ASSIGNMENT OF RENTS AND LEASES
Exhibit
10.127
THIS ASSIGNMENT OF RENTS AND LEASES
(together with all extensions, renewals, amendments, substitutions and
replacements hereto and hereof the "Assignment") is dated January
29, 2009 and effective as of January 30, 2009 by GRAND CENTRAL
LIMITED PARTNERSHIP, a Delaware limited partnership, having its principal place
of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the "Assignor") in favor of FIRST
COMMONWEALTH BANK, having its principal place of business at Philadelphia and
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Assignee").
WITNESSETH:
WHEREAS, pursuant to that certain Loan
Agreement (the Loan Agreement and all exhibits, schedules, extensions, renewals,
amendments, substitutions and replacements thereto and thereof is herein
referred to as the "Agreement") dated as of
January 30, 2009 by and between the Assignor and the Assignee, the Assignee has
agreed to make available to the Assignor a term loan in the principal amount of
FORTY SEVEN MILLION AND 00/100 DOLLARS ($47,000,000.00) (the "Loan"), which Loan will be
evidenced by a certain Note (as such term is defined in the Agreement);
and
WHEREAS, the Assignor is the owner of
certain real property and the improvements located in the City of Parkersburg,
Wood County, West Virginia and known as the Grand Central Mall, as more
particularly described on Exhibit A hereto,
together with all buildings and improvements now or at any time located thereon
(all of the foregoing collectively the "Real Estate Collateral");
and
WHEREAS, as a condition precedent
(among others) to the Assignee entering into the Agreement and making the Loan,
the Assignee has required that the Assignor grant to the Assignee a first
perfected mortgage lien and security interest in and to the Real Estate
Collateral, as security for the due and punctual payment of all amounts owed
under and in connection with the Agreement, Loan, the Note, including without
limitation all outstanding principal, all accrued and unpaid interest thereon,
and all fees, expenses, costs, premiums, penalties, indemnity obligations and
all other amounts, of whatever type, owed by the Assignor in connection with the
Agreement, the Loan, and the Note or any Rate Management Agreement entered into
by and between the Bank and the Borrower in connection with the Loan, and for
the due and punctual performance by the Assignor of the Deed of Trust and this
Assignment and all the other Loan Documents (as such term is defined in the
Agreement), (all of the foregoing collectively the "Obligations");
and
WHEREAS,
as an additional condition precedent (among others) to the Assignee entering
into the Agreement and making the Loan to the Assignor, the Assignee has
required that the Assignor, by the execution and delivery of this Assignment,
secure the full and punctual payment of the Obligations and the due and punctual
performance of the Loan Documents by assigning to the Assignee all of the
Assignor's rights, title and interests in and to the rents, leases, profits and
other amounts relating to or arising from or in connection with the Real Estate
Collateral.
NOW, THEREFORE, in consideration of the
premises and for other good and valuable consideration, the receipt and adequacy
of which are hereby conclusively acknowledged by the Assignor, in order to
secure (i) the full and punctual payment of the Obligations, including, without
limitation, the principal of, and interest on, the Note in accordance with the
terms and conditions of the Note, and (ii) the full and punctual
performance of this Assignment, the Note, the Agreement and the other Loan
Documents, as they may be amended, modified or supplemented from time to time,
the Assignor and the Assignee hereby agree as follows:
ARTICLE
I
INCORPORATION BY REFERENCE;
DEFINITIONS; RULES OF CONSTRUCTION
1.1 Incorporation
by Reference. All of the terms
and provisions of the Agreement, the Note and the other Loan Documents are
specifically incorporated herein by reference and made a part hereof as though
set forth herein. The foregoing recitals are hereby incorporated into
and made a material part of this Assignment.
1.2 Definitions. As used in this
Assignment, except as otherwise noted, the capitalized terms used herein as
defined terms which are not defined herein but which are defined in the
Agreement and the Note shall have the same meanings herein as are given them in
the Agreement, the Note or the Deed of Trust and Security Agreement dated as of
even date herewith and executed by the Assignor in favor of the Assignee (the
"Deed of
Trust").
1.3 Rules of
Construction. In this
Assignment (except as otherwise expressly provided or unless the context
otherwise requires) (i) terms defined in the singular shall have comparable
meanings when used in the plural, and vice versa, (ii) any pronoun used shall be
deemed to cover all genders, (iii) the words "hereof", "herein" and "hereunder"
and words of similar import shall refer to this Assignment as a whole and not to
any particular provision of this Assignment, (iv) all references to particular
Articles, Sections, items, clauses, exhibits and schedules are references to the
Articles, Sections, items, exhibits and schedules of and to this Assignment, (v)
all references to any Person shall include such Person's heirs, executors,
administrators, successors and assigns, (vi) any references to any Law shall be
deemed to be a reference to such Law as it may have been or may be amended,
supplemented or replaced from time to time, (vii) all references to any Loan
Document or any other agreement, contract or instrument shall be deemed to
include any amendments, supplements, extensions, waivers, modifications and
replacements thereto and thereof, (viii) the word "including" shall mean
"including without limitation", (ix) accounting terms not defined shall have the
meanings given them under GAAP, and (x) Article, Section and other headings used
in this Assignment are intended for convenience only and shall not affect the
meaning or construction of this Assignment.
