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Exhibit 10.71
ASSUMPTION AGREEMENT
3/27/99
This instrument was prepared by and |
after recordation should be returned to: |
|
Aid Association for Lutherans |
0000 Xxxxx Xxxxxxx Xxxx |
Xxxxxxxx, XX 00000 |
Attn: Law Department |
|
|
__________________________________________SPACE ABOVE THIS LINE FOR
RECORDER'S USE
ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT ("Assumption") is made as of the 1st day of August,
1998 by and among WEBERSTOWN SHOPPING CENTER, A CALIFORNIA LIMITED PARTNERSHIP,
AND CENTER PROPERTIES, A HAWAII JOINT VENTURE (collectively, the "Assignor"),
WEBERSTOWN MALL LLC, A DELAWARE LIMITED LIABILITY COMPANY ("Assignee"), and AID
ASSOCIATION FOR LUTHERANS, A WISCONSIN CORPORATION ("Lender").
R E C I T A L XX X X X X X SC I T A L SI T A L S
A. Assignor and Lender have entered into that certain loan agreement
pursuant to which Lender agreed to loan to Assignor the principal sum
of Thirteen Million One Hundred Thousand and No/100 Dollars
($13,100,000.00) (the "Loan"). The Loan is evidenced by that certain
Secured Promissory Note dated October 13, 1994, executed by Assignor in
favor of Lender (the "Note"), and is secured by, among other things,
that certain Deed of Trust, Financing Statement, Fixture Filing and
Security Agreement (With Assignment of Rents) dated as of October 13,
1994, executed by Assignor in favor of Lender, and recorded on October
19, 1994, in the San Xxxxxxx County Recorder's Office as Instrument No.
94115527, as amended by that certain Amendment to Deed of Trust and
Documents of Record dated August 7, 1996 and recorded on August 8,
1996, in the San Xxxxxxx County Recorder's Office as Instrument No.
96081976 (collectively, the "Deed of Trust"). The Deed of Trust
encumbers certain real property owned by Assignor located at 0000
Xxxxxxx Xxxxxx, Xxxx xx Xxxxxxxx, Xxxxxxxxxx, as more particularly
described in EXHIBIT A attached hereto and incorporated herein by this
reference (the "Property").
B. The Loan also is secured by that certain Assignment of Rents and
Leases, dated as of October 13, 1994, from Assignor, as assignor, in
favor of Lender, as assignee, which was recorded on October 19, 1994,
in the San Xxxxxxx County Recorder's Office as Instrument No. 94115528
(the "Assignment of Rents"), pursuant to which Assignor assigned to
Lender all of Assignor's rights, interests and privileges under the
Leases (as
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defined in the Assignment of Rents).
C. Assignor, as debtor, executed that certain UCC-1 Financing Statement
dated October 13, 1994 in favor of Lender, as secured party, which was
filed with the California Secretary of State's Office on November 15,
1994 as Instrument No. 9433661459 (the "Financing Statement"),
covering, among other things, all right, title and interest of Assignor
in and to all tangible personal property owned by Assignor located on
or at the Property and all tangible and intangible personal property
and General Intangibles (as defined in the Financing Statement) owned
or acquired by Assignor and relating to, generated from, arising out
of, or incidental to, the ownership, development or operation of the
Property or the improvements thereon.
D. Assignor also executed and delivered to Lender that certain letter
waiving any rights Assignor may have under California Civil Code
Section 2954.10 (the "Waiver Letter").
E. The Note, Deed of Trust, Assignment of Rents, Financing Statement,
Waiver Letter and all other documents executed by Assignor and/or
Lender in connection with the Loan are incorporated herein by this
reference and shall be referred to hereafter collectively as the "Loan
Documents".
F. Concurrently with the execution of the Loan Documents, Xxxxxxxxx X.
Xxxxxxxx, as indemnitor, and Lender, as indemnitee, entered into that
certain Environmental Indemnity Agreement dated October 13, 1994 (the
"Indemnity Agreement"), pursuant to which, among other things,
indemnitor made certain representations, warranties, covenants and
indemnifications in favor of Lender relating to, among other things,
the environmental condition of the Property. The Indemnity Agreement is
incorporated herein by this reference.
G. Assignor and Assignee have executed that certain Contribution Agreement
dated June 16, 1998 (the "Contribution Agreement") pursuant to which
Assignor agrees to assign to Assignee the Property.
H. As a condition of Assignor transferring its interest in the Property to
Assignee pursuant to the Contribution Agreement, Assignee has agreed to
assume, perform and otherwise be bound by all of the terms, covenants,
conditions and obligations imposed upon Assignor under the Loan
Documents and under the Indemnity Agreement; provided, however, that
Assignor shall continue to be fully liable to Lender for all
obligations of Assignor under the Loan Documents and of indemnitor
under the Indemnity Agreement notwithstanding the assignment made
herein.
