Exhibit 10.92
--------------------------------------------------------------------------------
(Space above reserved for Recorder of Deeds certification)
Title of Document: AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF
RENTS, SECURITY
AGREEMENT
AND FIXTURE FILING
Date of Document:
January 13, 2006
Grantor(s): GM Olathe, LLC
Grantee(s): Keybank National Association
Grantee(s) Mailing Address: 127 Public Square, Cleveland, Ohio
44114
Legal Description:
See
attached Exhibit A
Reference Book and Pages (s): Document No. ______________, Book
___, Page ___
(If there is not sufficient space on this page for the information
required,
state the
page reference where it is contained within the document.)
(This Document Serves as a Fixture Filing under Section 84-9-502 of
the Kansas
Statutes
Annotated.)
Grantor's
Organizational Identification Number is: 3625332
<PAGE>
AMENDED AND RESTATED MORTGAGE,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
FIXTURE FILING
MADE BY
GM OLATHE, LLC
as Mortgagor
to
KEYBANK NATIONAL ASSOCIATION
as Mortgagee
"THE
TOTAL AMOUNT OF PRINCIPAL INDEBTEDNESS SECURED BY THIS MORTGAGE
SHALL
NOT EXCEED, AT ANY ONE TIME, THE SUM OF $30,000,000 AS TO THE
PROPERTY LOCATED
IN THE STATE OF KANSAS."
This
Mortgage amends and restates in its entirety that certain Amended
and
Restated Fee and Leasehold Mortgage, Assignment of Leases and Rents
and Security
Agreement dated as of June 9, 2004 made by Mortgagor in favor of
Morgan Stanley
Capital Mortgage Inc. ("Original Mortgagee") and recorded June 18,
2004 in Book
200406 at Page 009178 with the Register of Deeds, Johnson County,
Kansas in the
amount of $30,000,000 and that certain Assignment of Leases and
Rents of even
date therewith made by Mortgagor in favor of the Original Mortgagee
and recorded
June 18, 2004 in Book 200406 at Page 009179 with the Register of
Deeds, Johnson
County, Kansas, as such Amended and Restated Fee and Leasehold
Mortgage,
Assignment of Leases and Rents and Security Agreement and
Assignment of Leases
and Rents have been assigned to Mortgagee by the successor to the
Original
Mortgagee, LaSalle Bank National Association as Trustee, pursuant
to that
certain Assignment of Amended and Restated Fee and Leasehold
Mortgage,
Assignment of Leases and Rents and Security Agreement and that
certain
Assignment of Assignment of Leases and Rents, each dated January
10, 2006.
A
Mortgage tax has been paid in full on the Mortgage with respect to
said
$30,000,000 principal amount and there have been no additional loan
proceeds
advanced under this Mortgage in connected with this Amendment and
Restatement.
This
Mortgage is to be cross-indexed in the Uniform Commercial Code
Records
as a fixture filing.
---------------------------
Dated as of: January 13, 2006
PREPARED BY AND UPON RECORDATION RETURN TO:
Sonnenschein Nath & Rosenthal LLP
8000 Sears Tower
233 South Wacker
Chicago, Illinois 60606
Attention: Patrick G. Moran, Esq.
<PAGE>
AMENDED AND RESTATED MORTGAGE,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND
FIXTURE FILING
Project Common Known As
"The Great Mall of the Great Plains, Olathe, Kansas"
THIS
AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT
AND FIXTURE FILING (this "Mortgage") is made as of July 31, 2005,
by GM OLATHE,
LLC, a Delaware limited liability Company ("Mortgagor") whose
address is 150
East Gay Street, Columbus, Ohio 43215, and KEYBANK NATIONAL
ASSOCIATION, as
administrative agent for itself and one or more Lenders (as defined
in that
certain Term Loan Agreement bearing the date January __, 2006 by
and among
Mortgagor and Glimcher Properties Limited Partnership, a Delaware
limited
partnership (collectively, the "Borrower"), such Lenders and
KEYBANK NATIONAL
ASSOCIATION, as administrative agent, hereinafter the "Term Loan
Agreement"),
(together with its successors and assigns, the "Mortgagee"), whose
address is
127 Public Square, Cleveland, Ohio 44114.
1. Grant and
Secured Obligations.
