Exhibit 10.68
XX XXXXXXXX XX, LLC, AS ASSIGNOR
(Borrower)
TO
XXXXXX BROTHERS BANK, FSB, AS ASSIGNEE
(Lender)
ASSIGNMENT
OF LEASES AND RENTS
Dated: As of November 20, 2006
Location: Eastland Mall
Columbus, Ohio
PREPARED BY AND UPON RECORDATION RETURN TO:
Stroock & Stroock & Xxxxx, LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") made as of the 20th
day of November, 2006, by XX XXXXXXXX XX, LLC, a Delaware limited liability
company, having an address at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000
("Borrower") to XXXXXX BROTHERS BANK, FSB, a federal stock savings bank, having
an address at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000
("Lender").
W I T N E S S E T H:
WHEREAS, this Assignment is given to secure a loan in the principal sum of
FORTY-THREE MILLION AND 00/100 DOLLARS ($43,000,000.00) (the "Loan") or so much
thereof as may be advanced by Lender to the Borrower pursuant to that certain
Loan Agreement dated as of the date hereof (the "Loan Agreement") and evidenced
by that certain Promissory Note dated the date hereof made by Borrower to Lender
(the "Note"); and
WHEREAS, Borrower desires to secure the payment of the Debt (as defined in
the Loan Agreement) and the performance of all of its obligations under the
Note, the Loan Agreement and the other Loan Documents.
NOW THEREFORE, in consideration of the making of the Loan by Lender and the
covenants, agreements, representations and warranties set forth in this
Assignment:
ARTICLE 1 - ASSIGNMENT
Section 1.1 PROPERTY ASSIGNED. Borrower hereby absolutely and
unconditionally assigns and grants to Lender the following property, rights,
interests and estates, now owned, or hereafter acquired by Borrower:
(a) LEASES. All existing and future leases, subleases, licenses,
franchises, concessions or grants of other possessory interests, tenancies, and
any other agreements affecting the use, possession, enjoyment, or occupancy of
all or any part of that certain lot or piece of land, more particularly
described in Exhibit A annexed hereto and made a part hereof, together with the
buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter located
thereon (collectively, the "Property") and the right, title and interest of
Borrower, its successors and assigns, therein and thereunder.
(b) OTHER LEASES AND AGREEMENTS. All other leases and other agreements,
whether or not in writing, affecting the use, enjoyment or occupancy of the
Property or any portion thereof now or hereafter made, whether made before or
after the filing by or against Borrower of any petition for relief under 11
U.S.C. ss.101 et seq., as the same may be amended from time to time (the
"Bankruptcy Code") together with any extension, renewal or replacement of the
same, this Assignment of other present and future leases and present and future
agreements being effective without further or supplemental assignment. The
leases described in Subsection 1.1(a) and the leases and other agreements
described in this Subsection 1.1(b), together with all other present and future
leases and present and future agreements and any extension or renewal of the
same are collectively referred to as the "Leases".
(c) RENTS. All rents, additional rents, revenues, income, issues and
profits arising from the Leases and renewals and replacements thereof and any
cash or security deposited in connection therewith and together with all rents,
revenues, income, issues and profits (including all oil and gas or other mineral
royalties and bonuses) from the use, enjoyment and occupancy of the Property
whether paid or accruing before or after the filing by or against Borrower of
any petition for relief under the Bankruptcy Code (collectively, the "Rents").
(d) BANKRUPTCY CLAIMS. All of Borrower's claims and rights (the "Bankruptcy
Claims") to the payment of damages arising from any rejection by a lessee of any
Lease under the Bankruptcy Code.
(e) LEASE GUARANTIES. All of Borrower's right, title and interest in and
claims under any and all lease guaranties, letters of credit and any other
credit support (individually, a "Lease Guaranty", collectively, the "Lease
Guaranties") given by any guarantor in connection with any of the Leases or
leasing commissions (individually, a "Lease Guarantor", collectively, the "Lease
Guarantors") to Borrower.
(f) PROCEEDS. All proceeds from the sale or other disposition of the
Leases, the Rents, the Lease Guaranties and the Bankruptcy Claims.
