortgagor; provided, that (A) such policies otherwise comply with this Mortgagemortgage, (B) except with respect to flood insurance and earthquake insurance, provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced by claims thereunder against such other properties' properties and (C) in the case of flood insurance provide that the amount of coverage afforded thereunder with respect to the Trust Estate shall not be reduced below $100,000,000 by reason of claims thereunder against such other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate originals of all insurance policies that Mortgagor is required to maintain pursuant to this Section 5.10. Mortgagee shall not be responsible for effecting or renewing any insurance or for the responsibility or solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee immediately upon obtaining knowledge of any Casualty which (i) results in damage, loss or destruction in an amount in excess of $5,000,000 to any buildings or improvements on the Premises and/or any Tangible Personal Property or (ii) pursuant to any Superior Instrument Requirement would require the deposit of insurance proceeds with the Insurance Trustee, or action or proceeding with respect thereto. Within 30 days after any Casualty which results in any damage, loss or destruction in an amount in excess of $10,000,000 to any buildings or improvements on the Premises and/or any Tangible Personal Property, Mortgagor shall deliver to Mortgagee a certificate of an Architect stating whether, in such Architect's opinion, applicable Legal Requirements permit the Restoration of said buildings and improvements for the same uses and to the same size and quality in all material respects, as existed immediately prior to the Casualty (and if said certificate states that Legal Requirements do not take out separate insurancepermit such Restoration, concurrent in form or contributing in said certificate shall describe the event of loss with that manner closest approximating such criteria to which the buildings and improvements could be so restored and shall be accompanied by a Certificate Of Appraised Value dated not more than 10 days prior to delivery setting forth the Appraised Value immediately prior to the Casualty and the estimated Appraised Value immediately after the Restoration). If Mortgagor is required to deliver such Certificates of Appraised Value and if based on such Certificates of Appraised Value immediately after Restoration, (i) the aggregate Outstanding Amount of Indebtedness of the Mortgagor, the Company or TCHI immediately after such Restoration shall exceed the greater of (A) 80% of the Appraised Value immediately after such Restoration or (B) the quotient of the Outstanding Amount of Indebtedness of the Mortgagor, the Company or TCHI immediately prior to such Casualty divided by the Appraised Value immediately prior to the Casualty multiplied by the Appraised Value immediately after such Restoration, or (ii) applicable Legal Requirements do not permit the Restoration of the Casino Hotel for use as a casino and hotel complex, then, in either of such events, the proceeds of any insurance shall not be maintained applied to Restoration but shall instead be paid and delivered to Mortgagee to the extent of the then Outstanding Amount of the Senior Partnership Note and any other interest or other sums due hereunder or thereunder to be applied to the satisfaction of this Mortgage to the extent proceeds are available for such purpose and provided that no additional sums are due to the Trustee or the Holders under the Senior Notes, the Senior Note Indenture, the Senior Guarantee, the TCHI Notes, the TCHI Note Indenture, the TCHI Guarantee, the Mortgage Notes or the Mortgage Note Indenture, the balance of any net insurance proceeds shall be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than $10,000,000, the net insurance proceeds shall be paid by Mortgagee to Mortgagor.
(ii) If the cost of Restoration is $10,000,000 or more, the net insurance proceeds shall be paid by Mortgagee to the Insurance Trustee.