1.4 Additional
Defined Terms. As used in this
Assignment the following terms shall have the meanings indicated:
"Anchor Lease" shall mean any
Lease now, or hereafter affecting the Real Estate Collateral, demising more than
10,000 square feet of leasable area.
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"Lease" shall mean any lease,
sublease, license agreement and other occupancy or use agreement (whether oral
or written), which covers or relates to the Real Estate Collateral or any
portion thereof, and all guaranties of any of the foregoing, together with all
options therefor, amendments thereto and renewals, extensions and modifications
thereof, including, without limitation, any cash or securities deposited under
the Leases to secure performance by tenants of their obligations under the
Leases, whether such cash or securities are to be held until the expiration of
the terms of the Leases or applied to one or more of the installments of rent
coming due, and all guaranties of any of the foregoing, all of the foregoing
whether now in existence or hereafter arising or created.
ARTICLE
II
ASSIGNMENT;
SECURITY
2.1 Assignment. The Assignor does
hereby sell, assign, transfer, and set over unto the Assignee, its successors
and assigns, all of the right, title and interest of the Assignor in, to, and
under:
(i) all
of the existing Leases as of the date hereof, and (ii) any and all other Leases
entered into, arising or created from time to time;
(ii) all
rents, earnings, income, issues, profits (including without limitation any
additional rent due under the Leases, any security deposits in connection with
the Leases, any payments made under any Lease in lieu of rent or any other
payment, and any proceeds receivable by reason of tenants exercising any right
of first refusal or any option to purchase any portion of the Real Estate
Collateral) arising from the Real Estate Collateral or from the Leases and all
other sums due or to become due under and pursuant thereto, including but not
limited to all amounts due or to become due pursuant to guarantees of any such
Leases or any such other amounts, and all of the Assignor's right, title and
interest in and to such guarantees, all of the foregoing whether now in
existence or hereafter arising;
(iii) all
proceeds payable under any policy of insurance covering loss of rents under any
Lease or loss of any other amounts described in item (ii) above for any cause
(except to the extent such proceeds are payable directly to the Assignor, as set
forth in the Deed of Trust);
(iv) all
proceeds of and rights of the Assignor in connection with any condemnation
proceeding, exercise of the right of eminent domain, sale in lieu of
condemnation or eminent domain, or alteration of the grade of any street
affecting the Real Estate Collateral or any part thereof; (except to the extent
such proceeds are payable directly to the Assignor, as set forth in the Deed of
Trust);
(v) all
tax refunds, rebates, and returns relating to the Real Estate Collateral or any
part thereof;
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(vi) all
rights, powers, privileges, options, and other benefits of the Assignor, as
lessor, under the Leases, including, but not by way of limitation, (A) the
immediate and continuing right to receive and collect all rents, income,
revenues, issues, profits, condemnation awards, administrative rents, use and
occupancy payments, damages, moneys, and security payable or receivable under or
with respect to the Leases, or pursuant to any of the provisions thereof,
whether as rent or otherwise, (B) the right to accept or reject any offer made
by any tenant or other Person which is a party to any Lease (each tenant or
other such Person is hereinafter referred to as a "Tenant") pursuant to its
Lease to purchase the Real Estate Collateral, or any part thereof, and/or any
other property subject to the Lease as therein provided and to perform all other
necessary or appropriate acts with respect to such purchases as agent and
attorney-in-fact for the Assignor, and (C) the right to make all waivers,
agreements, and settlements, to give and receive all notices, consents, and
releases, to take such action upon the happening of a default under any Lease,
including the commencement, conduct and consummation of proceedings at law or in
equity as shall be permitted under any provision of any Lease or by law, and to
do any and all other things whatsoever which the Assignor is or may become
entitled to do under the Leases; and
(vii) together
with all other rights, powers, privileges, options and benefits of the Assignor
in connection with the Real Estate Collateral, including without limitation, the
right to use and possession of the Real Estate Collateral, and all parts
thereof, and all personal property located on or used or usable in connection
therewith;
all of
the foregoing subject, however, to the right and license hereinafter granted by
the Assignee to the Assignor in Section 5.4.
2.2 Security. This Assignment
is made and given as security for, and shall remain in full force and effect
until, (i) the payment in full of all Obligations, including but not limited to
principal, interest and premium, if any, on the Note; and (ii) the full and
complete performance and observance by the Assignor of all of the terms,
covenants and conditions to be performed or observed by the Assignor under the
Loan Documents.