(g) OTHER. All rights, powers, privileges, options and other benefits of
Borrower as lessor under the Leases and beneficiary under the Lease Guaranties,
including without limitation the immediate and continuing right to make claim
for, receive, collect and receipt for all Rents payable or receivable under the
Leases and all sums payable under the Lease Guaranties or pursuant thereto (and
to apply the same to the payment of the Debt or the Other Obligations), and to
do all other things which Borrower or any lessor is or may become entitled to do
under the Leases or the Lease Guaranties.
(h) ENTRY. The right, at Lender's option, upon revocation of the license
granted herein, to enter upon the Property in person, by agent or by
court-appointed receiver, to collect the Rents.
(i) POWER OF ATTORNEY. Borrower's irrevocable power of attorney, coupled
with an interest, to take any and all of the actions set forth in Section 3.1 of
this Assignment and any or all other actions designated by Lender for the proper
management and preservation of the Property.
(j) OTHER RIGHTS AND AGREEMENTS. Any and all other rights of Borrower in
and to the items set forth in subsections (a) through (i) above, and all
amendments, modifications, replacements, renewals and substitutions thereof.
ARTICLE 2 - TERMS OF ASSIGNMENT
Section 2.1 PRESENT ASSIGNMENT AND LICENSE BACK. It is intended by Borrower
that this Assignment constitute a present, absolute assignment of the Leases,
Rents, Lease Guaranties and Bankruptcy Claims, and not an assignment for
additional security only. Nevertheless, subject to the terms of this Section
2.1, Lender grants to Borrower a revocable license to collect, receive, use and
enjoy the Rents and other sums due under the Lease Guaranties. Borrower shall
hold the Rents and all sums received pursuant to any Lease Guaranty, or a
portion thereof sufficient to discharge all current sums due on the Debt, in
trust for the benefit of Lender for use in the payment of such sums.
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Section 2.2 NOTICE TO LESSEES. Borrower hereby authorizes and directs the
lessees named in the Leases or any other future lessees or occupants of the
Property and all Lease Guarantors to pay over to Lender or to such other party
as Lender directs all Rents and all sums due under any Lease Guaranties upon
receipt from Lender of written notice to the effect that Lender is then the
holder of this Assignment and that an Event of Default (as defined in the Loan
Agreement) exists, and to continue so to do until otherwise notified by Lender.
Section 2.3 INCORPORATION BY REFERENCE. All representations, warranties,
covenants, conditions and agreements contained in the Loan Agreement and the
other Loan Documents as same may be modified, renewed, substituted or extended
are hereby made a part of this Assignment to the same extent and with the same
force as if fully set forth herein.
ARTICLE 3 - REMEDIES
Section 3.1 REMEDIES OF LENDER. Upon or at any time after the occurrence of
an Event of Default, the license granted to Borrower in Section 2.1 of this
Assignment shall automatically be revoked, and Lender shall immediately be
entitled to possession of all Rents and sums due under any Lease Guaranties,
whether or not Lender enters upon or takes control of the Property. In addition,
Lender may, at its option, without waiving such Event of Default, without regard
to the adequacy of the security for the Debt, either in person or by agent,
nominee or attorney, with or without bringing any action or proceeding, or by a
receiver appointed by a court, dispossess Borrower and its agents and servants
from the Property, without liability for trespass, damages or otherwise and
exclude Borrower and its agents or servants wholly therefrom, and take
possession of the Property and all books, records and accounts relating thereto
and have, hold, manage, lease and operate the Property on such terms and for
such period of time as Lender may deem proper and either with or without taking
possession of the Property in its own name, demand, xxx for or otherwise collect
and receive all Rents and sums due under all Lease Guaranties, including those
past due and unpaid with full power to make from time to time all alterations,
renovations, repairs or replacements thereto or thereof as Lender may deem
proper and may apply the Rents and sums received pursuant to any Lease
Guaranties to the payment of the following in such order and proportion as
Lender in its sole discretion may determine, any law, custom or use to the
contrary notwithstanding: (a) all expenses of managing and securing the
Property, including, without being limited thereto, the salaries, fees and wages
