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 Appraiser or Insurer, (B) the then Outstanding Amount of Mortgage Debt, including the Senior Partnership Note, or (C) the amount required to be maintained pursuant to the 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 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, 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 Superior Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Superior Instrument Requirements, (A) Mortgagor may maintain a deductible with respect to the insurance policies described in clauses (i), (ii), (vi) and (vii) in an amount not to exceed $250,000, (B) Mortgagor may maintain a deductible with respect to the insurance policies described in clause (iii) in an amount not to exceed $500,000, and (C) Mortgagor may maintain a deductible 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 5.10(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 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 insurance or as otherwise provided in Subsections (d), (e) and (f) of this Section 5.10, be payable solely to Mortgagee, (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 payee (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 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 canceled, 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. (ii) Mortgagor may effect the insurance required under this Section 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 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) 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 permit such Restoration, 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 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 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 5.10. 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), by paying to Mortgagor or the 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 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)
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 Appraiser or Insurer, (B) the then Outstanding Amount of Mortgage Debt, including the Senior Partnership Upstream Note, or (C) the amount required to be maintained pursuant to the 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 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, 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 Superior Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Superior Instrument Requirements, (A) Mortgagor may maintain a deductible with respect to the insurance policies described in clauses (i), (ii), (vi) and (vii) in an amount not to exceed $250,000, (B) Mortgagor may maintain a deductible with respect to the insurance policies described in clause (iii) in an amount not to exceed $500,000, and (C) Mortgagor may maintain a deductible 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 5.10(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 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 insurance or as otherwise provided in Subsections (d), (e) and (f) of this Section 5.10, be payable solely to Mortgagee, (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 payee (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 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 canceled, 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.
(ii) Mortgagor may effect the insurance required under this Section 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 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) 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 permit such Restoration, 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 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 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 5.10. 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), by paying to Mortgagor or the 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 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 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 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)
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 Appraiser Independent appraiser or Insurer, (B) the then Outstanding Amount outstanding principal amount of Mortgage Debt, including Indebtedness under the Senior Partnership Note, Debt Documents or (C) the amount required to be maintained pursuant to the Superior 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 Superior 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, 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 availableavailable 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 Superior Material Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Superior Material Instrument Requirements, (A) Mortgagor may maintain a deductible deductibles with respect to the insurance policies described in clauses (i), (ii), (iii), (v), (vi) and (vii) above in an amount not to exceed $250,000, (B) Mortgagor may maintain a deductible accordance with standard industry practice with respect to the insurance policies described in clause (iii) in an amount not to exceed $500,000, and (C) Mortgagor may maintain operation of a deductible with respect to the insurance policies described in clause (v) in an amount not to exceed $1,000,000first-class casino hotel.
(i) Each policy of insurance maintained by Mortgagor pursuant to Section 5.10(a5.11(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 Superior 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 or as otherwise provided in Subsections (d), (e) and (f) of this Section 5.10insurance, be payable solely to Mortgagee, (C) 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 (including, without limitation, the lessors under the Facility Leases, with respect to any Leased Facilitiespayee, (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 ownership 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 canceledcancelled, 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 5.10 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 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 not take out separate insurance, concurrent in form or contributing in the event 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 permit such Restoration, 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 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 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 maintained pursuant to this Subsection (e)Section 5.11, shall be deposited in an interest-bearing investment reasonably designated by Mortgagor (to unless 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 5.10. 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), by paying to Mortgagor or the 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 same is permitted by any applicable Superior Material 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: 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 Appraiser or Insurer, (B) the then Outstanding Amount of Mortgage Debt, including the Senior Partnership Note, or (C) the amount required to be maintained pursuant to the 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 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, 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 Superior Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Superior Instrument Requirements, (A) Mortgagor may maintain a deductible with respect to the insurance policies described in clauses (i), (ii), (vi) and (vii) in an amount not to exceed $250,000, (B) Mortgagor may maintain a deductible with respect to the insurance policies described in clause (iii) in an amount not to exceed $500,000, and (C) Mortgagor may maintain a deductible 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 5.10(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 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 insurance or as otherwise provided in Subsections (d), (e) and (f) of this Section 5.10, be payable solely to Mortgagee, (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 payee (including, without limitation, the lessors under the Facility Leases, 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 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 canceled, 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.
