EXHIBIT 10.114
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS
THIS ASSIGNMENT AND ASSUMPTION MEMBERSHIP INTERESTS (this "Assignment") is
entered into as of the 9th day of October, 2007 ("Effective Date"), between THOR
URBAN OPERATING FUND, L.P., a Delaware limited partnership ("Assignor"), with an
office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; and GLICHMER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership ("Assignee"), with an office at 000
Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, Assignor is the owner and holder of a one hundred (100%) percent
membership interest (the "Membership Interest") in Thor MS, LLC and Xxxx Xxxxxxx
Square LLC, each a Delaware limited liability company (collectively, the
"Company");
WHEREAS, pursuant to the terms of that certain Membership Interest Purchase
and Sale Agreement dated as of July 19, 2007 between Assignor and Assignee, as
amended by an Amendment to Membership Interest Purchase and Sale Agreement dated
August 6, 2007 (collectively, the "Purchase Agreement"), Assignor has agreed to
sell and Assignee has agreed to purchase the Membership Interest and to execute
this Assignment in connection therewith.
NOW, THEREFORE, for ten ($10.00) dollars and other good and valuable
consideration paid by Assignee to Assignor, Assignor and Assignee hereby agree
as follows:
1. Assignment. Assignor hereby sells, assigns, transfers and conveys to
Assignee the Membership Interest.
2. Assumption. Assignee hereby accepts from Assignor the Membership
Interest, and assumes all of the obligations and liabilities of Assignor, as the
holder of the Membership Interest, accruing from and after the date hereof.
3. Adoption of Operating Agreement. Assignee hereby accepts and adopts all
of the terms and conditions of the operating agreement of the Company from and
after the date hereof, and agrees to be bound by all the terms, articles and
conditions thereof.
4. Withdrawal. Assignor hereby withdraws as a member from the Company (the
"Withdrawal"). The Withdrawal shall be effective as of the date hereof, without
the need for execution of any additional documentation.
5. Effective Date. This Assignment is effective as of the date hereof, and
from and after the date hereof that portion of the net profits or net losses and
cash flow of the Company allocable to the Membership Interest shall be credited,
charged or distributed, as the case may be, to Assignee and not to Assignor.
6. Indemnification of Assignee. The Assignor shall indemnify, defend and
hold harmless Assignee, its agents, employees, officers, directors, managers,
members, legal representatives, successors and assigns from and against any
liability, loss, cost or expense (including but not limited to reasonable
attorney's fees and expenses) incurred by Assignee as a result of such
Assignor's failure to perform any of its obligations as holder of the Membership
Interest to the extent that such obligations accrued prior to the date hereof;
provided, however, that Assignor's obligations under this Paragraph 6 shall not
exceed Seller's Maximum Liability (as defined in Section 17 of the Purchase
Agreement).
7. Indemnification of Assignor. Assignee shall indemnity, defend and hold
harmless Assignor, its agents, employees, officers, directors, managers,
members, legal representatives, successors and assigns from and against any
liability, loss, cost or expense (including but not limited to reasonable
attorney's fees and expenses) incurred by Assignor as a result of Assignee's
failure to perform any of its obligations as holder of the Membership Interest
to the extent that such obligations accrue on or after the date hereof.
8. Delinquent Rents. Notwithstanding anything to the contrary in this
Assignment, (i) Assignor hereby reserves the right to collect and retain
delinquent rentals as described on Schedule A; and (ii) the liability of
Assignor hereunder shall be limited as set forth in the Purchase Agreement,
including, without limitation, Sections 17 and 23(q) of the Purchase Agreement.
9. Miscellaneous. This Assignment shall inure to the benefit of and be
binding upon the parties hereto and their respective legal or personal
representatives, heirs, executors, administrators, successors, and assigns. No
third party shall have the benefit of any of the provisions of this Assignment
nor is this Assignment made with the intent that any person or entity other than
Assignor or Assignee rely hereon. If Assignor or Assignee resorts to a court of
law or equity in order to enforce the provisions of this Assignment as against
the other, the non-prevailing party shall pay the reasonable attorneys' fees and
expenses of the prevailing party. No modification, waiver, amendment, discharge
or change of this Assignment shall be valid unless the same is in writing and
signed by the party against which the enforcement of such modification, waiver,
amendment, discharge or change is or may be sought. This Assignment shall be
construed and enforced in accordance with the laws of the State of Delaware.
This Assignment may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed an original, but all of which
shall together constitute one and the same agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
THOR URBAN OPERATING FUND, L.P.,
a Delaware limited partnership,
its sole member
By: Thor Operating Fund L.L.C., a
Delaware limited liability company,
its general partner
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Authorized Signatory
ASSIGNEE:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation, sole general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Executive Vice President