of a managing agent and such other employees or agents as Lender may deem
necessary or desirable and all expenses of operating and maintaining the
Property, including, without being limited thereto, all taxes, charges, claims,
assessments, water charges, sewer rents and any other liens, and premiums for
all insurance which Lender may deem necessary or desirable, and the cost of all
alterations, renovations, repairs or replacements, and all expenses incident to
taking and retaining possession of the Property; and (b) the Debt, together with
all costs and reasonable attorneys' fees. In addition, upon the occurrence of an
Event of Default, Lender, at its option, may (1) complete any construction on
the Property in such manner and form as Lender deems advisable, (2) exercise all
rights and powers of Borrower, including, without limitation, the right to
negotiate, execute, cancel, enforce or modify Leases, obtain and evict tenants,
and demand, xxx for, collect and receive all Rents from the Property and all
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sums due under any Lease Guaranties, (3) either require Borrower to pay monthly
in advance to Lender, or any receiver appointed to collect the Rents, the fair
and reasonable rental value for the use and occupancy of such part of the
Property as may be in possession of Borrower or (4) require Borrower to vacate
and surrender possession of the Property to Lender or to such receiver and, in
default thereof, Borrower may be evicted by summary proceedings or otherwise.
Section 3.2 OTHER REMEDIES. Nothing contained in this Assignment and no act
done or omitted by Lender pursuant to the power and rights granted to Lender
hereunder shall be deemed to be a waiver by Lender of its rights and remedies
under the Loan Agreement, the Note, or the other Loan Documents and this
Assignment is made and accepted without prejudice to any of the rights and
remedies possessed by Lender under the terms thereof. The right of Lender to
collect the Debt and to enforce any other security therefor held by it may be
exercised by Lender either prior to, simultaneously with, or subsequent to any
action taken by it hereunder. Borrower hereby absolutely, unconditionally and
irrevocably waives any and all rights to assert any setoff, counterclaim or
crossclaim of any nature whatsoever with respect to the obligations of Borrower
under this Assignment, the Loan Agreement, the Note, the other Loan Documents or
otherwise with respect to the Loan in any action or proceeding brought by Lender
to collect same, or any portion thereof, or to enforce and realize upon the lien
and security interest created by this Assignment, the Loan Agreement, the Note,
or any of the other Loan Documents (provided, however, that the foregoing shall
not be deemed a waiver of Borrower's right to assert any compulsory counterclaim
if such counterclaim is compelled under local law or rule of procedure, nor
shall the foregoing be deemed a waiver of Borrower's right to assert any claim
which would constitute a defense, setoff, counterclaim or crossclaim of any
nature whatsoever against Lender in any separate action or proceeding).
Section 3.3 OTHER SECURITY. Lender may take or release other security for
the payment of the Debt, may release any party primarily or secondarily liable
therefor and may apply any other security held by it to the reduction or
satisfaction of the Debt without prejudice to any of its rights under this
Assignment.
Section 3.4 NON-WAIVER. The exercise by Lender of the option granted it in
Section 3.1 of this Assignment and the collection of the Rents and sums due
under the Lease Guaranties and the application thereof as herein provided shall
not be considered a waiver of any default by Borrower under the Note, the Loan
Agreement, the Leases, this Assignment or the other Loan Documents. The failure
of Lender to insist upon strict performance of any term hereof shall not be
deemed to be a waiver of any term of this Assignment. Borrower shall not be
relieved of Borrower's obligations hereunder by reason of (a) the failure of
Lender to comply with any request of Borrower or any other party to take any
action to enforce any of the provisions hereof or of the Loan Agreement, the
Note or the other Loan Documents, (b) the release regardless of consideration,
of the whole or any part of the Property, or (c) any agreement or stipulation by
Lender extending the time of payment or otherwise modifying or supplementing the
terms of this Assignment, the Loan Agreement, the Note, or the other Loan
Documents. Lender may resort for the payment of the Debt to any other security
held by Lender in such order and manner as Lender, in its discretion, may elect.