1.1
Grant. Borrower has executed and delivered to the Lenders
certain
promissory notes (such promissory notes, together with any
amendments or
allonges thereto, or restatements, replacements or renewals
thereof, are
collectively referred to herein as the "Notes"), in and by which
the Borrower
promises to pay the principal of all Loans under such Term Loan
Agreement and
interest at the rate and in installments as provided in the Notes,
with a final
payment of the outstanding principal balance and accrued and unpaid
interest
being due on or before January 12, 2009. The maximum aggregate
principal amount
of the Loans evidenced by the Notes shall be $30,000,000. The
indebtedness
secured hereby shall be governed by the terms and conditions of the
Term Loan
Agreement. To the extent there may be any inconsistency between the
terms and
provisions of this Mortgage and the terms and provisions of the
Term Loan
Agreement, the terms and provisions of the Term Loan Agreement
shall govern and
control. All capitalized terms used herein and not otherwise
defined shall have
the meanings ascribed to such terms in the Term Loan Agreement.
In
consideration of the debt evidenced by the Notes and to secure
the
timely payment of both principal and interest in accordance with
the terms and
provisions of the Notes and in accordance with the terms,
provisions and
limitations of this Mortgage, to secure the payment of any and all
amounts
advanced by the Administrative Agent or the Lenders with respect to
the Premises
for the payment of taxes, assessments, insurance premiums or any
other costs
incurred in the protection of the Premises, and to secure the
performance of the
covenants and agreements contained herein and in the Notes, the
Term Loan
Agreement, and any other documents evidencing and securing the loan
secured
hereby or delivered to Mortgagee pursuant to the Term Loan
Agreement
(collectively, the "Loan Documents") to be performed by Mortgagor,
and to secure
all Rate Management Transactions entered into with the
Administrative Agent or
any of the Lenders in connection with the Term Loan Agreement, and
for the
purpose of securing payment and performance of the Secured
Obligations defined
and described in Section 1.2 below, Mortgagor does by these
presents grant,
bargain, sell, convey, assign and grant a security interest in,
mortgage and
warrant unto Mortgagee and its successors and assigns forever, all
estate,
right, title and interest which Mortgagor now has or may later
acquire in and to
the following property (all or any part of such property, or any
interest in all
or any part of it, as the context may require, the "Property"):
<PAGE>
(a) The real property located in the County of Johnson, State
of
Kansas, as described in Exhibit A, together with all existing and
future
easements and rights affording access to it (the "Premises");
together with
(b) All buildings, structures and improvements now located or later
to
be
constructed on the Premises (the "Improvements"); together with
(c) All existing and future appurtenances, privileges,
easements,
franchises and tenements of the Premises, including all minerals,
oil, gas,
other hydrocarbons and associated substances, sulphur, nitrogen,
carbon
dioxide, helium and other commercially valuable substances which
may be in,
under or produced from any part of the Premises, all development
rights and
credits, air rights, water, water rights (whether riparian,
appropriative
or
otherwise, and whether or not appurtenant) and water stock, and
any
Premises lying in the streets, roads or avenues, open or proposed,
in front
of
or adjoining the Premises and Improvements; together with
(d) All existing and future leases, subleases, subtenancies,
licenses,
occupancy agreements and concessions ("leases") relating to the use
and
enjoyment of all or any part of the Premises and Improvements, and
any and
all
guaranties and other agreements relating to or made in connection
with
any
of such leases; together with
(e) All real property and improvements on it, and all
appurtenances
and
other property and interests of any kind or character, whether
described in Exhibit A or not, which may be reasonably necessary
or
desirable to promote the present and any reasonable future
beneficial use
and
enjoyment of the Premises and Improvements; together with
(f) All goods, materials, supplies, chattels, furniture,
fixtures,
equipment and machinery now or later to be attached to, placed in
or on, or
used
in connection with the use, enjoyment, occupancy or operation of
all
or
any part of the Premises and Improvements, whether stored on
the
Premises or elsewhere, including all pumping plants, engines,
pipes,
ditches and flumes, and also all gas, electric, cooking, heating,
cooling,
air
conditioning, lighting, refrigeration and plumbing fixtures and
equipment, all of which shall be considered to the fullest extent
of the
law
to be real property for purposes of this Mortgage and any
manufacturer's warranties with respect thereto; together with
(g) All building materials, equipment, work in process or other
personal property of any kind, whether stored on the Premises or
