This document prepared by and EXHIBIT 10.29
after recording return to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
7800 Sears Tower
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
ASSIGNMENT OF LEASES AND RENTS
------------------------------
Project Commonly Known As
"Scottsdale Quarter"
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") made as of the 30th
day of November, 2007, is by KIERLAND CROSSING, LLC, a Delaware limited
liability company, having an office c/o Glimcher Properties Limited Partnership,
000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000, ("Assignor"), in favor of KEYBANK
NATIONAL ASSOCIATION, a national banking association, having an office at 000
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, as Administrative Agent ("Assignee") on
behalf of and for the benefit of the Lenders (as defined in the Loan Agreement),
their respective successors and assigns.
RECITALS
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A. On or about the date hereof, Assignor, Assignee and Lenders entered into
that certain Construction, Acquisition and Interim Loan Agreement ("Loan
Agreement") whereby Lenders agreed to make a secured construction, acquisition
and interim loan (the "Loan") available to Assignor in the maximum aggregate
amount at any time outstanding not to exceed the sum of Two Hundred Twenty
Million and 00/100ths Dollars ($220,000,000.00), to finance the acquisition,
development and construction of a 631,816 square foot mixed use/lifestyle center
located at 00000 Xxxxx Xxxxxxxxxx Xxxx in Scottsdale, Arizona (the "Project").
Phases I and II of the Project are legally described in Exhibit A attached
hereto and made a part hereof. Capitalized terms used and not otherwise defined
herein shall have the meanings given to them in the Loan Agreement.
B. In connection with the Loan, Assignor has executed and delivered one or
more promissory notes in favor of Lenders of even date herewith in the aggregate
amount of the Loan (as they may be amended, supplemented or replaced, the
"Notes"), payment of which is secured by (i) a Deed of Trust made by Assignor in
favor of Assignee encumbering Phases I and II of the Project, and (ii) the other
Loan Documents.
C. Assignor is desirous of further securing to Lenders the performance of
the terms, covenants and agreements hereof and of the Notes, the Deed of Trust
and the Loan Documents.
AGREEMENTS
----------
NOW, THEREFORE, in consideration of the making of the Loan evidenced by the
Notes by Lenders to Assignor and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Assignor does hereby
irrevocably, absolutely and unconditionally transfer, sell, assign, pledge and
convey to Assignee, its successors and assigns, all of the right, title and
interest of Assignor in and to:
(a) any and all leases, licenses, rental agreements and occupancy
agreements of whatever form now or hereafter affecting all or any part of the
Project and any and all guarantees, extensions, renewals, replacements and
modifications thereof (collectively, the "Leases"); and
(b) all issues, profits, security or other deposits, whether in the form of
cash or a letter of credit, revenues, royalties, accounts, rights, benefits and
income of every nature of and from the Project, including, without limitation,
minimum rents, additional rents, termination payments, bankruptcy claims,
forfeited security deposits, amounts drawn under letters of credit provided as
security for the obligations of Tenants, damages following default and all
proceeds payable under any policy of insurance covering loss of rents resulting
from untenantability due to destruction or damage to the Project, together with
the immediate and continuing right to collect and receive the same, whether now
due or hereafter becoming due, and together with all rights and claims of any
kind that Assignor may have against any Tenant, lessee or licensee under the
Leases or against any other occupant of the Project (collectively, the "Rents").
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns.
