EXHIBIT 10.132
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Sidley Austin LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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ASSIGNMENT OF LEASES AND RENTS
dated as of
June 3, 2008
from
▇▇▇▇▇▇ HILLS MALL, LLC
a Delaware limited liability company
to
EUROHYPO AG, NEW YORK BRANCH,
as Administrative Agent for the Lenders (as hereinafter defined)
Location of Project:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
County: Los Angeles
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ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made as of the
3rd day of June, 2008 by ▇▇▇▇▇▇ HILLS MALL, LLC, a limited liability company
duly organized and validly existing under the laws of the State of Delaware and
having an office at c/o Glimcher Realty Trust, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Borrower"), in favor of EUROHYPO AG, NEW YORK BRANCH,
having an office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as
Administrative Agent for the lenders referred to below (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, Grantor is the fee owner of that certain tract of land located in
the County of Los Angeles, State of California, and being more fully described
in Exhibit A-1 attached hereto (the "Fee-Owned Land").
WHEREAS, Grantor is the tenant under that certain GROUND LEASE dated
September 23, 1969, by and between ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually, and as
attorney in fact for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, trustee for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, trustee for J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇; and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, trustee for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ (collectively "Original Lessor") and ▇▇▇▇▇▇ ▇. ▇▇▇▇, Inc., a
California corporation as lessee ("Original Lessee"), for the ground lease of
the Ground Lease Property; as amended by: ADDENDUM NO. 1 TO GROUND LEASE DATED
SEPTEMBER 23, 1969 dated December 22, 1972, between Original Lessor and
▇▇▇▇-▇▇▇▇▇▇ Associates, a limited partnership in which ▇▇▇▇▇▇ ▇. ▇▇▇▇, Inc. is
the general partner, ▇▇▇▇▇▇▇▇-▇▇▇▇ Stores, Inc., a California corporation,
Sears, ▇▇▇▇▇▇▇ and Co., a New York corporation, ▇. ▇. ▇▇▇▇▇ Properties, Inc., a
Delaware corporation, and Adcor Realty Corporation, a New York corporation;
CONSTRUCTION, OPERATION, AND RECIPROCAL EASEMENT AGREEMENT dated December 22,
1972, by and between ▇▇▇▇-▇▇▇▇▇▇ Associates, ▇▇▇▇▇▇▇▇-▇▇▇▇ Stores, Inc., Sears,
▇▇▇▇▇▇▇ and Co., ▇. ▇. ▇▇▇▇▇ Properties, Inc., and Adcor Realty Corporation;
SUBORDINATION AGREEMENT dated December 22, 1972, by Original Lessor; DEED AND
ASSIGNMENT dated December 20, 1991, between RT-H Corporation of California, a
California corporation, as grantor/assignor, and ▇▇▇▇-▇▇▇▇▇▇ Associates, as
grantee/assignee; GROUND LEASE ASSIGNMENT dated August 5, 1996, by and between
▇▇▇▇-▇▇▇▇▇▇ Associates, as assignor, and Kent Properties, Inc., a California
corporation, as assignee; GROUND LEASE ASSIGNMENT dated October 21, 1996, by and
between Kent Properties, Inc., as assignor, and ▇▇▇▇▇▇ Capistrano Partners, a
California general partnership, as assignee; GROUND LEASE ASSIGNMENT dated
October 21, 1996, by and between ▇▇▇▇▇▇ Capistrano Partners, as assignor, and
▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC, a California limited liability company, as assignee
(collectively with all amendments thereto, the "Ground Lease") affecting the
land located in the County of Los Angeles, State of California, and being more
fully described in Exhibit A-2 attached hereto (the "Leasehold Land"; the
Fee-Owned Land and the Leasehold Land are referred to collectively herein as the
"Land").
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WHEREAS, Borrower, certain lenders (collectively, the "Lenders") and the
Administrative Agent are parties to a Loan Agreement dated as of even date
herewith (said Loan Agreement, as modified and supplemented and in effect from
time to time, being herein called the "Loan Agreement"; and except as otherwise
herein expressly provided, all terms defined in the Loan Agreement are being
used herein as defined therein), which Loan Agreement provides, among other
things, for Loans to be made by the Lenders to Borrower in an aggregate
principal amount not exceeding $90,000,000.00 to be evidenced by, and repayable
with interest thereon in accordance with, various Notes to be executed and
delivered to the respective order of the Lenders (collectively, as such notes
may be consolidated, severed, modified, amended, restated or extended, the
"Notes") and are secured by, among other things, that certain Mortgage delivered
by Borrower; and
WHEREAS, it is a condition to the obligation of the Lenders to extend
credit to Borrower pursuant to the Loan Agreement that Borrower execute and
deliver this Assignment as the Assignment of Leases and Rents under the Loan
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated into the operative provisions of this Assignment by this reference,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby conclusively acknowledged, Borrower and the Administrative Agent, for
the benefit of the Lenders, agree as follows:
Section 1. Absolute Assignment.