elsewhere,
which have been or later will be acquired for the purpose of
being
delivered to, incorporated into or installed in or about the
Premises or
Improvements; together with
(h) All of Mortgagor's interest in and to all operating
accounts
pertaining to the Property and the Loan funds, whether disbursed or
not;
together with
(i) All rights to the payment of money, accounts, accounts
receivable,
reserves, deferred payments, refunds, cost savings, payments and
deposits,
whether now or later to be received from third parties (including
all
earnest money sales deposits) or deposited by Mortgagor with third
parties
(including all utility deposits), contract rights, development and
use
rights, governmental permits and licenses, applications,
architectural and
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<PAGE>
engineering plans, specifications and drawings, as-built drawings,
chattel
paper, instruments, documents, notes, drafts and letters of credit
(other
than
letters of credit in favor of Mortgagee), which arise from or
relate
to
construction on the Premises or to any business now or later to
be
conducted on it, or to the Premises and Improvements generally and
any
builder's or manufacturer's warranties with respect thereto;
together with
(j) All insurance policies pertaining to the Premises and all
proceeds, including all claims to and demands for them, of the
voluntary or
involuntary conversion of any of the Premises, Improvements or the
other
property described above into cash or liquidated claims, including
proceeds
of
all present and future fire, hazard or casualty insurance policies
and
all
condemnation awards or payments now or later to be made by any
public
body
or decree by any court of competent jurisdiction for any taking or
in
connection with any condemnation or eminent domain proceeding, and
all
causes of action and their proceeds for any damage or injury to
the
Premises, Improvements or the other property described above or any
part of
them, or breach of warranty in connection with the construction of
the
Improvements, including causes of action arising in tort, contract,
fraud
or
concealment of a material fact; together with
(k) All of Mortgagor's right, title and interest in and to that
certain Lease Agreement dated as of June 1, 1996 between the City
of
Olathe, Kansas, a Kansas municipal corporation, as landlord, and
Olathe
Mall
LLC, a Colorado limited liability company, as tenant, a memorandum
of
which was recorded with the Register of Deeds in Johnson County,
Kansas in
Liber 4924, page 375; as assigned by that certain Assignment of
Lease
Agreement dated as of June 1, 1996 by the City of Olathe, Kansas to
The
Huntington National Bank, a national banking association, and
recorded with
the
Register of Deeds in Johnson County, Kansas in Liber 4924, page
381; as
further assigned by that certain Assignment of Lease Agreement
dated
November 26, 1996 by Olathe Mall LLC to Great Plains Metromall,
LLC, a
Delaware limited
liability company, as recorded with the Register of Deeds
in
Johnson County, Kansas in Book 5054 at Page 271; as further
assigned by
that
certain Assignment And Assumption Of Lease Agreement dated as of
June
9,
2004, by Great Plains Metromall, LLC to GM Mezz, LLC, a Delaware
limited
liability company, and recorded with the Register of Deeds in
Johnson
County, Kansas on June 18, 2004; and as further recorded by that
certain
Assignment and Assumption Of Lease Agreement dated as of June 9,
2004, by
GM
Mezz, LLC to Borrower and recorded with the Register of Deeds in
Johnson
County, Kansas on June 18, 2004 (the "Ground Lease") and the
leasehold
estate created thereby, together with all modifications, extensions
and
renewals of the Ground Lease and all credits, deposits (including,
without
limitation, any deposit of cash or securities or any other property
which
may
be held to secure Mortgagor's performance of its obligations under
the
Ground Lease),
options, privileges and rights of Mortgagor as tenant under
the
Ground Lease, including, but not limited to, (i) the right to cause
fee
title to the premises demised by the Ground Lease to be conveyed
to
Mortgagor as provided in Article 11 of the Ground Lease, as amended
and
(ii)
all the estate, right, title, claim or demand whatsoever of
Mortgagor
either in law or in equity, in possession or expectancy, of, in and
to the
Property or any part thereof, including the fee title to the
property
conveyed or to be conveyed pursuant to the right described in
clause (i) of
this
Section 1.1(k).
(l) All of Mortgagor's rights in and to all Rate Management
Transactions entered into with the Administrative Agent or any of
the
Lenders in connection with the Term Loan Agreement;
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<PAGE>
(m) All books and records pertaining to any and all of the
property
described above, including computer-readable memory and any
computer
hardware or software necessary to access and process such memory
("Books
and
Records"); together with
(n) All proceeds of, additions and accretions to, substitutions
and
replacements for, and changes in any of the property described
above.