IT IS AGREED that, notwithstanding that this instrument is a present,
absolute and executed assignment of the Rents and of the Leases and a present,
absolute and executed grant of the powers herein granted to Assignee, Assignor
is hereby permitted and is hereby granted a license by Assignee, to retain
possession of the Leases and to collect and retain the Rents unless and until
there shall have occurred and be continuing an "Event of Default" (as defined
herein) under the terms of this Assignment or the Loan Agreement that is
continuing. Upon the occurrence and continuance of an Event of Default, the
aforementioned license granted to Assignor shall automatically terminate without
notice to Assignor, and Assignee may thereafter, without taking possession of
the Project, take possession of the Leases and collect the Rents. Further, from
and after such termination, Assignor shall be the agent of Assignee in
collection of the Rents, and any Rents so collected by Assignor shall be held in
trust by Assignor for the sole and exclusive benefit of Assignee and Assignor
shall, within one (1) Banking Day after receipt of any Rents, pay the same to
Assignee to be applied by Assignee as hereinafter set forth. Furthermore, from
and after the occurrence and continuance of such Event of Default and
termination of the aforementioned license, Assignee shall have the right and
authority, without any notice whatsoever to Assignor and without regard to the
adequacy of the security therefor, to: (a) make application to a court of
competent jurisdiction for appointment of a receiver for all or any part of the
Project, as particularly set forth in the Deed of Trust; (b) manage and operate
the Project, with full power to employ agents to manage the same; (c) demand,
collect, receive and xxx for the Rents, including those past due and unpaid; and
(d) do all acts relating to such management of the Project, including, but not
limited to, negotiation of new Leases, making adjustments of existing Leases,
contracting and paying for repairs and replacements to the Improvements and to
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the fixtures, equipment and personal property located in the Improvements or
used in any way in the operation, use and occupancy of the Project as in the
sole subjective judgment and discretion of Assignee may be necessary to maintain
the same in a tenantable condition, purchasing and paying for such additional
furniture and equipment as in the sole subjective judgment of Assignee may be
necessary to maintain a proper rental income from the Project, employing
necessary managers and other employees, purchasing fuel, providing utilities and
paying for all other expenses incurred in the operation of the Project,
maintaining adequate insurance coverage over hazards customarily insured against
and paying the premiums therefor. Assignee shall apply the Rents received by
Assignor from the Project, after deducting the costs of collection thereof,
including, without limitation, reasonable attorneys' fees and a management fee
for any management agent so employed, against amounts expended for repairs,
upkeep, maintenance, service, fuel, utilities, taxes, assessments, insurance
premiums and such other expenses as Assignee incurs in connection with the
operation of the Project and against interest, principal, required escrow
deposits and other sums which have or which may become due, from time to time,
under the terms of the Loan Documents, in such order or priority as to any of
the items so mentioned as Assignee, in its sole subjective discretion, may
determine. The exercise by Assignee of the rights granted Assignee in this
paragraph, and the collection of, the Rents and the application thereof as
herein provided, shall not be considered a waiver by Assignee of any Event of
Default under the Loan Documents or prevent foreclosure of any liens on the
Project nor shall such exercise make Assignee liable under any of the Leases,
Assignee hereby expressly reserving all of its rights and privileges under the
Deed of Trust and the other Loan Documents as fully as though this Assignment
had not been entered into.
Without limiting the rights granted hereinabove, in the event Assignor
shall fail to make any payment or to perform any act required under the terms
hereof and such failure shall not be cured within any applicable grace or cure
period such that an Event of Default shall have occurred and be continuing, then
Assignee may, but shall not be obligated to, without prior notice to or demand
on Assignor, and without releasing Assignor from any obligation hereof, make or
perform the same in such manner and to such extent as Assignee may deem
necessary to protect the security hereof, including specifically, without
limitation, appearing in and defending any action or proceeding purporting to
affect the security hereof or the rights or powers of Assignee, performing or
discharging any obligation, covenant or agreement of Assignor under any of the
Leases, and, in exercising any of such powers, paying all necessary costs and
expenses, employing counsel and incurring and paying attorneys' fees. Any sum
advanced or paid by Assignee for any such purpose, including, without
limitation, attorneys' fees, together with interest thereon at the Default Rate
from the date paid or advanced by Assignee until repaid by Assignor, shall
immediately be due and payable to Assignee by Assignor on demand and shall be
secured by the Deed of Trust and by all of the other Loan Documents securing all
or any part of the indebtedness evidenced by the Note.