(a) Borrower unconditionally and absolutely assigns to the Administrative
Agent, for the benefit of the Lenders, all of Borrower's right, title and
interest in and to the following whether now or hereafter in effect:
(i) Leases. All leasehold estates, leases, ground leases, subleases,
licenses, concessionaire agreements, bailments or other agreements
affecting the use, enjoyment or occupancy of the Project or any
portion thereof now or hereafter existing or entered into (including
any use or occupancy arrangements created pursuant to Section 365(d)
of Title 11 of the United States Code (the "Bankruptcy Code") or
otherwise in connection with the commencement or continuance of any
bankruptcy, reorganization, arrangement, insolvency, dissolution,
receivership or similar proceedings, or any assignment for the benefit
of creditors) in respect of any tenant or occupant of any portion of
the Project (each, a "Tenant"), together with all guaranties thereof
and all extensions, amendments and modifications thereto heretofore or
hereafter entered into, and all right, title and interest of Borrower
thereunder (collectively, the "Leases"); and
(ii) Rents. All rents, issues, profits, royalties, use and occupancy
charges (including all oil and gas or other mineral royalties and
bonuses), income and other benefits now or hereafter derived from any
portion of the Project or the use or occupancy thereof (including any
payments received pursuant to Section 502(b) of the Bankruptcy Code or
otherwise in connection with the commencement or continuance of any
bankruptcy, reorganization, arrangement, insolvency, dissolution,
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receivership or similar proceedings, or any assignment for the benefit
of creditors, in respect of any Tenant of any portion of the Project
and all claims as a creditor in connection with any of the foregoing)
and all cash, security deposits, letters of credit, advance rentals,
all deposits or payments of a similar nature relating thereto and all
other documents or instruments evidencing the Rent whether now or
hereafter in effect (collectively, the "Rents").
(b) This Assignment constitutes an absolute and present assignment and not
an assignment for additional security only.
Section 2. Rights of the Administrative Agent.
(a) The execution of this Assignment constitutes and evidences the
irrevocable consent of Borrower to the entry upon and taking possession of the
Project by the Administrative Agent and the exercise by the Administrative Agent
of the rights and powers granted pursuant hereto, including, without limitation,
those set forth in clauses (i) through (viii) below, regardless of whether
foreclosure has been instituted pursuant to the Assignment and without applying
for a receiver. Such assignment shall include, without limitation:
(i) the immediate and continuing right to receive and collect all amounts
payable by all Tenants, including, without limitation, (A) all Rents,
(B) all damages or other amounts payable in the event of any
expiration or termination of any Lease pursuant to the terms thereof,
by operation of law or otherwise, (C) any indemnification against, or
reimbursement for, sums paid and costs and expenses incurred by
Borrower under any Lease or otherwise, (D) any award in the event of
the bankruptcy of any Tenant or guarantor of a Lease, and (E) all
security deposits, other security instruments, other deposits or
prepayments with respect to any such Leases;
(ii) all claims, rights, powers, privileges and remedies of Borrower,
whether provided for in any Lease or arising by statute or at law or
in equity or otherwise, consequent on any failure on the part of any
Tenant to perform or comply with any term of any Lease;
(iii) all right to take all action upon the happening of a default under
any Lease as shall be permitted by any Lease or by law, including,
without limitation, the commencement, conduct and consummation of
proceedings at law or in equity;
(iv) the full power and authority, in the name of Borrower, or otherwise,
to enforce, collect, receive and make receipt for any and all of the
foregoing and to do any and all other acts and things whatsoever which
Borrower, or any landlord is or may be entitled to do under any Lease;
(v) the full power and authority, in the name of Borrower, or otherwise,
to enforce any Lease, including the right to settle, compromise,
release, extend the time of payment of, and make allowances,
adjustments and discounts of any Rents or other obligations under the
Leases;
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(vi) the full power and authority, in the name of Borrower, or otherwise,
to notify any Person that the Leases have been assigned to the
Administrative Agent and that all Rents are to be paid directly to the
Administrative Agent, whether or not the Administrative Agent has
commenced or completed foreclosure or taken possession of the Project;
(vii) the full power and authority, in the name of Borrower, or otherwise,
to lease the Project; and
(viii) the right to apply the Rents to the payment of the Obligations (as
such term is defined in the Mortgage) in accordance with the Loan
Agreement.