Lender may take any action to recover the Debt, or any portion thereof, or to
enforce any covenant hereof without prejudice to the right of Lender thereafter
to enforce its rights under this Assignment. The rights of Lender under this
Assignment shall be separate, distinct and cumulative and none shall be given
effect to the exclusion of the others. No act of Lender shall be construed as an
election to proceed under any one provision herein to the exclusion of any other
provision.
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Section 3.5 BANKRUPTCY. a) Upon or at any time after the occurrence of an
Event of Default, Lender shall have the right to proceed in its own name or in
the name of Borrower in respect of any claim, suit, action or proceeding
relating to the rejection of any Lease, including, without limitation, the right
to file and prosecute, to the exclusion of Borrower, any proofs of claim,
complaints, motions, applications, notices and other documents, in any case in
respect of the lessee under such Lease under the Bankruptcy Code.
(b) If there shall be filed by or against Borrower a petition under the
Bankruptcy Code, and Borrower, as lessor under any Lease, shall determine to
reject such Lease pursuant to Section 365(a) of the Bankruptcy Code, then
Borrower shall give Lender not less than ten (10) days' prior notice of the date
on which Borrower shall apply to the bankruptcy court for authority to reject
the Lease. Lender shall have the right, but not the obligation, to serve upon
Borrower within such ten-day period a notice stating that (i) Lender demands
that Borrower assume and assign the Lease to Lender pursuant to Section 365 of
the Bankruptcy Code and (ii) Lender covenants to cure or provide adequate
assurance of future performance under the Lease. If Lender serves upon Borrower
the notice described in the preceding sentence, Borrower shall not seek to
reject the Lease and shall comply with the demand provided for in clause (i) of
the preceding sentence within thirty (30) days after the notice shall have been
given, subject to the performance by Lender of the covenant provided for in
clause (ii) of the preceding sentence.
ARTICLE 4 - NO LIABILITY, FURTHER ASSURANCES
Section 4.1 NO LIABILITY OF LENDER. This Assignment shall not be construed
to bind Lender to the performance of any of the covenants, conditions or
provisions contained in any Lease or Lease Guaranty or otherwise impose any
obligation upon Lender. Lender shall not be liable for any loss sustained by
Borrower resulting from Lender's failure to let the Property after an Event of
Default or from any other act or omission of Lender in managing the Property
after an Event of Default unless such loss is caused by the willful misconduct
and bad faith of Lender. Lender shall not be obligated to perform or discharge
any obligation, duty or liability under the Leases or any Lease Guaranties or
under or by reason of this Assignment and Borrower shall, and hereby agrees to,
indemnify Lender for, and to hold Lender harmless from, any and all liability,
loss or damage which may or might be incurred under the Leases, any Lease
Guaranties or under or by reason of this Assignment and from any and all claims
and demands whatsoever, including the defense of any such claims or demands
which may be asserted against Lender by reason of any alleged obligations and
undertakings on its part to perform or discharge any of the terms, covenants or
agreements contained in the Leases or any Lease Guaranties. Should Lender incur
any such liability, the amount thereof, including costs, expenses and reasonable
attorneys' fees, shall be secured by this Assignment and by the Mortgage
encumbering the Property and the other Loan Documents and Borrower shall
reimburse Lender therefor immediately upon demand and upon the failure of
Borrower so to do Lender may, at its option, declare all sums secured by this
Assignment and by the Mortgage encumbering the Property and the other Loan
Documents immediately due and payable. This Assignment shall not operate to
place any obligation or liability for the control, care, management or repair of
the Property upon Lender, nor for the carrying out of any of the terms and
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conditions of the Leases or any Lease Guaranties; nor shall it operate to make
Lender responsible or liable for any waste committed on the Property by the
tenants or any other parties, or for any dangerous or defective condition of the
Property including, without limitation, the presence of any Hazardous Substances
(as defined in the Mortgage), or for any negligence in the management, upkeep,
repair or control of the Property resulting in loss or injury or death to any
tenant, licensee, employee or stranger.