IT IS FURTHER AGREED that this Assignment is made upon the following terms,
covenants and conditions:
1. This Assignment shall not operate to place responsibility for the
control, care, management or repair of the Project upon Assignee or upon
Lenders, or for the performance of any of the terms and conditions of any of the
Leases, nor shall it operate to make Assignee or Lenders responsible or liable
for any waste committed on the Project by any Tenant or any other party or for
any dangerous or defective condition of the Project or for any negligence in the
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management, upkeep, repair or control of the Project. Neither Assignee nor
Lenders shall be liable for any loss sustained by Assignor resulting from
Assignee's failure to let the Project or from any other act or omission of
Assignee in managing the Project. Assignor shall and does hereby indemnify and
hold Assignee and Lenders harmless from and against any and all liability, loss,
claim, demand or damage which may or might be incurred by reason of this
Assignment, including, without limitation, claims or demands for security
deposits from Tenants deposited with Assignor, and from and against any and all
claims and demands whatsoever which may be asserted against Assignee or Lenders
by reason of any alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants or agreements contained in any of the
Leases except to the extent caused solely by the gross negligence or willful
misconduct of Assignee or such Lender. Should Assignee or any Lenders incur any
liability by reason of this Assignment or in defense of any claim or demand for
loss or damage as provided above, the amount thereof, including, without
limitation, reasonable costs, expenses and attorneys' fees shall be immediately
due and payable to Assignee by Assignor upon demand and shall be secured by the
Deed of Trust and by all of the other Loan Documents securing all or any part of
the indebtedness evidenced by the Notes. During the occurrence and continuation
of any Event of Default, any amounts incurred by Assignee or any Lender under
this Section 1 shall bear interest at the Default Rate from the date paid or
incurred by Assignee or such Lender until repaid by Assignor. In the absence of
an Event of Default, any amounts incurred by Assignee or any Lender under this
Section 1 shall bear interest from the tenth (10th) Banking Day following the
date of demand for payment at the Default Rate.
2. This Assignment shall not be construed as making Assignee or any of the
Lenders a mortgagee in possession.
3. Assignee is obligated to account to Assignor only for such Rents as are
actually collected or received by Assignee.
4. Assignor hereby further presently and absolutely assigns to Assignee
subject to the terms and provisions of this Assignment (including the license
granted to Assignor above): (a) any award or other payment which Assignor may
hereafter become entitled to receive with respect to any of the Leases as a
result of or pursuant to any bankruptcy, insolvency or reorganization or similar
proceedings involving any Tenant under such Leases; and (b) any and all payments
made by or on behalf of any Tenant of any part of the Project in lieu of Rent.
Following the occurrence and continuance of an Event of Default, Assignor hereby
irrevocably appoints Assignee as its attorney-in-fact to appear in any such
proceeding and to collect any such award or payment, which power of attorney is
coupled with an interest by virtue of this Assignment and is irrevocable so long
as any sums are outstanding under the loan evidenced by the Notes. All awards or
payments so collected shall be applied to the indebtedness secured hereby in
such order as Assignee shall elect.
5. Assignor represents, warrants and covenants to and for the benefit of
Assignee and Lenders: (a) that Assignor now is (or with respect to any Leases
not yet in existence, will be immediately upon the execution thereof) the
absolute owner of the landlord's interest in the Leases, with full right and
title to assign the same and the Rents due or to become due thereunder; (b)
that, to the best of its knowledge, other than this Assignment and any
assignment to Assignee pursuant to the Deed of Trust there are no outstanding
assignments of the Leases or Rents; (c) that, to the best of its knowledge, no
Rents have been anticipated, discounted, released, waived, compromised or
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otherwise discharged except for prepayment of rent of not more than one (1)
month prior to the accrual thereof; (d) that, to the best of its knowledge,
there are no material defaults now existing under any of the Leases by the
landlord or any Tenant, and there exists no state of facts which, with the
giving of notice or lapse of time or both, would constitute a default under any
of the Leases by the landlord or any Tenant, except as disclosed in writing to
Assignee; (e) that Assignor has and shall duly and punctually observe and
perform all covenants, conditions and agreements in the Leases on the part of
the landlord to be observed and performed thereunder and (f) the Leases are in
full force and effect and are the valid and binding obligations of Assignor,
and, to the knowledge of Assignor, are the valid and binding obligations of each
Tenant thereto.