(b) During the term hereof, all rights, powers and privileges of the
Administrative Agent herein set forth are coupled with an interest and are
irrevocable, subject to the terms and conditions hereof, and Borrower will not
take any action under any Lease or otherwise which is inconsistent with this
Assignment or any of the terms hereof or thereof and any such action
inconsistent herewith or therewith shall, to the fullest extent permitted by
Applicable Law, be void. Any further assignment of any rents, issues, or profits
from the Project shall to the fullest extent permitted by law be void.
(c) Borrower shall have all the right to enter into new leases or modify
existing leases as provided in the Loan Agreement. Borrower hereby agrees that
it will not, unilaterally or by agreement, (i) except as otherwise expressly
permitted in the Loan Agreement, subordinate, amend, modify, extend, discharge,
terminate, surrender, waive or otherwise change any term of any Lease in any
manner which would violate this Assignment, the Loan Agreement or the other Loan
Documents or (ii) except for security deposits, accept a prepayment of Rent in
excess of Rent for one month. If any Lease shall be amended as permitted hereby,
such Lease shall continue to be subject to the provisions hereof without the
necessity of any further act by any of the parties hereto, subject to the
provisions of any non-disturbance agreement which the Administrative Agent may
have granted in accordance with the provisions of this Assignment.
Section 3. No Obligation.
(a) Nothing contained in the foregoing sentence shall be construed to bind
the Administrative Agent or any Lender to the performance of any of the
covenants, conditions or provisions contained in any such Lease or other
document or otherwise to impose any obligation on the Administrative Agent or
any Lender (including any liability under the covenant of quiet enjoyment
contained in any Lease), except that the Administrative Agent shall be
accountable for any money or security actually received pursuant to such
assignment.
(b) None of the enforcement of any of the remedies under this Assignment or
any other remedies afforded to the Administrative Agent and/or the Lenders under
the Loan Documents, at law or in equity shall cause the Administrative Agent or
any Lender to be deemed or construed to be a mortgagee-in-possession of the
Project, to obligate the Administrative Agent or any Lender to lease the Project
or attempt to do so, or to take any action, incur any expense, or perform or
discharge any obligation, duty or liability whatsoever under any of the Leases
or otherwise.
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(c) Notwithstanding anything to the contrary contained in this Assignment,
the Administrative Agent shall not be obligated to perform or discharge any
obligation, duty or liability under the Leases or by reason of this Assignment
and Borrower shall, and hereby agrees at its sole cost and expense to protect,
defend, indemnify and hold the Administrative Agent harmless for, from and
against, and shall be responsible for, any and all liability, loss or damage
which may or might be incurred under the Leases or under or by reason of this
Assignment and from any and all claims and demands whatsoever, including the
defense of any such claims or demands which may be asserted against the
Administrative Agent by reason of any alleged obligations and undertakings on
its part to perform or discharge any of the terms, covenants or agreements
contained in the Leases, except to the extent such liability, loss, damage or
claim has resulted solely from Administrative Agent's or any Lender's gross
negligence or willful misconduct, in which case the party to whom the gross
negligence or willful misconduct is attributable (but not any other party) shall
not be entitled to the indemnification provided for hereunder to the extent of
such gross negligence or willful misconduct.
Section 4. Grant of License; Revocation. Until the occurrence of an Event
of Default, the Administrative Agent waives its rights under Sections 1 and 2,
and grants Borrower a license to collect the Rents. Such license to collect and
receive the Rents shall be automatically revoked and the rights of Borrower
thereunder shall automatically cease and terminate upon the occurrence and
during the continuance of an Event of Default. In such event, (i) Borrower
hereby authorizes the Administrative Agent to receive and collect the Rents due
under the terms of each Lease and to direct any Tenant, by written notice from
the Administrative Agent or otherwise, to forward such Rents by mail or in
person to the Administrative Agent and (ii) Borrower shall immediately pay to
the Administrative Agent any Rents held by or under the control of Borrower.