(iii) Mortgagor shall commence with reasonable promptness under the circumstances and thereafter with due diligence proceed to perform and complete in a good and workmanlike manner the restoration, repair, replacement or rebuilding of the damage or destruction resulting from the Casualty (all such restoration, repair, replacement and rebuilding following a Casualty or a Taking are referred to as "Restoration") in accordance with the plans and specifications submitted to the Insurance Trustee, in conformance with all Legal Requirements and Superior Instrument Requirements, and in accordance with the further provisions of this Subsection (e), regardless of the extent of any such Casualty and whether or not net insurance proceeds, if any, shall be available or, if available, shall be sufficient, for the purpose of the Restoration. All Restoration work shall be performed in accordance with the applicable provisions of Section 5.12 and in conformance with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements and, prior to commencing any Restoration, Mortgagor shall obtain all Permits necessary in connection therewith, and shall obtain, and keep in full force and effect until the completion of such Restoration, such additional insurance as the Insurance Trustee and Superior Instrument Requirements may require. The plans and specifications for the Restoration shall be accompanied by a Mortgagor's Certificate and an Opinion of Counsel to the effect that upon the completion of the Restoration pursuant to the plans and specifications, the Premises and all buildings and improvements thereon will comply with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives shall be held by Mortgagor in trust for the purpose of paying the cost of the Restoration, except as otherwise provided herein.
(v) Any net insurance proceeds that the Insurance Trustee holds pursuant to this Subsection (e), shall be deposited in an interest-bearing investment reasonably designated by Mortgagor (to the extent Mortgagor is permitted to designate such investment under the Superior Instrument Requirements) (and the interest thereon shall be added to such proceeds) and shall be paid by the Insurance Trustee to reimburse Mortgagor for, or to make payment for, the Restoration, after the Insurance Trustee deducts therefrom the amount of any reasonable costs and expenses incurred in connection with the performance of its obligations under this Section 5.115.10. The Insurance Trustee shall make such payments not more frequently than once every 30 days upon the written request of Mortgagor (unless more frequent payments are required by Superior Instrument Requirements), unless by paying to Mortgagor or the same persons named in the certificate described in clause (vi) of this Subsection (e) the respective amounts stated in such certificate from time to time as the Restoration progresses, provided Mortgagor has complied with the requirements of this Subsection (e) and such payment is permitted by Material any applicable Superior Instrument Requirements. Mortgagor's request shall be accompanied by (A) the certificate described in clause (vi) of this Subsection (e) and (B) a title company or official search, or other evidence reasonably acceptable to the Insurance Trustee, showing that there have not been filed with respect to the Premises, any vendor's, contractor's, mechanic's, laborer's or materialman's statutory or similar lien which has not been discharged of record (or bonded against or secured by other security) or any other encumbrance irrespective of its priority (other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this Subsection (e) shall (A) be a Mortgagor's Certificate, countersigned by the Architect in charge of the Restoration with respect to the matters described in (1) and (5) below, (B) be dated not more than 10 days prior to such request and (C) set forth (in addition to any other requirements contained in any applicable Superior Instrument Requirements) that:
(1) all of the Restoration theretofore performed is in substantial compliance with the plans and specifications theretofore submitted to the Insurance Trustee and in compliance with all Superior Instrument Requirements, Legal Requirements and Insurance Requirements;
(2) the sum then requested either has been paid by Mortgagor or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished or contract to deliver materials for the Restoration therein specified, and the names and addresses of such persons, a brief description of such services and materials and the several amounts so paid or due to each of said persons in respect thereof;
(3) no part of the amount requested has been or is the basis in any previous or then pending request for the withdrawal of net insurance proceeds, and that the sum then requested does not exceed the value of the services and materials described in the certificate;
(4) except for the amount, if any, stated pursuant to subclause (2) of this clause (vi) in such certificate to be due for services or materials, and except for amounts in dispute and/or customary retainages, there is no outstanding indebtedness Known to the person signing such certificate, after due inquiry, which is then due for labor, wages, materials, supplies or services in connection with such Restoration; and
(5) the remaining cost, as estimated by the persons signing such certificate, of the Restoration in order to complete the same does not exceed the net insurance proceeds remaining in the hands of Insurance Trustee after payment of the sum requested in such certificate or if such estimated cost does exceed such insurance proceeds such certificate shall state the amount of any such deficiency. If the certifica
Appears in 1 contract
Sources: Indenture of Mortgage and Security Agreement (Trumps Castle Associates Lp)