Section 4.2 NO MORTGAGEE IN POSSESSION. Nothing herein contained shall be
construed as constituting Lender a "mortgagee in possession" in the absence of
the taking of actual possession of the Property by Lender. In the exercise of
the powers herein granted Lender, no liability shall be asserted or enforced
against Lender, all such liability being expressly waived and released by
Borrower.
Section 4.3 FURTHER ASSURANCES. Borrower will, at the cost of Borrower, and
without expense to Lender, do, execute, acknowledge and deliver all and every
such further acts, conveyances, assignments, notices of assignments, transfers
and assurances as Lender shall, from time to time, require for the better
assuring, conveying, assigning, transferring and confirming unto Lender the
property and rights hereby assigned or intended now or hereafter so to be, or
which Borrower may be or may hereafter become bound to convey or assign to
Lender, or for carrying out the intention or facilitating the performance of the
terms of this Assignment or for filing, registering or recording this Assignment
and, on demand, will execute and deliver and hereby authorizes Lender to execute
in the name of Borrower to the extent Lender may lawfully do so, one or more
financing statements, chattel mortgages or comparable security instruments, to
evidence more effectively the lien and security interest hereof in and upon the
Leases.
ARTICLE 5 - MISCELLANEOUS PROVISIONS
Section 5.1 CONFLICT OF TERMS. In case of any conflict between the terms of
this Assignment and the terms of the Loan Agreement, the terms of the Loan
Agreement shall prevail.
Section 5.2 NO ORAL CHANGE. This Assignment and any provisions hereof may
not be modified, amended, waived, extended, changed, discharged or terminated
orally, or by any act or failure to act on the part of Borrower or Lender, but
only by an agreement in writing signed by the party against whom the enforcement
of any modification, amendment, waiver, extension, change, discharge or
termination is sought.
Section 5.3 GENERAL DEFINITIONS. All capitalized terms not defined herein
shall have the respective meanings set forth in the Loan Agreement. Unless the
context clearly indicates a contrary intent or unless otherwise specifically
provided herein, words used in this Assignment may be used interchangeably in
singular or plural form and the word "Borrower" shall mean "each Borrower and
any subsequent owner or owners of the Property or any part thereof or interest
therein," the word "Lender" shall mean "Lender and any subsequent holder of the
Note, the word "Note" shall mean "the Note and any other evidence of
indebtedness secured by the Loan Agreement, the word "Property" shall include
any portion of the Property and any interest therein, the phrases "attorneys'
fees", "legal fees" and "counsel fees shall include any and all attorney's,
paralegal and law clerk fees and disbursements, including, but not limited to,
6
fees and disbursements at the pre-trial, trial and appellate levels incurred or
paid by Lender in protecting its interest in the Property, the Leases and the
Rents and enforcing its rights hereunder; whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
Section 5.4 INAPPLICABLE PROVISIONS. If any term, covenant or condition of
this Assignment is held to be invalid, illegal or unenforceable in any respect,
this Assignment shall be construed without such provision.
Section 5.5 GOVERNING LAW. (A) THIS ASSIGNMENT WAS NEGOTIATED IN THE STATE
OF NEW YORK, AND MADE BY BORROWER AND ACCEPTED BY LENDER IN THE STATE OF NEW
YORK, AND THE PROCEEDS OF THE NOTE SECURED HEREBY WERE DISBURSED FROM THE STATE
OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS ASSIGNMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF
THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE
CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS
CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS WITH RESPECT TO
THE PROPERTY SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE
STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST
EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK
SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS
AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST
EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES
ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
ASSIGNMENT AND THE NOTE, AND THIS ASSIGNMENT AND THE NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING
OUT OF OR RELATING TO THIS ASSIGNMENT MAY AT LENDER'S OPTION BE INSTITUTED IN
ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXXX XX XXX XXXX, PURSUANT
TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND BORROWER WAIVES
ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM
NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR
PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
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Corporation Service Company
00 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000-0000
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
Section 5.6 TERMINATION OF ASSIGNMENT. Upon payment in full of the Debt,
this Assignment shall become and be void and of no effect.
Section 5.7 NOTICES. All notices or other written communications hereunder
shall be delivered in accordance with Section 10.6 of the Loan Agreement.
