AMENDED AND RESTATED MORTGAGE ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING

 

                                                                  EXHIBIT 10.117

 

                          AMENDED AND RESTATED MORTGAGE

                   ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND

                                 FIXTURE FILING

 

                                      MADE BY

 

 

                 MONTGOMERY MALL ASSOCIATES LIMITED PARTNERSHIP

 

                                  as Mortgagor

 

                                       to

 

                          KEYBANK NATIONAL ASSOCIATION

 

                                   as Mortgagee

 

 

     This Mortgage amends and restates in its entirety that certain Mortgage and

Security Agreement dated as of July 15, 1998 made by Mortgagor in favor of

Lehman Brothers Holdings Inc., d/b/a Lehman Capital, A Division of Lehman

Brothers Holdings Inc. ("Original Mortgagee") and recorded August 3, 1998 in

Real Property Book 1889 at Page 560 in the Office of the Judge of Probate of

Montgomery County, Alabama in the amount of $47,600,000 and that certain

Assignment of Rents and Leases of even date therewith made by Mortgagor in favor

of the Original Mortgagee and recorded August 3, 1998 in Real Property Book 1889

at Page 595 in the Office of the Judge of Probate of Montgomery County, Alabama,

as such Mortgage and Security Agreement and Assignment of Rents and Leases have

been previously assigned to LaSalle National Bank, as trustee for the registered

holders of LB Commercial Mortgage Trust, Commercial Mortgage Pass-Through

Certificates, Series 1998-C4 ("Prior Assignee") and have been further assigned

to Mortgagee by Prior Assignee pursuant to that certain Assignment of Mortgage

and Security Agreement and that certain Assignment of Assignment of Leases and

Rents, each of even date herewith.

 

     A Mortgage tax has been paid in full on the Mortgage with respect to said

$47,500,000 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: August 1, 2005

 

                   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

                                "Montgomery Mall"

 

 

     THIS AMENDED AND RESTATED MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT

AND FIXTURE FILING (this "Mortgage") is made as of August 1, 2005, by Montgomery

Mall Associates Limited Partnership, a Delaware limited partnership

("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 July

31, 2005 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 August 1, 2028. The maximum aggregate principal amount of

the Loans evidenced by the Notes shall be $44,000,000. 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 hereby irrevocably and

unconditionally grants, bargains, sells, conveys, mortgages and warrants to

Mortgagee, with power of sale and with right of entry and possession, 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 Montgomery, State of

     Alabama, 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

     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

 

 

                                      -2-

<PAGE>

 

     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 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;

 

          (l) 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

 

          (m) 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

 

 

                                      -3-

<PAGE>

 

          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

     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

 

 

                                      -4-

<PAGE>

 

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

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,

 

 

                                      -5-

<PAGE>

 

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

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

 

 

                                      -6-

<PAGE>

 

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.

 

     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.

 

 

                                      -7-

<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.

 

          (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.

 

 

                                      -8-

<PAGE>

 

     5.8 Releases, Extensions, Modifications and Additional Security. From time

to time, Mortgagee may perform any of the following acts w