Borrower hereby irrevocably appoints and constitutes the Administrative Agent as
Borrower's lawful attorney-in-fact, coupled with an interest and with full power
of substitution, for the purpose of taking, during the continuance of an Event
of Default, any of the actions described in the immediately preceding sentence
and all acts incidental thereto. Following the revocation of the license herein
granted, the Administrative Agent may retain and apply the Rents toward payment
of the Obligations and/or Operating Expenses in such order, priority and
proportions as the Administrative Agent, in its discretion, shall deem proper,
or to the operation, maintenance and repair of the Project, and irrespective of
whether the Administrative Agent shall have commenced a foreclosure of this
Assignment or shall have applied or arranged for the appointment of a receiver
with respect thereto.
Section 5. Direction to Tenants. Borrower hereby irrevocably authorizes and
directs each Tenant of the Project, upon receipt of notice from the
Administrative Agent of an Event of Default, to pay all Rents due or to become
due under its Lease directly to the Administrative Agent or to any appointed
receiver of the Project. Each such Tenant shall have the right to rely upon any
such notice of the Administrative Agent directing the payment of all Rents to
the Administrative Agent, without any obligation to inquire as to the actual
existence of the Event of Default, notwithstanding any claim of Borrower to the
contrary and Borrower shall have no rights or claims against any Tenant for any
Rents so paid to the Administrative Agent. Borrower shall facilitate, in all
commercially reasonable ways, the collection of the Rents by the Administrative
Agent and will, upon request by the Administrative Agent, execute a written
notice to each Tenant directing the Tenant to pay the Rents payable under such
Tenant's respective Lease to the Administrative Agent. Each Tenant is hereby
expressly authorized and directed, upon demand by the Administrative Agent and
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without the necessity of any further consent by, or notice from, Borrower, to
attorn to the Administrative Agent as the owner of the Leases and to pay any and
all Rents due to Borrower pursuant to such Tenant's Lease directly to the
Administrative Agent or to any appointed receiver, and to observe and perform
such Tenant's obligations under the Tenant's Lease to or for the Administrative
Agent and to accept performance of the landlord's obligations under the Lease
from the Administrative Agent. Each Tenant is hereby expressly relieved of any
and all duty, liability or obligation to Borrower in respect of all payments so
made. The payment of Rents to the Administrative Agent pursuant to the
Administrative Agent's demand and the performance of obligations under any Lease
to or for the benefit of the Administrative Agent shall not cause the
Administrative Agent to assume or be bound by any of the provisions of any such
Lease and shall not relieve Borrower of its obligations thereunder.
Section 6. Remedies Cumulative.
(a) No right or remedy herein conferred upon or reserved to the
Administrative Agent is intended to be exclusive of any other right or remedy,
and each and every right and remedy shall be cumulative and in addition to any
other right or remedy under this Assignment and the other Loan Documents, or
under Applicable Law, whether now or hereafter existing; the failure of the
Administrative Agent to insist at any time upon the strict observance or
performance of any of the provisions of this Assignment or to exercise any right
or remedy provided for herein or under Applicable Law, shall not impair any such
right or remedy nor be construed as a waiver or relinquishment thereof.
(b) The Administrative Agent shall be entitled to enforce payment and
performance of any of the Obligations and to exercise all rights and powers
under this Assignment or under any Loan Document or any laws now or hereafter in
force, notwithstanding that some or all of the Obligations may now or hereafter
be otherwise secured, whether by mortgage, deed of trust, pledge, lien,
assignment or otherwise; neither the acceptance of this Assignment nor its
enforcement shall prejudice or in any manner affect the Administrative Agent's
right to realize upon or enforce any other security now or hereafter held by the
Administrative Agent, it being stipulated that the Administrative Agent shall be
entitled to enforce this Assignment, any of the Security Documents and any other
security now or hereafter held by the Administrative Agent in such order and
manner as the Administrative Agent, in its sole discretion, may determine; every
power or remedy given by the Loan Agreement, this Assignment or any of the other
Loan Documents to the Administrative Agent, or to which the Administrative Agent
is otherwise entitled, may be exercised, concurrently or independently, from
time to time and as often as may be deemed expedient by the Administrative
Agent, and the Administrative Agent may pursue inconsistent remedies.
Section 7. No Impairment; No Release. The interests and rights of Borrower
under this Assignment shall not be impaired by any indulgence, including (i) any
renewal, extension or modification which the Administrative Agent and/or the
Lenders may grant with respect to any of the Obligations; (ii) any surrender,
compromise, release, renewal, extension, exchange or substitution which the
Administrative Agent and/or the Lenders may grant with respect to the Project or
any portion thereof; or (iii) any waiver, release or indulgence granted to any
maker, endorser, guarantor or surety of any of the Obligations.