Capitalized terms used above and elsewhere in this Mortgage
without
definition have the meanings given them in the Term Loan Agreement
referred to
in Subsection 1.2(a)(iii) below.
1.2
Secured
Obligations.
(a) Mortgagor makes the grant, conveyance, and mortgage set forth
in
Section 1.1 above, and grants the security interest set forth in
Section 3
below for the purpose of securing the following obligations (the
"Secured
Obligations") in any order of priority that Mortgagee may
choose:
(i) Payment of all obligations at any time owing under the
Notes
under the terms of the Term Loan Agreement; and
(ii) Payment and performance of all obligations of Mortgagor
under this Mortgage; and
(iii) Payment and performance of all obligations of Mortgagor
under the Term Loan Agreement; and
(iv) Payment and performance of any obligations of Mortgagor
under any Loan Documents which are executed by Mortgagor; and
(v) Payment and performance of all obligations of Mortgagor
arising from any Rate Management Transactions entered into with
the
Administrative Agent or any of the Lenders in connection with the
Term
Loan Agreement. Rate Management Transactions shall mean an
interest
rate hedging program through the purchase by Mortgagor from the
Administrative Agent or any of the Lenders in connection with
an
interest rate swap, cap or such other interest rate protection
product
with respect to the Term Loan Agreement; and
(vi) Payment and performance of all future advances and other
obligations that Mortgagor or any successor in ownership of all
or
part of the Property may agree to pay and/or perform (whether
as
principal, surety or guarantor) for the benefit of Mortgagee, when
a
writing evidences the parties' agreement that the advance or
obligation be secured by this Mortgage; and
(vii) Payment and performance of all modifications, amendments,
extensions, and renewals, however evidenced, of any of the
Secured
Obligations.
(b) All persons who may have or acquire an interest in all or any
part
of
the Property will be considered to have notice of, and will be
bound by,
the
terms of the Secured Obligations and each other agreement or
instrument
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<PAGE>
made
or entered into in connection with each of the Secured
Obligations.
Such
terms include any provisions in the Note or the Term Loan
Agreement
which permit borrowing, repayment and reborrowing, or which provide
that
the
interest rate on one or more of the Secured Obligations may vary
from
time
to time.
2. Assignment of
Rents.
2.1
Assignment. Mortgagor hereby irrevocably, absolutely, presently
and
unconditionally assigns to Mortgagee all rents, royalties, issues,
profits,
revenue, income, accounts, proceeds and other benefits of the
Property, whether
now due, past due or to become due, including all prepaid rents and
security
deposits (some or all collectively, as the context may require,
"Rents"). This
is an absolute assignment, not an assignment for security only.
2.2
Grant of License. Mortgagee hereby confers upon Mortgagor a
license
("License") to collect and retain the Rents as they become due and
payable, so
long as no Event of Default, as defined in Section 6.2 below, shall
exist and be
continuing. If an Event of Default has occurred and is continuing,
Mortgagee
shall have the right, which it may choose to exercise in its sole
discretion, to
terminate this License without notice to or demand upon Mortgagor,
and without
regard to the adequacy of Mortgagee's security under this
Mortgage.
2.3
Collection and Application of Rents. Subject to the License granted
to
Mortgagor under Section 2.2 above, Mortgagee has the right, power
and authority
to collect any and all Rents. Mortgagor hereby appoints Mortgagee
its
attorney-in-fact to perform any and all of the following acts, if
and at the
times when Mortgagee in its sole discretion may so choose:
(a) Demand, receive and enforce payment of any and all Rents;
or
(b) Give receipts, releases and satisfactions for any and all
Rents;
or
(c) Sue either in the name of Mortgagor or in the name of
Mortgagee
for
any and all Rents.
Mortgagee and Mortgagor agree that the mere recordation of the
assignment
granted herein entitles Mortgagee immediately to collect and
receive rents upon
the occurrence of an Event of Default, as defined in Section 6.2,
without first
taking any acts of enforcement under applicable law, such as, but
not limited
to, providing notice to Mortgagor, filing foreclosure proceedings,
or seeking
and/or obtaining the appointment of a receiver. Further,
Mortgagee's right to
the Rents does not depend on whether or not Mortgagee takes
possession of the
Property as permitted under Subsection 6.3(c). In Mortgagee's sole
discretion,
Mortgagee may choose to collect Rents either with or without taking
possession
of the Property. Mortgagee shall apply all Rents collected by it in
the manner
provided under Section 6.6. If an Event of Default occurs while
Mortgagee is in
possession of all or part of the Property and is collecting and
applying Rents
as permitted under this Mortgage, Mortgagee and any receiver shall
nevertheless
be entitled to exercise and invoke every right and remedy afforded
any of them
under this Mortgage and at law or in equity.