(ii) Mortgagor may effect the insurance required under this Section 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 mortgageSenior 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 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 Requirement, would require the deposit of insurance proceeds with the Insurance Trustee, 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 permit such Restoration, 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 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 applied to Restoration but shall instead be paid and delivered applied to Mortgagee the Senior Indebtedness to the extent of the then Outstanding Amount of the Senior Partnership Note Notes 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 Senior Guarantee Mortgage. Provided that no additional sums are due to the Trustee trustees or the Holders 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 Notes, or the Mortgage Note Indenture, the balance of any net insurance proceeds after the payments described in the immediately preceding sentence 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 5.10. 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), by paying to Mortgagor or the 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 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 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 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 certificacertifi
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 Appraiser or Insurer, (B) the then Outstanding Amount of Mortgage Debt, including the Senior Partnership Note, or (C) the amount required to be maintained pursuant to the 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 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, 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 Superior Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Superior Instrument Requirements, (A) Mortgagor may maintain a deductible with respect to the insurance policies described in clauses (i), (ii), (vi) and (vii) in an amount not to exceed $250,000, (B) Mortgagor may maintain a deductible with respect to the insurance policies described in clause (iii) in an amount not to exceed $500,000, and (C) Mortgagor may maintain a deductible 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 5.10(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 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 insurance or as otherwise provided in Subsections (d), (e) and (f) of this Section 5.10, be payable solely to Mortgagee, (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 payee (including, without limitation, the lessors under the Facility Leases, 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 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 canceled, 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.
(ii) Mortgagor may effect the insurance required under this Section 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 mortgageTCHI 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 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 Requirement, would require the deposit of insurance proceeds with the Insurance Trustee, 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 permit such Restoration, 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 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 applied to Restoration but shall instead be paid and delivered applied to Mortgagee the Senior Indebtedness to the extent of the then Outstanding Amount of the Senior Partnership Note 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 Trustee trustees or the Holders 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 Guarantee or the Mortgage Note IndentureDocuments, 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 5.10. 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), by paying to Mortgagor or the 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 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 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 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 certificac
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 Appraiser Independent appraiser or Insurer, (B) the then Outstanding Amount outstanding principal amount of Mortgage Debt, including Indebtedness under the Senior Partnership Note, Debt Documents or (C) the amount required to be maintained pursuant to the Superior 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 Superior 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, 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 availableavailable 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 Superior Material Instrument Requirements. Notwithstanding the foregoing, to the extent not violative of any Superior Material Instrument Requirements, (A) Mortgagor may maintain a deductible deductibles with respect to the insurance policies described in clauses (i), (ii), (iii), (v), (vi) and (vii) above in an amount not to exceed $250,000, (B) Mortgagor may maintain a deductible accordance with standard industry practice with respect to the insurance policies described in clause (iii) in an amount not to exceed $500,000, and (C) Mortgagor may maintain operation of a deductible with respect to the insurance policies described in clause (v) in an amount not to exceed $1,000,000first-class casino hotel.
(i) Each policy of insurance maintained by Mortgagor pursuant to Section 5.10(a5.11(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 Superior 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 or as otherwise provided in Subsections (d), (e) and (f) of this Section 5.10insurance, be payable solely to Mortgagee, (C) 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 (including, without limitation, the lessors under the Facility Leases, with respect to any Leased Facilitiespayee, (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 ownership 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 canceledcancelled, 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 5.10 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 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 not take out separate insurance, concurrent in form or contributing in the event 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 permit such Restoration, 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 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 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 maintained pursuant to this Subsection (e)Section 5.11, shall be deposited in an interest-bearing investment reasonably designated by Mortgagor (to unless 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 5.10. 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), by paying to Mortgagor or the 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 same is permitted by any applicable Superior Material 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: Mortgage and Security Agreement (Trump Communications LLC)