ARTICLE
III
REPRESENTATIONS;
COVENANTS
3.1 Representations
and Warranties. The Assignor
hereby represents and warrants to the Assignee that, as of the date hereof and
the date of the initial funding of the Loan, (i) the Assignor has not pledged or
otherwise disposed of or encumbered any Leases, or any of the sums due or to
become due thereunder; (ii) the Assignor has not performed any acts or executed
any other instruments which might prevent the Assignee from operating under any
of the terms and conditions of this Assignment or which would limit the Assignee
in such operation; and (iii) the Assignor has not accepted or collected rent or
any other payments under any Lease for any period subsequent to the current
period for which such rent or other payment has already become due and
payable.
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3.2 Affirmative
Covenants. The Assignor
hereby covenants and agrees that it will:
(i) observe,
perform, and discharge, duly and punctually, all and singular, the obligations,
terms, covenants, conditions and warranties of the Loan Documents to which the
Assignor is a party and the Leases on the part of the Assignor to be kept,
observed and performed;
(ii) enforce
the performance of each and every material obligation, term, covenant,
condition, and agreement in each Lease by any tenant to be performed, and
enforce all remedies available to the Assignor against any tenant under or any
guarantor of a Lease in case of a default thereunder, and appear in and defend
any action or proceeding arising under or in any manner connected with such
Leases, all at the Assignor's sole cost and expense if so provided in such
Lease, but in any event at no cost or expense to the Assignee;
(iii) appear
in and defend any action or proceeding arising under, occurring out of, or in
any manner connected with any Lease or the obligations, duties, or liabilities
of the Assignor or any tenant thereunder, and, at the request of the Assignee,
to do so in the name and on behalf of the Assignee, but at the expense of the
Assignor;
(iv) deliver
to the Assignee, (i) within a reasonable time after execution thereof all new
Anchor Leases and each material amendment thereof and (ii) within a reasonable
time after the request of the Bank all other new Leases on the Rent Roll and
each material amendment thereof;
(vi) procure
and keep in force such insurance coverage with such insurers as is described in
the Loan Documents;
(vii) give
prompt notice to the Assignee of any material default of which it is aware under
any Anchor Lease, and promptly deliver to the Assignee a copy of any notice of
any material default under any such Lease sent or received by the Assignor, and
any notice of cancellation of any Lease, which is received by the Assignor from
or on behalf of any tenant under such a Lease; and
(viii) at
the request of the Assignee, execute and deliver to the Assignee such further
documents and instruments and do and perform such other acts and things as the
Assignee may deem reasonably necessary or appropriate, from time to time, to
make effective this Assignment and the various covenants of the Assignor herein
contained and to more effectively vest in and secure to the Assignee the sums
due or hereafter to become due under the Leases, including, without limitation,
the execution of such additional assignments as shall be deemed reasonably
necessary by the Assignee to effectively vest in and secure to the Assignee all
rents, income, and profits from and under any and all Leases.
3.3 Negative
Covenants. The Assignor
hereby covenants and agrees that it will not, without in each instance obtaining
the prior written consent of the Assignee, which consent shall not be
unreasonably withheld:
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(i) suffer
or permit to occur any release of material liability of any tenant under or any
guarantor of an Anchor Lease or the withholding of rent or of any other payment
under an Anchor Lease;
(ii) consent
to the material release or reduction of any obligation of a tenant under or
guarantor of any Anchor Lease;
(iii) reduce
or discount the rent or any other payments under any Anchor Lease by any
material amount;
(iv) accept
payment of any installment of rent or any other payment under any Lease more
than one month in advance of the due date thereof;
(v) except
as permitted in each Anchor Lease permit or consent to an assignment of any
portion of the interest of any tenant under any Anchor Lease or to a subletting
thereof;
(vi) assign,
pledge, encumber, or otherwise transfer any Lease or any right or interest of
the Assignor thereunder or in any rent or other payment thereunder;
(vii) assign,
pledge, encumber, transfer or convey any interest of the Assignor in the Real
Estate Collateral other than as permitted in the Agreement;
(viii) request,
consent to, agree to, or accept a subordination of any Lease to any deed of
trust, mortgage or other lien or encumbrance now or hereafter affecting the Real
Estate Collateral other than as permitted in the Agreement; or
3.4 Indemnity
by the Assignor. The Assignor
hereby agrees to indemnify and hold any Indemnified Person of, from, and against
any and all liability, loss, damage, cost and expense which any such Person may
or might incur under or by reason of this Assignment and of, from and against
any and all claims and demands whatsoever which may be asserted against any such
Person by reason of any alleged obligation or undertaking on the part of the
Assignee to perform or discharge any of the terms, covenants or agreements
contained herein or in the Leases, except for claims and demands arising due to
the gross negligence or willful misconduct of the Assignee. Should
any such Person incur any such liability, loss or damage under or by reason of
this Assignment, or in defense against any such claims or demands, then the
amount thereof, including all reasonable costs, expenses, and attorneys' fees
actually incurred in connection therewith, together with interest thereon at the
Default Rate if such amount is not paid within five (5) days of demand therefor,
shall be a part of the Obligations secured by this Assignment and by the other
Loan Documents. The Assignor shall reimburse the Assignee therefor
within five (5) days after demand therefor, and upon failure of the Assignor to
do so, the Assignee may declare all sums secured hereby, and the same shall
thereupon become, immediately due and payable.