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Section 8. Further Assurances. Borrower will, at the cost of Borrower, and
without expense to the Administrative Agent or any Lender, execute, acknowledge
and deliver all and every such further acts, conveyances, assignments, notices
of assignments, transfers and assurances as the Administrative Agent shall, from
time to time, reasonably require for the better assuring, conveying, assigning,
transferring and confirming unto the Administrative Agent the property and
rights hereby assigned or intended now or hereafter so to be, or which Borrower
may be or may hereafter become bound to convey or assign to the Administrative
Agent, or for carrying out the intention or facilitating the performance of the
terms of this Assignment or for filing, registering or recording this Assignment
and, on demand, will execute and deliver and hereby authorizes the
Administrative Agent to execute in the name of Borrower to the extent the
Administrative Agent may lawfully do so, one or more financing statements,
chattel mortgages or comparable security instruments, to evidence more
effectively the lien and security interest hereof in and upon the Leases.
Section 9. Miscellaneous.
(a) Release by the Administrative Agent. A full and complete release and
reconveyance of the Deed of Trust shall operate as a full and complete release
of all Administrative Agent's rights hereunder. Upon the request of Borrower
upon the termination of the Commitments under and as defined in the Loan
Agreement and the payment in full of the Obligations, the Administrative Agent,
at Borrower's cost and expense, shall terminate this Assignment by an instrument
duly acknowledged in form for recording.
(b) Notices. All notices, requests, demands, statements, authorizations,
approvals, directions, consents and other communications provided for herein
shall be given or made in writing and shall be deemed sufficiently given or
served for all purposes as of the date (i) when hand delivered (provided that
delivery shall be evidenced by a receipt executed by or on behalf of the
addressee), (ii) three (3) days after being sent by postage pre-paid registered
or certified mail, return receipt requested, (iii) one (1) Business Day after
being sent by reputable overnight courier service (with delivery evidenced by
written receipt), or (iv) with a simultaneous delivery by one of the means in
(i), (ii) or (iii) by facsimile, when sent, with confirmation and a copy sent by
first class mail, in each case addressed to the intended recipient at the
"Address for Notices" specified below; or, as to any party, at such other
address as shall be designated by such party in a notice to each other party.
Unless otherwise expressly provided herein, Borrower shall only be required to
send notices, requests, demands, statements, authorizations, approvals,
directions, consents and other communications to the Administrative Agent on
behalf of all of the Lenders.
Notices and other communications to the Administrative Agent hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent. The Administrative Agent or Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices
or communications.
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Address for Notices:
If to Borrower:
▇▇▇▇▇▇ Hills Mall, LLC
c/o Glimcher Realty Trust
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Administrative Agent:
Eurohypo AG, New York Branch
1114 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Director
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
Eurohypo AG, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Head of Portfolio Operations
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
- and -
Sidley Austin LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
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(c) No Waiver. Any failure by the Administrative Agent to insist upon
strict performance of any of the terms, provisions or conditions of this
Assignment or the other Loan Documents shall not be deemed to be a waiver of
same, and the Administrative Agent shall have the right at any time to insist
upon strict performance of all of such terms, provisions and conditions.
(d) Amendments; etc. This Assignment cannot be modified, changed or
discharged except by an agreement in writing, duly acknowledged in form for
recording, signed by Borrower and the Administrative Agent and, to the extent
provided in the Loan Agreement, the consent of the Lenders. For purposes hereof,
a statement by the Administrative Agent in any modification or supplement to
this Assignment to the effect that such modification or supplement has been
consented to by the Lenders as provided in the Loan Agreement shall be
conclusive evidence of such consent and it shall not be necessary for a copy of
such consent to be recorded with such modification or supplement as a condition
to such modification or supplement being recorded in the appropriate real estate
records.
(e) Successors and Assigns. This Assignment applies to, inures to the
benefit of and binds Borrower and the Administrative Agent and their respective
successors and assigns, as permitted under the Loan Agreement, and shall run
with the Project.
(f) Captions. The captions or headings at the beginning of each Article and
Section hereof are for the convenience of reference and are not a part of this
Assignment.