I. Lender is willing to consent to an assumption of the Loan Documents by
Assignee on the terms and conditions described herein; provided,
however, that Lender shall not be deemed to have released Assignor from
any of its liability to Lender under the Loan Documents in any way due
to this Assumption.
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NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are
incorporated herein by this reference, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. ASSIGNMENT OF INTEREST. Assignor hereby grants, bargains, sells,
conveys, transfers and assigns to Assignee, effective as of the date
hereof, all of its right, title and interest under the Loan Documents.
Notwithstanding the foregoing, Assignor shall not be released from any
liability of Assignor to Lender under the Loan Documents or of
indemnitor under the Indemnity Agreement in any way due to this
Assumption and Lender may proceed directly against either Assignor or
Assignee for any obligations relating to the Loan Documents and against
Assignor under the Indemnity Agreement as if this assignment had not
occurred. Lender and Assignor agree that Assignor's liability to Lender
under the Loan Documents or under the Indemnity Agreement shall not be
diminished in any way due to Lender's acceptance of Assignee's
performance under, or compliance with, the Loan Documents and the
Environmental Indemnity Agreement referred to in Section 3(a).
Assignor's liability to Lender under the Loan Documents shall be joint
and several with Assignee and shall not be that of a surety of
Assignee's obligations, except to the extent, if any, that such may be
required by law.
2. ASSIGNMENT OF OBLIGATIONS. Assignee hereby accepts such grant, transfer
and assignment and assumes and agrees to perform and be bound by all of
the terms, covenants, conditions and obligations of Assignor under the
Loan Documents.
3. CONSENT OF LENDER. Lender hereby consents to this Assumption provided,
that, on or before the closing of the purchase and sale of the
Property, as contemplated in the Contribution Agreement, the following
terms have been met:
(a) Assignee has duly executed and delivered to Lender an
Environmental Indemnity Agreement, an Authorization Agreement
for Preauthorized Payments, a California UCC-2 Amendment to
Financing Statement, or a new Financing Statement, if
necessary, a Form W-9, and a Certification of Non-Foreign
Status, all in a form acceptable to Lender;
(b) Lender has been provided by Assignee at Assignee's expense
such endorsements to the ALTA Lender's Policy of Title
Insurance issued to Lender on October 19, 1994 by Xxxxxxx
Title Guaranty Company (Policy No. CL-1530-206138/Order No.
36761) as may be requested by Lender (including, without
limitation, a modified form of CLTA Endorsement No. 111.4), or
a new policy if such endorsements are not available, to assure
the continued priority of the lien of the Deed of Trust and to
reflect the new owner of the Property;
(c) Assignee has procured the insurance policies required to be
maintained by Trustor pursuant to the Deed of Trust, which
insurance shall be approved by Lender in its sole discretion
as to amount, form, deductibles and insurer;
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(d) Assignee and Assignor have delivered to Lender such other
documents and items as Lender may request in Lender's sole
discretion to assure Assignor's continuing liability under the
Loan Documents and the Indemnity Agreement, Assignee's
assumption of the obligations of Assignor under the Loan
Documents and the Indemnity Agreement, and Lender's continued
priority of its security interest granted pursuant to the Loan
Documents;
(e) The delivery to Lender of (i) a copy of the resolution or
resolutions of the members of Assignee, satisfactory to Lender
in its sole and absolute discretion and certified by the
members of Assignee as being in full force and effect,
authorizing the borrowing provided for herein and the
execution, delivery and performance of this Assumption and any
other instrument or agreement required hereunder and attaching
certified copies of Assignee's Operating Agreement; (ii) a
certificate, signed by the members of Assignee, as to the
incumbency, and containing the specimen signature or
signatures, of the person or persons authorized to execute and
deliver this Assumption and any other instrument or agreement
required hereunder on behalf of Assignee; and (iii) a copy of
Assignee's Certificate of Good Standing issued by the State of
California; and
(f) The representations and warranties set forth herein and in the
Loan Documents shall be true, correct and complete.
4. WAIVER OF RIGHTS. Assignor and Assignee waive any rights, if any, to
assert any defenses, rights or protections that either may have, if
any, under California Code of Civil Procedure Sections 726, 580a, 580b
or 580d.
5. COSTS AND FEES. Assignee agrees to pay to Lender before closing Five
Thousand and No/100 Dollars ($5,000.00) as a processing fee for this
transaction and to pay all transfer taxes, recording fees and the fees
and costs of special counsel of Lender. Assignee shall pay any fees and
costs of the broker or other similar party for services rendered in
this transaction.