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ARTICLE
IV
DEFAULT
4.1 Event of
Default. "Event of Default" shall be as defined in the Loan
Agreement.
ARTICLE
V
RIGHTS OF
ASSIGNEE
At any
time after the occurrence of an Event of Default:
5.1 Powers of
Assignee. Assignee, without waving any default, shall, at its
option, have the complete right, power and authority:
(i) to
terminate the right and license granted to the Assignor hereunder and
thereafter, without taking possession, demand, collect, receive, and ▇▇▇ for the
rents and other sums payable under the Leases; and
(ii) without
regard to the adequacy of the security, with or without process of law,
personally, by agent, by attorney, by the Assignee under the Deed of Trust, or
by a receiver to be appointed by court, to enter upon, take, and maintain
possession of and operate the Real Estate Collateral, or any part thereof,
together with all documents, books, records, papers and accounts relating
thereto; exclude the Assignor, its agents and employees, therefrom; and hold,
operate, manage and control the Real Estate Collateral, or any part or parts
thereof, as fully and to same extent as the Assignor could do if in possession,
and, in such event, without limitation and at the expense of the Assignor, from
time to time:
(A) rent
or lease the whole or any part or parts of the Real Estate Collateral for such
term or terms and on such conditions as may seem proper to the Assignee,
including leases for terms expiring beyond the maturity of the Obligations
secured by the Loan Documents, and cancel any Lease for any cause or on any
ground which would entitle Assignor to cancel the same;
(B) demand,
collect and receive from the tenant or tenants now or hereafter in possession of
the Real Estate Collateral, or any part thereof, or from other Persons liable
therefor, all of the rents and other revenues from such tenant or tenants or
other Persons which may now be due and unpaid and which may hereafter become
due;
(C) institute
and prosecute any and all suits for the collection of rents and all other
revenues from the Real Estate Collateral which may now be due and unpaid and
which may hereafter become due; institute and carry on all legal proceedings
necessary for the protection of the Real Estate Collateral, including such
proceedings as may be necessary to recover the possession of the whole or of any
part thereof; institute and prosecute summary proceedings for the removal of any
tenant or tenants or other Persons from the Real Estate Collateral; and pay the
costs and expenses of all such suits and proceedings out of the rents and other
revenues received;
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(D) maintain
the Real Estate Collateral and keep the same in repair, and pay, out of the
rents and other revenues received, the costs of said maintenance and repairs,
including the costs and expenses of all services of all agents and employees,
including their equipment, and of all operating expenses and expenses of
maintaining and keeping the Real Estate Collateral in repair and in proper
condition;
(E) employ
an agent or agents to rent and manage the Real Estate Collateral and to collect
the said rents and other revenues thereof and pay the reasonable value of its or
their services out of the rents and other revenues received;
(F) effect
and maintain general liability insurance, fire insurance, boiler insurance,
plate glass insurance, rent insurance, workmen's compensation law insurance, and
generally such other insurance as is customarily in effect by an owner of real
property of a style and kind similar to the Real Estate Collateral, or as
Assignee may deem advisable or necessary to effect, and pay the premiums and
other charges therefor out of the rents and other revenues
received;
(G) pay,
out of the rents and other revenues received, all sums, and the interest
thereon, now due to Assignee under the Loan Documents, and hereafter to become
so due, and all taxes, assessments, and other charges now due and unpaid and
which may hereafter become due and a charge or lien upon the Real Estate
Collateral;
(H) execute
and comply with all applicable laws, rules, orders, ordinances, and requirements
of any and all governmental authorities affecting the Real Estate Collateral and
with all covenants, agreements, and restrictions relating to the Real Estate
Collateral or to the use, occupancy or maintenance thereof, and pay the costs
thereof out of the rents and other revenues received;
(I) act
exclusively and solely in the place and stead of the Assignor and to have all
the powers of the Assignor for the purposes aforesaid; and
(J) from
time to time determine to which one or more of the aforesaid purposes the rents
and other revenues shall be applied and the amount to be applied
thereto.