(g) Severability. If any term or provision of this Assignment or the
application thereof to any person or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Assignment, or the application of such
term or provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Assignment shall be valid and enforceable to the maximum
extent permitted by law. If any portion of the Obligations shall for any reason
not be secured by a valid and enforceable lien upon any part of the Project,
then any payments made in respect of the Obligations (whether voluntary or under
foreclosure or other enforcement action or procedure or otherwise) shall, for
purposes of this Assignment (except to the extent otherwise required by
Applicable Law) be deemed to be made (i) first, in respect of the portion of the
Obligations not secured by the lien of this Assignment, (ii) second, in respect
of the portion of the Obligations secured by the lien of this Assignment, but
which lien is on less than all of the Project, and (iii) last, to the portion of
the Obligations secured by the lien of this Assignment, and which lien is on all
of the Project.
(h) CERTAIN WAIVERS. BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, IN CONNECTION WITH ANY FORECLOSURE OR OTHER ACTION BROUGHT BY THE
ADMINISTRATIVE AGENT TO ENFORCE ITS RIGHTS AND REMEDIES UNDER THIS ASSIGNMENT,
ANY AND EVERY RIGHT BORROWER MAY HAVE TO (A) INTERPOSE ANY COUNTERCLAIM THEREIN,
OTHER THAN A COMPULSORY COUNTERCLAIM, AND (B) HAVE THE SAME CONSOLIDATED WITH
ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE
IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM
INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST THE ADMINISTRATIVE AGENT OR
THE LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.
10
(i) GOVERNING LAW.
(i) THIS ASSIGNMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY
THE ADMINISTRATIVE AGENT AND LENDERS AND ACCEPTED BY BORROWER IN THE
STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL
RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED
HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS ASSIGNMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
SUCH STATE AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA,
EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION,
AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED PURSUANT
HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY
AND CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE PROJECT
IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED
BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL
GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN
DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER.
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY UNCONDITIONALLY AND
IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER
JURISDICTION GOVERNS THIS ASSIGNMENT, AND THIS ASSIGNMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
(ii) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE ADMINISTRATIVE AGENT,
ANY LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS ASSIGNMENT
MAY AT THE ADMINISTRATIVE AGENT'S OPTION BE INSTITUTED IN ANY FEDERAL
OR STATE COURT IN ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, PURSUANT
TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER
WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON
VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT,
11
ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING.
BORROWER DOES HEREBY DESIGNATE AND APPOINT CORPORATION SERVICE
COMPANY, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON
ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY
SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW
YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT
SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO
BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER, IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (A) SHALL GIVE
PROMPT NOTICE TO THE ADMINISTRATIVE AGENT OF ANY CHANGED ADDRESS OF
ITS AUTHORIZED AGENT HEREUNDER, (B) MAY AT ANY TIME AND FROM TIME TO
TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW
YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED
AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (C) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO
HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A
SUCCESSOR.
Nothing in this Section 9(i) shall affect the right of the Administrative Agent
or any Lender to serve legal process in any other manner permitted by law or
affect the right of the Administrative Agent or any Lender to bring any suit,
action or proceeding against Borrower or the property of Borrower in the courts
of any other jurisdiction.
(j) WAIVER OF JURY TRIAL. BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS ASSIGNMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF EITHER PARTY OR ANY
EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER THIS ASSIGNMENT OR IN ANY
WAY RELATING TO THE LOANS OR THE PROJECT (INCLUDING, WITHOUT LIMITATION, ANY
ACTION TO RESCIND OR CANCEL THIS ASSIGNMENT, AND ANY CLAIM OR DEFENSE ASSERTING
THAT THIS ASSIGNMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE).
THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND EACH
LENDER TO ENTER THIS ASSIGNMENT.
12
(k) Limitation of Liability. The provisions of Section 12.27 of the Loan
Agreement shall apply to the terms of this Assignment.
[Signature Page Follows]
13
IN WITNESS WHEREOF, this Assignment has been duly executed by Borrower as
of the day and year first above written.
BORROWER:
▇▇▇▇▇▇ HILLS MALL, LLC,
a Delaware limited liability company
By: ▇▇▇▇▇▇ HILLS MALL REIT, LLC,
a Delaware limited liability company,
its sole member
By: OG RETAIL HOLDING CO., LLC,
a Delaware limited liability company,
its managing member
By: GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership,
its administering member
By: GLIMCHER PROPERTIES CORPORATION,
a Delaware corporation,
its sole general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title Executive Vice President & Chief
Financial Officer
-----------------------------------
STATE OF OHIO )
) ss.:
COUNTY OF FRANKLIN )
On the 3rd day of June, 2008, before Notary Public, the undersigned,
personally appeared ▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President and Chief Financial
Officer, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument,
and acknowledged to me that he executed the same in his capacity and that by his
signature on the instrument the individual or the person upon behalf of which
the individual acted executed the instrument.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------
Signature and Office of individual
taking acknowledgement
EXHIBIT A-1
LEGAL DESCRIPTION OF FEE-OWNED LAND
-----------------------------------
All that certain real property situated in the County of Los Angeles, State of
California, described as follows:
PARCEL A - Fee Simple:
Parcels 5, 7 and 8, in the City of Industry, County of Los Angeles, State of
California, as shown on Parcel Map No. 322, filed in Book 315, Page(s) 37
through 44, inclusive, of Parcel Maps, in the Office of the County Recorder of
said County.