6. To the extent any Tenant has delivered or shall hereafter deliver a
letter of credit to secure the obligations of such Tenant under its Lease,
Assignor shall promptly after receipt thereof deliver the original of such
letter of credit to Assignee and execute and deliver to Assignee, in the form
required by the issuer of such letter of credit, an absolute assignment of its
rights as beneficiary under such letter of credit, all of which documents
Assignee shall hold as additional security for the obligations of Borrower under
the Loan Documents with respect the Loan. Assignor hereby irrevocably authorizes
Assignee, after the occurrence and during the continuance of an Event of
Default, to present any such absolute assignment to the issuer of such letter of
credit and obtain such issuer's acknowledgement that Assignee shall thereafter
be the beneficiary thereof. At all times prior to such presentation Assignor
shall have the right to modify, amend and otherwise deal with, and if applicable
draw upon, such letter of credit as the beneficiary thereof. At the request of
Assignor, Assignee shall return to Assignor the original of such letter of
credit for such purposes, provided that Assignor shall promptly return such
letter of credit to Assignee when such amendment or modification is issued or
draw is paid and shall promptly deposit with Assignee as additional security for
the Loan the remainder of any proceeds drawn by Assignor thereunder, after
application of such proceeds first to satisfy any then-current obligations of
such Tenant to Assignor under the terms of the related Lease. Any proceeds so
deposited with Assignee shall be held in a segregated pledged account with
Assignee and, to the extent an Event of Default has not occurred and is then
continuing, shall be invested in a short term interest-bearing account or
investment of Assignee, with all interest earned thereon accruing to Assignor.
7. At any time, Assignee may, at its option, notify any Tenant or other
parties of the existence of this Assignment. Assignor does hereby specifically
authorize, instruct and direct each and every present and future tenant, lessee
and licensee of the whole or any part of the Project to pay all unpaid and
future Rents to Assignee upon receipt of demand from Assignee to so pay the same
and Assignor hereby agrees that each such present and future Tenant, lessee and
licensee may rely upon such written demand from Assignee to so pay said Rents
without any inquiry into whether there exists an Event of Default hereunder or
under the Loan Agreement or whether Assignee is otherwise entitled to said
Rents. Assignor hereby waives any right, claim or demand which Assignor may now
or hereafter have against any present or future tenant, lessee or licensee by
reason of such payment of Rents to Assignee, and any such payment shall
discharge such tenant's, lessee's or licensee's obligation to make such payment
to Assignor.
8. Assignee may take or release any security for the indebtedness evidenced
by the Notes, may release any party primarily or secondarily liable for the
indebtedness evidenced by the Notes, may grant extensions, renewals or
indulgences with respect to the indebtedness evidenced by the Notes and may
apply any other security therefor held by it to the satisfaction of any
indebtedness evidenced by the Notes without prejudice to any of its rights
hereunder.
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9. The acceptance of this Assignment and the collection of the Rents in the
event Assignor's license is terminated, as referred to above, shall be without
prejudice to Assignee or Lenders. The rights of Assignee hereunder are
cumulative and concurrent, may be pursued separately, successively or together
and may be exercised as often as occasion therefor shall arise, it being agreed
by Assignor that the exercise of any one or more of the rights provided for
herein shall not be construed as a waiver of any of the other rights or remedies
of Assignee, at law or in equity or otherwise, so long as any obligation under
the Loan Documents remains unsatisfied.
10. All rights of Assignee and Lenders hereunder shall inure to the benefit
of their respective successors and assigns, and all obligations of Assignor
shall bind its successors and assigns and any subsequent owner of the Project.