5.2 Application
of Rents. After payment of all proper charges and expenses,
including the just and reasonable compensation for the services of the Assignee,
its attorneys, agents, clerks, servants and others employed by the Assignee in
connection with the operation, management and control of the Real Estate
Collateral and the conduct of the business thereof, and such further sums as may
be sufficient to indemnify the Assignee from and against any liability, loss,
damage, cost and expense on account of any matter or thing done in good faith in
pursuance of the rights and powers of the Assignee hereunder, the Assignee may,
at its option, retain and apply the net amount of rents, revenues, income,
issues, and profits arising from the Real Estate Collateral, in whole or in
part, to any and all amounts due or owing to the Assignee from the Assignor
under the terms and provisions of the Loan Documents, or any other agreement now
or at any time hereafter existing between the Assignor and the
Assignee. The manner of the application of such net amount of rents,
income, issues and profits and the obligations to which the same shall be
applied shall be within the sole discretion of the Assignee. The
balance of such net amount of rents, revenues, income, issues, and profits shall
be released to or upon the order of the Assignor.
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5.3 Attorney-in-Fact. Assignor
hereby irrevocably appoints Assignee as its true and lawful attorney-in-fact,
coupled with an interest, hereby grants and gives Assignee the full power and
authority as principal for all purposes set forth herein, together with full
power and authority to appoint a substitute or substitutes to perform any of the
same and the right to revoke any such appointment at pleasure, and hereby
ratifies and confirms whatsoever Assignee, as such attorney-in-fact, and its
substitutes shall do by virtue of this appointment and grant of authority.
Assignor acknowledges and agrees that the power of attorney herein granted is
for the benefit of the Assignee and does not require the Assignee to act for the
benefit of Assignor as principal; and the power of attorney herein granted is
not intended to make the Assignee a fiduciary for Assignor. The
Assignee hereby accepts this power of attorney and all powers granted hereunder
for the benefit of the Assignee. Assignor hereby acknowledges,
consents and agrees that the power of attorney granted pursuant to this Section
5.3 is irrevocable and coupled with an interest.
5.4 Direction
to Tenants. The Assignor
hereby consents to and irrevocably authorizes and directs the tenants under the
Leases and any successors to the interest of said tenants, upon demand and
notice from the Assignee of the right of the Assignee to receive the rent and
other amounts payable under such Leases (which demand and notice shall not be
made and delivered until an Event of Default has occurred), to pay to the
Assignee the rents and other amounts due or to become due under the Leases, and
said tenants shall have the right to rely upon such demand and notice from the
Assignee and shall pay such rents and other amounts to the Assignee without any
obligation or right to determine the actual existence of the right of the
Assignee to receive such rents and other amounts, notwithstanding any notice
from or claim of the Assignor to the contrary. The Assignor shall have no right
or claim against said tenants for any such rents and other amounts so paid by
said tenants to the Assignee. The Assignor hereby agrees that, at the
request of the Assignee, the Assignor will furnish each tenant under any Lease
with a true and complete copy of this Assignment. If the Real Estate
Collateral or any part thereof is now or at any time hereafter used or occupied
by the Assignor as a homestead or otherwise, then the Assignor shall pay to the
Assignee, upon written demand by the Assignee, such sum per month as, in the
opinion of the Assignee, is reasonable rent for the Real Estate Collateral so
used or occupied, to be applied by the Assignee as herein provided, and, upon
demand by the Assignee, the Assignor shall vacate the Real Estate Collateral to
the Assignee.
5.5 License
to the Assignor. Notwithstanding
the foregoing provisions making and establishing a present and absolute transfer
and assignment of the Leases and the rents, earnings, income, profits and
payments under guarantees arising therefrom and from or relating to the Real
Estate Collateral, so long as no Event of Default shall have occurred, the
Assignor shall have the right and license to occupy the Real Estate Collateral
as landlord or otherwise, to collect, use, and enjoy the rents, issues, profits
and other sums payable under and by virtue of any Lease and from or relating to
the Real Estate Collateral, but only as the same become due under the provisions
of such Lease, and to enforce the covenants of each Lease, and all other rights
described in Section 2.1 hereof.
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5.6 Right of
Inspection. The Assignee and
its authorized agents and employees shall have the right, at the option of the
Assignee, to enter into the Real Estate Collateral during normal business hours
upon at least 24 hours' prior notice (provided, however,
that no notice need be given during the continuance of an Event of Default) for
the purpose of inspecting the same and, at the option of the Assignee, remedying
any default or Event of Default hereunder on the part of the Assignor,
including, but not limited to, any failure on the part of the Assignor to repair
the Real Estate Collateral.