Section 5.8 WAIVER OF TRIAL BY JURY. BORROWER HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE LOAN EVIDENCED BY THE NOTE, THE APPLICATION FOR THE LOAN
EVIDENCED BY THE NOTE, THIS ASSIGNMENT, THE NOTE, OR THE OTHER LOAN DOCUMENTS OR
ANY ACTS OR OMISSIONS OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN
CONNECTION THEREWITH.
Section 5.9 EXCULPATION. The provisions of Section 9.4 of the Loan
Agreement are hereby incorporated by reference into this Assignment to the same
extent and with the same force as if fully set forth herein.
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Section 5.10 SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon
and inure to the benefit of Borrower and Lender and their respective successors
and assigns forever.
Section 5.11 HEADINGS, ETC. The headings and captions of various paragraphs
of this Assignment are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Borrower has executed this instrument the day and year
first above written.
BORROWER:
XX XXXXXXXX XX, LLC,
a Delaware limited liability company
By: Glimcher Properties Limited Partnership,
a Delaware limited partnership,
its sole equity member
By: Glimcher Properties Corporation,
a Delaware corporation,
its sole general partner
By: __________________________
Xxxxxx X. Xxxxxxx
Executive Vice President
ACKNOWLEDGEMENT
STATE OF _____________ )
)ss:
COUNTY OF ____________ )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxx X. Xxxxxxx, as executive vice president of Glimcher Properties
Corporation, a Delaware corporation, as sole general partner of Glimcher
Properties Limited Partnership, a Delaware limited partnership, as sole equity
member of XX XXXXXXXX XX, LLC, a Delaware limited liability company, who
acknowledged execution of the foregoing for and on behalf of said corporation,
limited partnership and limited liability company, and who, having been duly
sworn, stated that the execution thereof was his/her free act and deed and the
free act and deed of said corporation for and on behalf of said limited
partnership and limited liability company.
_______________________________________
Notary Public
My Commission Expires:_________________
Prepared by: Xxxxxx X. Xxxxxxx
and upon recordation return to:
Xxxxxxx & Xxxxxxx & Xxxxx XXX
0000 Xxxxxxxx Financial Center
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
EXHIBIT A
---------
LEGAL DESCRIPTION
PARCEL 1 - Fee Simple:
DESCRIPTION OF A 18.870 ACRE TRACT
LOCATED NORTH OF REFUGEE ROAD AND
WEST OF XXXXXXXX ROAD
CITY OF COLUMBUS, FRANKLIN COUNTY, OHIO
Situate in the State of Ohio, County of Franklin, City of Columbus, lying in
Section 28, Township 12, Range 21, Refugee Lands, being part of an original
39.017 acre tract conveyed to EM Columbus, LLC, by deed of record in Instrument
Number 200401080005999, all records herein of the Recorder's Office, Franklin
County, Ohio, and being more particularly described as follows:
BEGIN FOR REFERENCE, at point, referenced by a 3/4 inch iron pin found at a
distance of 0.25 feet east, at the common corner of said original 39.017 acre
tract, an original 17.03 acre tract conveyed to Lazarus Real Estate II, Inc., by
deed of record in Official Record 12166, Page D16, a 0.955 acre tract (Parcel
No. 5WD) conveyed to the State of Ohio, by deed of record in Deed Book 3030,
Page 37, and a 0.660 acre tract (Parcel No. 6WD) conveyed to the State of Ohio,
by deed of record in Deed Book 3095, Page 343;
Thence the following two (2) courses and distances along the lines common to
said original 39.017 acre tract and said original 17.03 acre tract:
1. South 46(degree)52'45" West, a distance of 434.23 feet, to a cotton gin
spike set;
2. North 43(degree)07'15" West, a distance of 128.72 feet, to a cotton gin
spike set in the line common to said original 39.017 acre tract and said
original 17.03 acre tract, said cotton gin spike also being at the POINT OF
TRUE BEGINNING;
Thence the following eleven (11) courses and distances across the said original