6. ASSIGNOR'S INDEMNIFICATION. Assignor hereby agrees to indemnify, defend
and hold each of Assignee and Lender harmless from all claims,
liabilities, damages, losses, demands, judgments, costs or expenses
(including actual attorneys' fees and costs) made against or suffered
by Assignee or Lender, as the case may be, which relate to any
obligations of Assignor accruing, to be performed or arising out of
events occurring prior to the date hereof in respect of the Loan
Documents or the Property.
7. ASSIGNEE'S INDEMNIFICATION. Assignee hereby agrees to indemnify, defend
and hold each of Assignor and Lender harmless from all claims,
liabilities, damages, losses, demands, judgments, costs or expenses
(including actual attorneys' fees and costs) made against or suffered
by Assignor or Lender, as the case may be, which relate to any
obligations of Assignee, arising out of events occurring on or after
the date hereof in respect of the Loan Documents or the Property.
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8. ASSIGNOR'S REPRESENTATIONS. Assignor represents and warrants to and for
the benefit of Assignee and Lender that as of the date hereof:
(a) The execution, delivery and performance of this Assumption has
been duly authorized by the governing authorities of Assignee
and Assignor and no other action of Assignee, Assignor or any
other party is requisite to the execution, delivery and
performance of this Assumption;
(b) The Loan Documents and Indemnity Agreement are in full force
and effect;
(c) Neither the Loan Documents nor the Indemnity Agreement have
been amended, modified, supplemented or assigned except as set
forth herein;
(d) There are no defaults nor any events which, with the passage
of time or notice, shall constitute a default by Assignor
under the Loan Document nor any breach of any obligation of
Assignor under the Indemnity Agreement;
(e) Assignor has no defense as to any of its obligations under the
Loan Documents or the Indemnity Agreement; and
(f) The representations and warranties contained in the Loan
Agreement and the other Loan Documents are true, correct and
complete as of the date hereof.
9. ASSIGNEE'S REPRESENTATIONS. Assignee represents and warrants to and for
the benefit of Assignor and Lender that:
(a) Assignee has delivered to Lender a true, correct and complete
copy of its Operating Agreement. The Operating Agreement has
not been modified, amended or otherwise changed since the date
thereof and all documents required to be filed in connection
with the conduct of Assignee's business have been filed in the
appropriate offices;
(b) All statements, representations, and warranties contained in
any writing previously delivered by Assignee to Lender in
connection with the transfer of the Loan are true and correct
in all material respects, and all obligations of Assignee and
all conditions to the making of the transfer of the Loan have
been performed and satisfied;
(c) There have been no material adverse changes, financial or
otherwise, in the condition of Assignee from that submitted to
Lender by Assignee or in any supporting data submitted
therewith, and all of the information contained therein is
true and correct;
(d) There is no claim, investigation, litigation or condemnation
proceeding pending or
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threatened against Assignee except as heretofore disclosed in
writing to Lender;
(e) There is no judgment, decree, or order of any court or
governmental or administrative agency or instrumentality which
has been issued against Assignee and which has or may have any
material effect on the Property or on the business of
Assignee, except as have been heretofore disclosed to Lender
in writing;
(f) This Assumption and all other documents required to be
executed by Assignee pursuant to the terms hereof have been
duly authorized, executed and delivered and the Assumption and
Loan Documents constitute valid and binding obligations of
Assignee enforceable in accordance with their respective
terms. No approval, consent, order or authorization of any
governmental authority and no designation, registration,
declaration or filing with any governmental entity is required
in connection with the execution and delivery by Assignee of
the Assumption or the assumption of the Loan Documents; and
(g) The assumption of the Loan Documents will not violate or
contravene any agreement, indenture, or instrument to which
Assignee is a party or by which it or the Property may be
bound, or be in conflict with, result in a breach of, or
constitute a default under any such agreement, indenture, or
other instrument, or result in the creation or imposition of
any lien, charge, or encumbrance of any nature whatsoever upon
any of the property or assets of Assignee except as
contemplated by the provisions of the Loan Documents, and no
action or approval with respect thereto by any third person is
required.
10. NOTICES. Whenever any party desires to give or serve any notice, demand
or request with respect to this Assumption, each such communication
shall be in writing and shall be effective only when it is delivered by
personal service or shall be effective three (3) days after deposit in
the United States mail, mailed by certified mail, postage pre-paid,
return receipt requested, to the parties addressed as follows:
If to Assignor: Weberstown Shopping Center
c/o The Hapsmith Company
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
If to Assignee: Weberstown Mall LLC
c/o Glimcher Properties Limited Partnership
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to Lender: Aid Association for Lutherans
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attention: Law Department
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11. FURTHER ASSURANCES. Assignor shall execute, acknowledge, and deliver
all such instruments, and take all such action as may be necessary to
further assure to Assignee and Lender the rights assigned hereby and
the full benefits hereof and to preserve and protect this Assumption
and all of the rights, powers, and remedies of Assignee provided for
herein.