5.7 Rights
Optional. The Assignee
shall not be obligated to perform or discharge any obligation, duty or liability
of the Assignor, nor shall the Assignee be responsible for its failure to
exercise or enforce any rights granted to it under this
Assignment. Any failure or omission by the Assignee to enforce this
Assignment for any period of time shall not impair the force or effect hereof or
prejudice the rights of the Assignee, and the Assignee shall not be required
under this Assignment to exercise or enforce any of the rights herein granted to
it, it being understood that all matters contained herein are strictly within
the discretion of the Assignee. The Assignee shall not be obligated
to perform or discharge any obligation of the Assignor under any
Lease. This Assignment in no manner places on the Assignee any
responsibility for (i) the control, care, management or repair of the Real
Estate Collateral, (ii) the carrying out of any of the terms and conditions of
the Leases, (iii) any waste committed on the Real Estate Collateral, or (iv) any
dangerous or defective condition on the Real Estate Collateral (whether known or
unknown). The Assignor agrees to indemnify the Assignee for, and
forever hold it harmless from, any and all claims arising out of, or in
connection with, any Leases or any assignment thereof, except for those caused
by the gross negligence or willful misconduct of the Assignee.
5.8 Rights
Cumulative. No right or
remedy herein conferred upon or otherwise available to the Assignee is intended
to be or shall be construed to be exclusive of any other right or remedy, but
each and every one of the rights and remedies of the Assignee hereunder are
cumulative and not in lieu of, but in addition to, any rights or remedies which
the Assignee may have under any of the other Loan Documents, at law, or in
equity, any and all of which such rights and remedies may be exercised by the
Assignee prior to, simultaneously with, or subsequent to any action taken
hereunder. Any and all rights and remedies of the Assignee may be
exercised from time to time and as often as the Assignee deems such exercise to
be expedient, and the delay or failure of the Assignee to avail itself of any of
the terms, provisions, and conditions of this Assignment for any period of time,
or at any time or times, shall not be construed or deemed to be or constitute a
waiver or impairment thereof. No delay or omission to exercise any
right or power accruing upon any Default or Event of Default shall impair any
such right or power or shall be construed to be a waiver of any such Default or
Event of Default or an acquiescence therein; nor shall the giving, taking or
enforcement of any other or additional security, collateral, or guaranty for the
payment of the Obligations secured under this Assignment operate to prejudice,
waive or affect the security of this Assignment or any rights, power or remedies
hereunder; nor shall the Assignee be required to first look to, enforce, or
exhaust, any such other or additional security, collateral, or
guaranty. The Assignor hereby further agrees that (i) none of the
rights or remedies of the Assignee available under any of the Loan Documents or
otherwise shall be delayed or in any way prejudiced by this Assignment; (ii)
notwithstanding any variation or modification, at any time, of the terms of any
Loan Document or any extension of time for payment thereunder or under the Note
or any release of part or parts of the security conveyed under any of the Loan
Documents, the Leases and all of the benefits assigned hereunder shall continue
as additional security in accordance with the terms hereof; and (iii) each and
all of the Leases shall remain in full force and effect, irrespective of any
merger of the interest of a lessor and tenant thereunder.
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5.9 Rights
Throughout Redemption. The right of the
Assignee to collect and receive the rents, other revenues and payments under
guarantees assigned hereunder, to take possession of the Real Estate Collateral,
and/or to exercise any of the rights or powers herein granted to the Assignee
shall, to the extent not prohibited by applicable law, also extend to the period
from and after the filing of any suit to foreclose the lien of the Deed of
Trust, including any period allowed by law for the redemption of the Real Estate
Collateral, whether before or after any foreclosure sale.
5.10 No
Waiver. The Assignor
hereby agrees that the collection of rents and the application as aforesaid, the
entry upon and taking of possession of the Real Estate Collateral, or any part
thereof, or the exercise of any other right or remedy by the Assignee shall not
(i) cure or waive any Event of Default hereunder or under any of the other Loan
Documents; (ii) waive, modify, or affect any notice given hereunder; (iii)
affect or impair any other right or remedy of the Assignee; or (iv) invalidate
any act done pursuant to any such notice. The enforcement of any
right or remedy of the Assignee, once exercised, shall continue for so long as
the Assignee shall elect, and if the Assignee shall thereafter elect to
discontinue the exercise of any such right or remedy, then the same or any other
right or remedy hereunder or otherwise available may be reasserted at any time
and from time to time upon any subsequent or continuing default.
5.11 Indulgences
by the Assignee. In the event that
the Assignee (i) grants any extension of time or forbearance with respect to the
payment of any of the Obligations secured by this Assignment; (ii) takes other
or additional security for the payment thereof; (iii) waives or fails to
exercise any right granted herein or under any of the Loan Documents; (iv)
grants any release, with or without consideration, of the whole or any part of
the security held for the payment of the Obligations secured hereby or the
release of any Person liable for payment of such debts; (v) amends or modifies,
in any respect, any of the terms and provisions hereof or of any of the other
Loan Documents (including substitution of another Note for the Note); then and
in any such event, such act or omission to act shall not release the Assignor or
any co-makers, sureties, or guarantors of this Assignment, the other Loan
Documents or the Obligations, under any covenant of any of the Loan Documents,
nor preclude the Assignee from exercising any right, power or privilege herein
granted or intended to be granted in the event of any other Default or Event of
Default then made or any subsequent Default or Event of Default, nor in any way
impair or affect the lien or priority of this Assignment or any other Loan
Document.