All rights of Assignee and Lenders in, to and under this Assignment shall pass
to and may be exercised by any assignee of such rights of Assignee and Lenders.
Assignor hereby agrees that if Assignee gives notice to Assignor of an
assignment of said rights, upon such notice the liability of Assignor to such
assignee shall be immediate and absolute.
11. An "Event of Default" hereunder shall occur upon the occurrence of any
act or omission constituting an Event of Default under the Loan Agreement.
12. Failure by Assignee to exercise any right which it may have hereunder
shall not be deemed a waiver thereof unless so agreed in writing by Assignee,
and the waiver by Assignee of any default hereunder shall not constitute a
continuing waiver or a waiver of any other default or of the same default on any
future occasion. No collection by Assignee of any Rents pursuant to this
Assignment shall constitute or result in a waiver of any default then existing
hereunder or under any of the other Loan Documents.
13. If any provision under this Assignment or the application thereof to
any entity, person or circumstance shall be invalid, illegal or unenforceable to
any extent, the remainder of this Assignment and the application of the
provisions hereof to other entities, persons or circumstances shall not be
affected thereby and shall be enforced to the fullest extent permitted by law.
14. This Assignment may not be amended, modified or otherwise changed
except by a written instrument duly executed by Assignor and Assignee.
15. This Assignment shall be in full force and effect continuously from the
date hereof to and until the payment, discharge, and performance of any and all
indebtedness and obligations evidenced by the Notes or secured or guaranteed by
any of the Loan Documents, and the release of the Deed of Trust shall, for all
purposes, automatically terminate this Assignment and render this Assignment
null and void and of no effect whatsoever.
16. All notices, demands, requests or other communications to be sent by
one party to the other hereunder or required by law shall be given and become
effective as provided in the Loan Agreement.
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17. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITATION, MATTERS OF CONSTRUCTION
AND PERFORMANCE OF THIS ASSIGNMENT AND THE OBLIGATIONS ARISING HEREUNDER, THIS
ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS (AS OPPOSED TO THE LAWS OF CONFLICTS) OF THE STATE OF ARIZONA APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
18. This Assignment may be executed in any number of counterparts, each of
which shall be effective only upon delivery and thereafter shall be deemed an
original, and all of which shall be taken to be one and the same instrument, for
the same effect as if all parties hereto had signed the same signature page. Any
signature page of this Assignment may be detached from any counterpart of this
Assignment without impairing the legal effect of any signatures thereon and may
be attached to another counterpart of this Assignment identical in form hereto
but having attached to it one or more additional signature pages.
19. In addition to, but not in lieu of, any other rights hereunder,
Assignee shall have the right to institute suit and obtain a protective or
mandatory injunction against Assignor to prevent a breach or default, or to
reinforce the observance, of the agreements, covenants, terms and conditions
contained herein, as well as the right to damages occasioned by any breach or
default by Assignor.
20. Assignor hereby covenants and agrees that Assignee shall be entitled to
all of the rights, remedies and benefits available by statute, at law, in equity
or as a matter of practice for the enforcement and perfection of the intents and
purposes hereof. Assignee shall, as a matter of absolute right, be entitled,
upon application to a court of applicable jurisdiction, and without notice to
Assignor except as required by applicable Law, to the appointment of a receiver
to obtain and secure the rights of Assignee hereunder and the benefits intended
to be provided to Assignee hereunder.
22. Each Lender, as defined in the Loan Agreement, is a third party
beneficiary of the obligations of Assignor and of the rights and benefits
accruing to Assignee hereunder.
[Signatures on following page]
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IN WITNESS WHEREOF, Assignor has executed this Assignment under seal as of
the day and year first above written.
ASSIGNOR:
KIERLAND CROSSING, LLC, a Delaware limited
liability company
By: Glimcher Kierland Crossing, LLC, a Delaware
limited liability company, its managing member
By: Glimcher Properties Limited Partnership,
a Delaware limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation, its general
partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Investment Officer
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ACKNOWLEDGMENT
--------------
STATE OF __________________ )
) ss.