2.4
Mortgagee Not Responsible. Under no circumstances shall Mortgagee
have
any duty to produce Rents from the Property. Regardless of whether
or not
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<PAGE>
Mortgagee, in person or by agent, takes actual possession of the
Premises and
Improvements, unless Mortgagee agrees in writing to the contrary,
Mortgagee is
not and shall not be deemed to be:
(a) A "mortgagee in possession" for any purpose; or
(b) Responsible for performing any of the obligations of the
lessor
under any lease; or
(c) Responsible for any waste committed by lessees or any other
parties, any dangerous or defective condition of the Property, or
any
negligence in the management, upkeep, repair or control of the
Property,
unless caused by the gross negligence, willful misconduct or bad
faith of
Mortgagee; or
(d) Liable in any manner for the Property or the use,
occupancy,
enjoyment or operation of all or any part of it.
2.5
Leasing. Mortgagor shall not accept any deposit or prepayment of
rents
under the leases for any rental period exceeding one (1) month
without
Mortgagee's prior written consent. Mortgagor shall not lease the
Property or any
part of it except strictly in accordance with the Term Loan
Agreement.
3. Grant of
Security Interest.
3.1
Security Agreement. The parties intend for this Mortgage to create
a
lien on the Property, and an absolute assignment of the Rents, all
in favor of
Mortgagee. The parties acknowledge that some of the Property and
some or all of
the Rents may be determined under applicable law to be personal
property or
fixtures. To the extent that any Property or Rents may be or be
determined to be
personal property, Mortgagor as debtor hereby grants Mortgagee as
secured party
a security interest in all such Property and Rents, to secure
payment and
performance of the Secured Obligations. This Mortgage constitutes a
security
agreement under the Uniform Commercial Code of the State in which
the Property
is located, covering all such Property and Rents.
3.2
Financing Statements. Mortgagor hereby authorizes Mortgagee to file
one
or more financing statements. In addition, Mortgagor shall execute
such other
documents as Mortgagee may from time to time require to perfect or
continue the
perfection of Mortgagee's security interest in any Property or
Rents. As
provided in Section 5.10 below, Mortgagor shall pay all fees and
costs that
Mortgagee may incur in filing such documents in public offices and
in obtaining
such record searches as Mortgagee may reasonably require. In case
Mortgagor
fails to execute any financing statements or other documents for
the perfection
or continuation of any security interest, Mortgagor hereby appoints
Mortgagee as
its true and lawful attorney-in-fact to execute any such documents
on its
behalf. If any financing statement or other document is filed in
the records
normally pertaining to personal property, that filing shall never
be construed
as in any way derogating from or impairing this Mortgage or the
rights or
obligations of the parties under it.
4. Fixture
Filing.
This
Mortgage constitutes a financing statement filed as a fixture
filing
under Article 9 of the Uniform Commercial Code in the State in
which the
Property is located, as amended or recodified from time to time,
covering any
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<PAGE>
Property which now is or later may become fixtures attached to the
Premises or
Improvements. For this purpose, the respective addresses of
Mortgagor, as
debtor, and Mortgagee, as secured party, are as set forth in the
preambles of
this Mortgage.
5. Rights and
Duties of the Parties.
5.1
Representations and Warranties. Mortgagor represents and warrants
that:
(a) Mortgagor lawfully possesses and holds fee simple title to all
of
the
Premises and Improvements;
(b) Mortgagor has or will have good title to all Property other
than
the
Premises and Improvements;
(c) Mortgagor has the full and unlimited power, right and authority
to
encumber the Property and assign the Rents;
(d) This Mortgage creates a first and prior lien on the
Property;
(e) The Property includes all property and rights which may be
reasonably necessary or desirable to promote the present and any
reasonable
future beneficial use and enjoyment of the Premises and
Improvements;
(f) Except for certain items of leased office equipment used in
the
management office at the Premises, Mortgagor owns any Property
which is
personal property free and clear of any security agreements,
reservations
of
title or conditional sales contracts, and there is no financing
statement affecting such personal property on file in any public
office;
and
(g) Mortgagor's place of business, or its chief executive office if
it
has
more than one place of business, is located at the address
specified
below.