PARCEL C - Easements:
Non-exclusive easements, creating rights in real property, including but not
limited to, ingress and egress, passage and parking of vehicles; passage and
accommodation of pedestrians; sewer lines, water and gas mains, electrical power
lines, telephone lines, and other utility lines; development and construction of
said Tract; the construction, reconstruction, erection, removal and maintenance,
on, to, over, under and across to a maximum distance of 14 feet, of footings,
supports, canopies, flag poles, roof and building overhangs, awnings, alarm
bells, signs, lights and lighting devices and similar appurtenances over the
"Common Area" as defined and described in that certain Construction, Operation
and Reciprocal Easement Agreement in and upon all the terms, covenants,
conditions, provisions, reservations, limitations, duties, obligations, liens,
assessments and easements as more particularly and fully described and set forth
in said agreement by and between ▇▇▇▇-▇▇▇▇▇▇ Associates, a limited partnership
in which ▇▇▇▇▇▇ ▇. ▇▇▇▇, Inc., a California corporation, is the general partner;
▇▇▇▇▇▇▇▇-▇▇▇▇ Store, Inc., a California corporation; Sears, ▇▇▇▇▇▇▇ and Co., a
New York corporation; Adcor Realty Corporation, a New York corporation; and ▇.▇.
▇▇▇▇▇▇ Properties, Inc., a Delaware corporation, dated December 22, 1972 and
recorded December 22, 1972 as Instrument No. 712, as amended by that certain
First Amendment to Construction, Operation and Reciprocal Easement Agreement by
and between ▇▇▇▇-▇▇▇▇▇▇ Associates, a limited partnership in which ▇▇▇▇▇▇ ▇.
▇▇▇▇, Inc., a California corporation, is the general partner; ▇▇▇▇▇▇▇▇-▇▇▇▇
Store, Inc., a California corporation; Sears, ▇▇▇▇▇▇▇ and Co., a New York
corporation; Adcor Realty Corporation, a New York corporation; and ▇.▇. Penney
Properties, Inc., a Delaware corporation, dated February 1, 1974 and recorded
March 11, 1974 as Instrument No. 3991, as amended by that certain Second
Amendment to Construction, Operation and Reciprocal Easement Agreement by and
between ▇▇▇▇-▇▇▇▇▇▇ Associates, a Limited Partnership in which ▇▇▇▇▇▇ ▇. ▇▇▇▇,
Inc., a California corporation, is the general partner; ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Stores, Inc., a California corporation (fka ▇▇▇▇▇▇▇▇-▇▇▇▇ Stores, Inc.); Sears,
▇▇▇▇▇▇▇ and Co., a New York corporation; Adcor Realty Corporation, a New York
corporation; and ▇.▇. Penney Properties, Inc., a Delaware corporation, dated
September 20, 1984 and recorded October 1, 1984 as Instrument No. ▇▇-▇▇▇▇▇▇▇,
and as further amended by that certain Third Amendment to Construction,
Operation and Reciprocal Easement Agreement by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC, a
California limited liability company; The May Department Stores Company, a New
York corporation; and Sears, ▇▇▇▇▇▇▇ and Co., a New York corporation, dated
December 1, 2001 and recorded January 8, 2002 as Instrument No. ▇▇-▇▇▇▇▇▇▇, all
in the Recorder's Office of Los Angeles County, California.
PARCEL D Easements:
Non-exclusive easements, creating rights in real property as contained in that
certain Declaration of Covenants, Conditions and Restrictions by ▇▇▇▇▇▇ Hills
Mall, LLC, a Delaware limited liability company, dated March 24, 2003 and
recorded March 26, 2003 as Instrument No. 03-838916, in the Recorder's Office of
Los Angeles County, California.