COUNTY OF _________________ )
The foregoing ASSIGNMENT OF LEASES AND RENTS was acknowledged before me
this November __, 2007, by Xxxxxx X. Xxxxxxx, the Executive Vice President and
Chief Investment Officer of Glimcher Properties Corporation, a Delaware
corporation, as general partner of Glimcher Properties Limited Partnership, a
Delaware limited partnership, as managing member of Glimcher Kierland Crossing,
LLC, a Delaware limited liability company, as managing member of Kierland
Crossing, LLC, a Delaware limited liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal the day and year last above written.
----------------------------------------------
Notary Public in and for said County and State
My Commission Expires:
------------------------------
EXHIBIT A
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LEGAL DESCRIPTION
-----------------
PARCEL 1
A portion of the northwest quarter of Section 11 and the southwest quarter of
Section 2, Township 3 North, Range 4 East of the Gila and Salt River Base and
Meridian, Miricopa County, Arizona being described as follows:
COMMENCING at a brass cap in hand hole found at the northwest corner of said
Section 11, also being the point of intersection of the monumented centerlines
of Xxxxxxxx-Xxxxxx Loop and Scottsdale Road, from which a brass cap in hand hole
found at the intersection of the monumented centerlines of Scottsdale Road and
Xxxxxxxx Road bears South 01(degrees)08'00" West, of 1100.20 feet;
Thence South 89(degrees)40'34" East, along the monumented centerline of
Xxxxxxxx-Xxxxxx Road, a distance of 65.07 feet to brass cap in hand hole and a
point on a non-tangent curve, th radius point of which bears North
00(degrees)19'08" East, 2,000.00 feet;
Thence easterly, along the arc of said curve to the left and said monumented
centerline of Xxxxxxxx-Xxxxxx Loop, through a central angle of
16(degrees)55'21", an arc distance of 590.71 feet;
Thence South 16(degrees)36'13" East, 65.00 feet to a point on a line lying 65.00
feet south of and parallel to said monumented centerline of Xxxxxxxx-Xxxxxx Loop
and the TRUE POINT OF BEGINNING;
Thence continuing South 16(degrees)36'13" East, 40.25 feet to a point of
curvature having a radius of 150.00 feet;
Thence southerly along said curve to the right through a central angle of
17(degrees)44'55", an arc distance of 46.47 feet;
Thence South 01(degrees)08'42" West, 1000.15 feet to a point on a line lying
50.00 feet north of and parallel to the monumented centerline of Xxxxxxxx Road;
Continued...
PARCEL 1, Continued...
Thence North 88(degrees)51'18" West, along said line lying 50.00 feet north of
and parallel to the monumented centerline of Xxxxxxxx Road, 594.92 feet to a
point of curvature having a radius of 25.00 feet;
Thence northwesterly, along the arc of said curve to the right, through a
central angle of 89(degrees)59'18", an arc distance of 39.26 feet to a point on
a line lying 65.00 feet east of and parallel to the monumented centerline of
Scottsdale Road;
Thence North 01(degrees)08'00" East, along said line lying 65.00 feet east of
and parallel to the monumented centerline of Scottsdale Road, 941.49 feet to a
point of curvature having a radius of 20.00 feet;
Thence northeasterly, along the arc of said curve to the right, through a
central angle of 88(degrees)40'15", an arc distance of 30.95 feet to a point on
a line lying 65.00 feet south of and parallel to the monumented centerline of
Xxxxxxxx-Xxxxxx Loop and a point of reverse curvature having a radius of
2,065.00 feet;
Thence easterly, along the arc of said curve to the left and said line lying
65.00 feet south of and parallel to the monumented centerline of Xxxxxxxx-Xxxxxx
Loop, through a central angle of 16(degrees)24'28", an arc distance of 591.35
feet to the TRUE POINT OF BEGINNING.
Containing 14.526 acres, more or less.
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