ARTICLE
VI
GENERAL
PROVISIONS
6.1 Assignee
Not a Mortgagee in Possession. The acceptance by
the Assignee of this Assignment, with all of the rights, powers, privileges and
authority so created, shall not, prior to actual entry upon and taking
possession of the Real Estate Collateral by the Assignee (i) be deemed or
construed to constitute the Assignee a mortgagee in possession; (ii) thereafter,
at any time or in any event, impose any obligation whatsoever upon the Assignee
to appear in or defend any action or proceeding relating to the Leases or the
Real Estate Collateral, to take any action hereunder, to expend any money or
incur any expenses, to perform or discharge any obligation, duty, or liability
under the Leases, or to assume any obligation or responsibility for any security
deposits or other deposits delivered to the Assignor by or on behalf of any
tenant under any Lease and not assigned and actually delivered to the Assignee;
or (iii) render the Assignee liable in any way for any injury or damage to
person or property sustained by any Person in or about the Real Estate
Collateral except for injuries or damages caused by the willful misconduct or
gross negligence of the Assignee or its employees or agents.
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6.2 Successors
of the Assignor. In the event of
the sale or transfer of all or any part of the Real Estate Collateral, by
operation of law or otherwise, the Assignee is authorized and empowered to deal
with the transferee with reference to this Assignment, the Real Estate
Collateral, or the Obligations secured hereby, or with reference to any of the
terms or conditions contained herein, as fully and to the same extent as it
might deal with the Assignor and without in any way releasing or discharging any
liabilities of the Assignor hereunder or under any of the Loan
Documents.
6.3 Integration. This Assignment
is the entire agreement between the parties relating to this assignment of
rents, leases and profits, and, it supersedes all prior understandings and
agreements between the parties with respect hereto.
6.4 Relationship
Between Assignee and Assignor. Nothing contained
herein, in any of the other Loan Documents, or in any other agreement, document,
instrument or certificate shall in any manner be construed as making the
Assignee and the Assignor partners or joint venturers or as creating any
relationship between the Assignee and the Assignor other than that set forth in
the Loan Documents to which the Assignor and the Assignee are
parties.
6.5 No Third
Party Beneficiaries. It is expressly
intended, understood, and agreed that (i) this Assignment and the other Loan
Documents are made and entered into for the sole protection and benefit of the
Assignor and the Assignee and their respective successors and assigns (but in
the case of the assigns of the Assignor, only to the extent permitted
hereunder), and no other Person or Persons shall have any right to bring an
action hereunder or rights to any Loan or other funds now or at any time
hereafter secured or to be secured hereby; (ii) that such Loan does not
constitute a trust fund for the benefit of any third party; (iii) that no third
party shall under any circumstances be entitled to any equitable lien on any
undisbursed Loan or other proceeds at any time; and (iv) that the Assignee shall
have a lien upon and the right to direct application of any undisbursed Loan
funds as additional security for the Loan Documents and the
Obligations.
6.6 Expenses
of the Assignee. In addition to
the payment of other costs and expenses which the Assignor is required to pay
pursuant to the other Loan Documents, if the Assignee is made a party to any
suit or proceeding by reason of the interest of the Assignee in the Real Estate
Collateral and this Assignment is placed in the hands of an attorney to defend
or enforce any rights of the Assignee, then the Assignor shall reimburse the
Assignee for all reasonable costs and expenses, including attorneys' fees,
actually incurred by the Assignee in connection therewith, except where it is
finally determined that the Assignee was separately negligent or acted in a
willfully misconduct manner with respect to such suits and
proceedings. All amounts incurred by the Assignee hereunder shall be
secured hereby and shall become part of the Obligations and shall be due and
payable by the Assignor to the Assignee forthwith within five (5) days following
demand therefor, with interest thereon at the Default Rate if not paid within
five (5) days following demand.
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6.7 Notices. All notices
required to be delivered to this Assignment shall be in writing and shall be
sent to the parties hereto in accordance with Section 8.5 of the Agreement, and
shall become effective in accordance with the provisions of such Section
8.5.
6.8 Applicable
Law. This Assignment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
the principles thereof regarding conflict of laws, excepting applicable Federal
law and except only to the extent precluded by the mandatory application of the
law of another jurisdiction.