Assessor's Parcel Number: ▇▇▇▇-▇▇▇-▇▇▇ / ▇▇▇▇-▇▇▇-▇▇▇ / ▇▇▇▇-▇▇▇-▇▇▇
EXHIBIT A-2
LEGAL DESCRIPTION OF LEASEHOLD LAND
-----------------------------------
All that certain real property situated in the County of Los Angeles, State of
California, described as follows:
PARCEL B - Leasehold:
Parcels 5 and 6, in the City of Industry, County of Los Angeles, State of
California, as shown on Parcel Map No. 27-A, filed in Book 42, Page(s) 61
through 64, inclusive of Parcels Maps, in the Office of the County Recorder of
said County.
PARCEL C - Easements:
Non-exclusive easements, creating rights in real property, including but not
limited to, ingress and egress, passage and parking of vehicles; passage and
accommodation of pedestrians; sewer lines, water and gas mains, electrical power
lines, telephone lines, and other utility lines; development and construction of
said Tract; the construction, reconstruction, erection, removal and maintenance,
on, to, over, under and across to a maximum distance of 14 feet, of footings,
supports, canopies, flag poles, roof and building overhangs, awnings, alarm
bells, signs, lights and lighting devices and similar appurtenances over the
"Common Area" as defined and described in that certain Construction, Operation
and Reciprocal Easement Agreement in and upon all the terms, covenants,
conditions, provisions, reservations, limitations, duties, obligations, liens,
assessments and easements as more particularly and fully described and set forth
in said agreement by and between ▇▇▇▇-▇▇▇▇▇▇ Associates, a limited partnership
in which ▇▇▇▇▇▇ ▇. ▇▇▇▇, Inc., a California corporation, is the general partner;
▇▇▇▇▇▇▇▇-▇▇▇▇ Store, Inc., a California corporation; Sears, ▇▇▇▇▇▇▇ and Co., a
New York corporation; Adcor Realty Corporation, a New York corporation; and ▇.▇.
Penney Properties, Inc., a Delaware corporation, dated December 22, 1972 and
recorded December 22, 1972 as Instrument No. 712, as amended by that certain
First Amendment to Construction, Operation and Reciprocal Easement Agreement by
and between ▇▇▇▇-▇▇▇▇▇▇ Associates, a limited partnership in which ▇▇▇▇▇▇ ▇.
▇▇▇▇, Inc., a California corporation, is the general partner; ▇▇▇▇▇▇▇▇-▇▇▇▇
Store, Inc., a California corporation; Sears, ▇▇▇▇▇▇▇ and Co., a New York
corporation; Adcor Realty Corporation, a New York corporation; and ▇.▇. ▇▇▇▇▇▇
Properties, Inc., a Delaware corporation, dated February 1, 1974 and recorded
March 11, 1974 as Instrument No. 3991, as amended by that certain Second
Amendment to Construction, Operation and Reciprocal Easement Agreement by and
between ▇▇▇▇-▇▇▇▇▇▇ Associates, a Limited Partnership in which ▇▇▇▇▇▇ ▇. ▇▇▇▇,
Inc., a California corporation, is the general partner; ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Stores, Inc., a California corporation (fka ▇▇▇▇▇▇▇▇-▇▇▇▇ Stores, Inc.); Sears,
▇▇▇▇▇▇▇ and Co., a New York corporation; Adcor Realty Corporation, a New York
corporation; and ▇.▇. Penney Properties, Inc., a Delaware corporation, dated
September 20, 1984 and recorded October 1, 1984 as Instrument No. ▇▇-▇▇▇▇▇▇▇,
and as further amended by that certain Third Amendment to Construction,
Operation and Reciprocal Easement Agreement by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC, a
California limited liability company; The May Department Stores Company, a New
York corporation; and Sears, ▇▇▇▇▇▇▇ and Co., a New York corporation, dated
December 1, 2001 and recorded January 8, 2002 as Instrument No. ▇▇-▇▇▇▇▇▇▇, all
in the Recorder's Office of Los Angeles County, California.
PARCEL D Easements:
Non-exclusive easements, creating rights in real property as contained in that
certain Declaration of Covenants, Conditions and Restrictions by ▇▇▇▇▇▇ Hills
Mall, LLC, a Delaware limited liability company, dated March 24, 2003 and
recorded March 26, 2003 as Instrument No. 03-838916, in the Recorder's Office of
Los Angeles County, California.
Assessor's Parcel Number: ▇▇▇▇-▇▇▇-▇▇▇ / ▇▇▇▇-▇▇▇-▇▇▇