5.2
Taxes, and Assessments. Mortgagor shall, prior to delinquency, pay
or
cause to be paid each installment of all taxes and special
assessments of every
kind, now or hereafter levied against the Property or any part
thereof, without
notice or demand, and shall provide Mortgagee with evidence of the
payment of
same. Mortgagor shall pay all taxes and assessments which may be
levied upon
Mortgagee's or the Lenders' interest herein or upon this Mortgage
or the debt
secured hereby (excluding any income taxes or similar charges
imposed upon
Mortgagee or the Lenders), without regard to any law that may be
enacted
imposing payment of the whole or any part thereof upon the
Mortgagee or any
Lender. Notwithstanding anything contained in this Section to the
contrary,
Mortgagor shall have the right to pay or cause to be paid any such
tax or
special assessment under protest or to otherwise contest any such
tax or special
assessment but only if (i) such contest has the effect of
preventing the
collection of such tax or special assessment so contested and also
prevent the
sale or forfeiture of the Property or any part thereof or any
interest therein,
(ii) Mortgagor promptly notifies Mortgagee in writing of its intent
to contest
such tax or special assessment, and (iii) if so requested in
writing by
Mortgagee, Mortgagor has deposited security in form and amount
reasonably
satisfactory to Mortgagee, and increases the amount of such
security so
deposited promptly after Mortgagee's request therefor. Mortgagor
shall prosecute
or cause the prosecution of all such contest actions in good faith
and with due
diligence.
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<PAGE>
5.3
Performance of Secured Obligations. Mortgagor shall promptly pay
and
perform each Secured Obligation in accordance with its terms.
5.4
Liens, Charges and Encumbrances. Mortgagor shall immediately
discharge
any lien on the Property which Mortgagee has not consented to in
writing.
5.5
Damages, Restoration, and Insurance Proceeds. As long as no Event
of
Default has occurred and is then continuing, all insurance proceeds
for losses
at the Property of less than $500,000.00 shall be adjusted with and
payable to
the Mortgagor. In case of loss, Mortgagee shall have the right (but
not the
obligation) to participate in and reasonably approve the settlement
of any
insurance claim in excess of $500,000.00 and all claims thereafter,
and
Mortgagee is at all times authorized to collect and receive any
insurance money
for those claims which Mortgagee is entitled to approve the
settlement of
hereunder.
At
the election of Mortgagee, such insurance proceeds may be applied
to
reduce the outstanding balance of the indebtedness under the Term
Loan Agreement
or to pay for costs of repair and restoration of the Property;
provided,
however, that so long as no Event of Default has occurred and is
then
continuing, Mortgagee shall make such insurance proceeds available
to pay for
such costs of repair and restoration. If Mortgagee is entitled to
and does elect
to apply insurance proceeds in payment or reduction of the
indebtedness secured
hereby, then Mortgagee shall reduce the then outstanding balance of
the Advances
by the amount of the insurance proceeds received and so applied by
Mortgagee. In
the event that Mortgagee does not elect to apply the insurance
proceeds to the
indebtedness secured hereby as set forth above, such insurance
proceeds shall be
used to reimburse Mortgagor for the cost of rebuilding or restoring
the
Premises. The Premises shall be so restored or rebuilt as to be
substantially
the same quality and character as the Premises were prior to such
damage or
destruction in accordance with the original plans and
specifications or to such
other condition as Mortgagee shall reasonably approve in
writing.
If
Mortgagee elects to make the proceeds available for repair and
restoration, any request by Mortgagor for a disbursement by
Mortgagee of fire or
casualty insurance proceeds and funds deposited by Mortgagor with
Mortgagee
pursuant to this Section 5.5 shall be treated by Mortgagee as if
such request
were for an Advance under the Term Loan Agreement, and the
disbursement thereof
shall be conditioned upon the Borrower's compliance with and
satisfaction of the
same conditions precedent as would be applicable under the Term
Loan Agreement
for such an Advance. Additionally, such disbursement shall also be
conditioned
upon Borrower's providing to Administrative Agent: updated title
insurance,
satisfactory evidence, as reasonably determined by Administrative
Agent, that
the Premises shall be so restored or rebuilt as to be of at least
equal value
and quality and substantially the same character as the Premises
were prior to
such damage or destruction in accordance with the original plans
and
specifications or to such other condition as Administrative Agent
shall
reasonably approve in writing, satisfactory evidence of the
estimated cost of
completion thereof and with such architect's certificates, waivers
of lien,
contractors' sworn statements and other evidence of cost and of
payments as
Administrative Agent may reasonably require and approve. The
undisbursed balance
of insurance proceeds shall at all times be sufficient to pay for
the cost of
completion of the work free and clear of liens and if such proceeds
are
insufficient, Mortgagor shall deposit the amount of such deficiency
with
Mortgagee prior to the disbursement by Mortgagee of any insurance
proceeds.