12. ASSIGNEE'S REVIEW OF DOCUMENTS. Assignee acknowledges that it has
reviewed and approved the Loan Documents.
13. FUTURE TRANSFERS OR ASSIGNMENTS. Assignor and Assignee acknowledge that
Lender's consent to this Assumption does not constitute a consent by
Lender to any future transfer, conveyance, or assignment of any right,
title, or interest under the Loan Documents and such transfers,
conveyances and assignments are subject to the provisions of the Loan
Documents.
14. VALIDITY OF ASSIGNMENT. Assignor and Assignee acknowledges that this
Assumption shall have no force, effect or validity unless Assignor and
Assignee consummate the purchase and sale of the Property as
contemplated under the Contribution Agreement.
15. SUCCESSOR AND ASSIGNS. This Assumption shall be binding upon and inure
to the benefit of the successors and assigns of the respective parties
hereto.
16. GOVERNING LAW. This Assumption shall be governed by and construed in
accordance with the laws of the same state as the Loan Documents.
17. ATTORNEYS' FEES. In the event of the bringing of any action or suit by
a party hereto against another party hereto by reason of any breach of
any of the covenants, conditions, agreements, or provisions on the part
of the other party arising out of this Assumption, the prevailing party
shall be entitled to have and recover of and from the other party all
costs and expenses of the action or suit, including attorneys' fees and
court costs.
18. COUNTERPARTS. This Assumption may be executed in several counterparts,
each of which shall be an original, but all of which taken together
shall constitute one and the same instrument.
19. CAPTIONS, GENDER, AND NUMBER. Any section, paragraph, title or caption
contained in this Assumption is for convenience only and shall not be
deemed a part of this Assumption. As used in this Assumption, the
masculine, feminine, or neuter gender, and the singular or plural
number shall each be deemed to include the others whenever the context
so indicates.
IN WITNESS WHEREOF, this Assumption is executed by the parties as of the date
first above written.
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ASSIGNOR:
WEBERSTOWN SHOPPING CENTER,
A CALIFORNIA LIMITED PARTNERSHIP
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxxxxx X. Xxxxxxxx, General Partner
CENTER PROPERTIES,
A HAWAII GENERAL PARTNERSHIP
By: Fremont Hub Shopping Center,
a California partnership, General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
General Partner
By: Fremont Hub Shopping Center B
Second Unit, a California limited
Partnership, General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
General Partner
By: Fremont Associates,
a California limited partnership
General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
General Partner
(SIGNATURES CONTINUED ON NEXT PAGE)
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(SIGNATURES CONTINUED FROM PREVIOUS PAGE)
By: Hapsmith-Fremont,
a California limited partnership,
General Partner
By: /S/ XXXXXXXXX X. XXXXXXXX
-------------------------------
Xxxxxxxxx X. Xxxxxxxx
General Partner
By: The Xxxxxx Family Trust Partnership,
a California limited partnership,
General Partner
By: Hapsmith Development Corporation,
a California corporation, General
Partner
By: /S/ XXXXXXXXX X. XXXXXXXX
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Xxxxxxxxx X. Xxxxxxxx
Chairman
ASSIGNEE:
WEBERSTOWN MALL LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: ____________________________________
Name:
Title:
LENDER:
AID ASSOCIATION FOR LUTHERANS, A
WISCONSIN CORPORATION
By: /S/ XXXXX X. XXXXXX
------------------------------------
Xxxxx X. Xxxxxx
Vice President -
Mortgages and Real Estate
By: /S/ XXXXX XXXXX
------------------------------------
Xxxxx Xxxxx
Assistant Secretary
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STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On July 29, 1998, before me, Xxxx X. Xxxxxxxx, personally appeared Xxxxxxxxx X.
Xxxxxxxx, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument and
that by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
(SEAL) --------------------------------
Notary Public
My commission expires _____________.
My Commission Expires: June 23, 2002.
STATE OF )
) ss.
COUNTY OF )
On ____________, 1998, before me, ___________________, personally appeared
________________________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and that by his signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
(SEAL) --------------------------
Notary Public
My commission expires _____________.
My Commission Expires: ________________.
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STATE OF WISCONSIN )
) ss.
COUNTY OF OUTAGAMIE )
On July 30, 1998, before me, Xxxx X. Xxxxxxx, personally appeared Xxxxx X.
Xxxxxx and Xxxxx Xxxxx, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and that by their signatures on the instrument the persons, or
the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
(SEAL) ----------------------------------
Notary Public
My commission expires July 22, 2001.
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EXHIBIT A
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