6.9 Forum. The
parties hereto agree that any action or proceeding arising out of or relating to
this Assignment shall be commenced in the Court of Common Pleas of Indiana
County, Pennsylvania, or in the United States District Court for the Western
District of Pennsylvania and each party agrees that a summons and complaint
commencing an action or proceeding in either of such courts shall be properly
served and shall confer personal jurisdiction if served personally or by
certified mail to the party at its address specified in Section 6.7 of this
Assignment, or as otherwise provided under the laws of the Commonwealth of
Pennsylvania. Further, the parties hereby specifically consent to the
personal jurisdiction of the Court of Common Pleas of Indiana County,
Pennsylvania, and the United States District Court for the Western District of
Pennsylvania, and waive and hereby acknowledge that the parties are estopped
from raising any claim that any such court lacks personal jurisdiction over such
party so as to prohibit either such court from adjudicating any issues raised in
a complaint filed with any such court against either party to this
Assignment. The Assignor hereby acknowledges and agrees that the
choice of forum contained in this Section shall not be deemed to preclude the
enforcement of any judgment obtained in any forum or the taking of any action
under the Loan Documents to enforce the same in any appropriate
jurisdiction.
6.10 Amendments. The Assignor and the
Assignee may from time to time enter into amendments, extensions, supplements
and replacements to and of this Assignment, and the Assignee may from time to
time waive compliance with a provision hereof. No amendment,
extension, supplement, replacement or waiver shall be effective unless it is in
writing and is signed by the Assignor and the Assignee. All waivers
shall be effective only for the specific instance and for the specific purpose
for which it is given.
6.11 Successors
and Assigns. This Assignment
shall be binding upon the Assignor and the Assignee and their respective heirs,
personal representatives, successors and assigns, and shall inure to the benefit
of the Assignor, the Assignee and their heirs, personal representatives,
respective successors and assigns; provided, however,
that the Assignor shall not assign its rights or duties hereunder without the
prior written consent of the Assignee.
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6.12 Severability. Any
provision of this Assignment which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or enforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
6.13 Counterparts. This Assignment
and any amendment hereto may be executed, acknowledged and delivered in several
counterparts, and by each party on a separate counterpart, each of which, when
so executed, acknowledged and delivered, shall constitute but one and the same
instrument. In proving this Assignment, it shall not be necessary to
produce or account for more than one such counterpart signed by the other party
against whom enforcement is sought.
6.14 Duration. This Assignment
shall become null, void, and of no further force or effect upon the final
payment in full of all of the Obligations.
6.15 Waiver of Jury
Trial. Each of the Assignor and the Assignee irrevocably
voluntarily and intentionally waives any and all right it may have to trial by
jury in any action or proceeding of any kind or nature in any court, arising out
of, under or by reason of this Assignment. The Assignee and the
Assignor acknowledge that this waiver of jury trial has been specifically
negotiated as a part of this Assignment and the other Loan
Documents.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Assignor,
intending to be legally bound hereby, has caused this Assignment of Rents and
Leases to be executed as of the date first written above, as an instrument under
seal.
|
ATTEST/WITNESS:
_______________________________
Name:
Title:
|
GRAND
CENTRAL LIMITED PARTNERSHIP, a Delaware limited partnership
By: GLIMCHER
GRAND CENTRAL, INC., a Delaware corporation, its general
partner
By:
_______________________(SEAL)
Name: ▇▇▇▇
▇. ▇▇▇▇
Title: Executive
Vice President, Chief
Financial
Officer and Treasurer
|
|
WITNESS:
_______________________________
Name:
|
FIRST
COMMONWEALTH BANK
By: __________________________
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title: Vice
President
|
ACKNOWLEDGEMENT
STATE OF
OHIO )
) SS:
COUNTY OF
FRANKLIN
)
On this, the ____ day of January, 2009,
before me, a Notary Public, personally appeared ▇▇▇▇ ▇. ▇▇▇▇, who acknowledged
himself to be the Executive Vice President, Chief Financial Officer and
Treasurer of Glimcher Grand Central, Inc., a Delaware corporation, the general
partner of Grand Central Limited Partnership, a Delaware limited partnership,
and that he as such officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained, by signing the name of Grand
Central Limited Partnership by himself as such officer.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal the day and year first
above written.
_______________________________
Notary Public
My
Commission Expires:
ACKNOWLEDGEMENT
COMMONWEALTH
OF
PENNSYLVANIA )
) SS:
COUNTY OF
ALLEGHENY
)
On this, the ____ day of January, 2009,
before me, a Notary Public, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who
acknowledged himself to be a Vice President of First Commonwealth Bank, and that
he as such officer, being authorized to do so, executed the foregoing instrument
for the purposes therein contained, by signing the name of First Commonwealth
Bank by himself as such officer.
IN WITNESS WHEREOF, I hereunto set my
hand and official seal the day and year first above written.
_______________________________
Notary Public
My
Commission Expires:
EXHIBIT
A
Legal
Description of the Land
DATED
JANUARY 29, 2009 AND
EFFECTIVE
AS OF JANUARY 30, 2009
BY
AND BETWEEN
GRAND
CENTRAL LIMITED PARTNERSHIP
(Assignor)
AND
FIRST
COMMONWEALTH BANK
(Assignee)
When
Recorded Return To:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