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<PAGE>
5.6
Condemnation Proceeds. Mortgagor hereby assigns, transfers and
sets
over unto Mortgagee its entire interest in the proceeds (the
"Condemnation
Proceeds") of any award or any claim for damages for any of the
Property taken
or damaged under the power of eminent domain or by condemnation or
any
transaction in lieu of condemnation ("Condemnation"), unless,
notwithstanding
the forgoing, such taking, damage or condemnation does not cause a
material
diminution in the value of the Premises in which case all
Condemnation Proceeds
for damages to the Property shall be payable to the Mortgagor.
Mortgagee shall
make available to Mortgagor the Condemnation Proceeds for the
restoration of the
Premises if Mortgagor satisfies all of the conditions set forth in
this Section
5.6 hereof for disbursement of insurance proceeds. In all other
cases Mortgagee
shall have the right, at its option, to apply the Condemnation
Proceeds upon or
in reduction of the indebtedness secured hereby, whether due or
not. If
Mortgagee is entitled to and does elect to apply Condemnation
Proceeds upon or
in reduction of the indebtedness secured hereby, then Mortgagee
shall reduce the
then outstanding balance of the Advances under the Term Loan
Agreement by the
amount of the Condemnation Proceeds received and so applied by
Mortgagee. If the
Condemnation Proceeds are required to be used as aforesaid to
reimburse
Mortgagor for the cost of rebuilding or restoring buildings or
improvements on
the Property, or if Mortgagee elects that the Condemnation Proceeds
be so used,
and the buildings and other improvements shall be rebuilt or
restored, the
Condemnation Proceeds shall be paid out in the same manner as is
provided in
this Section 5.6 hereof for the payment of insurance proceeds
toward the cost of
rebuilding or restoration of such buildings and other improvements.
Any surplus
which may remain out of the Condemnation Proceeds after payment of
such cost of
rebuilding or restoration shall, at the option of Mortgagee, be
applied on
account of the indebtedness secured hereby or be paid to any other
party
entitled thereto.
5.7
Maintenance and Preservation of Property.
(a) Mortgagor shall insure the Property as required by Schedule 7
of
the
Term Loan Agreement and keep the Property in good condition and
repair.
(b) Except as required by the terms of any lease approved by
Administrative Agent, Mortgagor shall not remove or demolish the
Property
or
any material part of it in any way, or materially alter, restore or
add
to
the Property, or initiate or allow any material change or variance
in
any
zoning or other Premises use classification which adversely affects
the
Property or any material part of it, except with Mortgagee's
express prior
written consent in each instance; the term "materially" or
"material" as
used
in this Section 5.7(b) shall mean having a monetary effect in
an
amount greater than $5,000,000.
(c) Mortgagor shall not commit or allow any act upon or use of
the
Property which would violate: (i) any applicable Laws or order of
any
Governmental Authority, whether now existing or later to be enacted
and
whether foreseen or unforeseen; or (ii) any public or private
covenant,
condition, restriction or equitable servitude affecting the
Property.
Mortgagor shall not bring or keep any article on the Property or
cause or
allow any condition to exist on it, if that could invalidate or
would be
prohibited by any insurance coverage required to be maintained by
Mortgagor
on
the Property or any part of it under the Term Loan Agreement.
(d) Mortgagor shall not commit or allow waste of the Property,
including those acts or omissions characterized under the Term
Loan
Agreement as waste which arises out of Materials of Environmental
Concern.
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<PAGE>
(e) Mortgagor shall perform all other acts which from the character
or
use
of the Property may be reasonably necessary to maintain and
preserve
its
value.
5.8
Releases, Extensions, Modifications and Additional Security. From
time
to time, Mortgagee may perform any of the following acts without
incurring any
liability or giving notice to any person:
(a)
Release any person liable for payment of any Secured
Obligation;
(b) Extend the time for payment, or otherwise alter the terms
of
payment, of any Secured Obligation;
(c) Accept additional real or personal prop