39.017 acre tract:
1. South 46(degree)52'45" West, a distance of 276.51 feet, to a cotton gin
spike set;
2. North 43(degree)07'15" West, a distance of 4.83 feet, to a cotton gin spike
set;
3. South 46(degree)52'45" West, a distance of 287.00 feet, to a cotton gin
spike set;
4. South 43(degree)07'15" East, a distance of 18.17 feet, to a cotton gin
spike set;
5. South 46(degree)52'45" West, a distance of 45.00 feet, to a cotton gin
spike set;
6. South 43(degree)07'15" East, a distance of 115.17 feet, to a cotton gin
spike set;
7. South 46(degree)52'45" West, a distance of 26.36 feet, to a cotton gin
spike set;
8. North 88(degree)07'15" West, a distance of 30.00 feet, to a cotton gin
spike set;
9. Along a curve to the left, having a central angle of 45(degree)00'00", a
radius of 100.00 feet, an arc length of 78.54 feet, a chord which bears
South 69(degree)22'45" West, a chord distance of 76.54 feet, to a cotton
gin spike set;
10. South 46(degree)52'45" West, a distance of 88.26 feet, to a cotton gin
spike set;
11. Along a curve to the right, having a central angle of 44(degree)10'34", a
radius of 100.00 feet, an arc length of 77.10 feet, a chord which bears
South 68(degree)58'02" West, a chord distance of 75.21 feet, to cotton gin
spike set in the line common to said original 39.017 acre tract and a 1.021
acre tract conveyed to Sears, Xxxxxxx and Co., by deed of record in Deed
Book 2647, Page 229;
Thence the following three (3) courses and distances along the lines common to
said original 39.017 acre tract and said 1.021 acre tract:
1. North 46(degree)52'45" East, a distance of 34.73 feet, to a cotton gin
spike set;
2. North 43(degree)07'15" West, a distance of 475.00 feet, to a cotton gin
spike set;
3. South 46(degree)52'45" West, a distance of 100.00 feet, to a cotton gin
spike set at the common corner of said original 39.017 acre tract, said
1.021 acre tract and an original 16.772 acre tract conveyed to Sears,
Xxxxxxx and Co., by deed of record in Deed Book 2485, Page 481;
Thence North 43(degree)07'15" West, a distance of 446.00 feet, along the line
common to said original 39.017 acre tract and said original 16.772 acre tract,
to a cotton gin spike set in the line common to said original 16.772 acre tract,
said original 39.017 acre tract and a 1.247 acre tract conveyed to Sears,
Xxxxxxx and Co., by deed of record in Deed Book 3173, Page 250;
Thence the following two (2) courses and distances along the lines common to
said original 39.017 acre tract and said 1.247 acre tract:
1. North 46(degree)52'45" East, a distance of 127.56 feet, to a cotton gins
spike set;
2. North 43(degree)07'15" West, a distance of 124.93 feet, to a 3/4" iron pin
set at the common corner of said 1.247 acre tract and said original 39.017
acre tract and in the easterly line of an original 45.707 acre tract
conveyed to Columbus East Joint-Venture, by deed of record in Official
Record 13511, Page G18;
3. Thence North 46(degree)52'45" East, a distance of 655.59 feet, along the
line common to said original 45.707 acre tract and said original 39.017
acre tract, to a 3/4 inch iron pin set at the common corner of said
original 39.017 acre tract and said original 17.03 acre tract;
Thence the following five (5) courses and distances along the lines common to
said original 39.017 acre tract and said original 17.03 acre tract:
1. South 43(degree)07'15" East, a distance of 124.94 feet, to a cotton gin
spike set;
2. South 46(degree)52'45" West, a distance of 41.83 feet, to a cotton gin
spike set;
3. South 43(degree)07'15" East, a distance of 318.00 feet, to a cotton gin
spike set;
4. North 46(degree)52'45" East, a distance of 208.68 feet, to a cotton gin
spike set;
5. South 43(degree)07'15" East, a distance of 553.28 feet, to the POINT OF
TRUE BEGINNING, containing 18.870 acres, more or less.
The bearings shown hereon are based on the bearing of North 85(degree)37'49"
West for the northerly right-of-way line of Refugee Road (Right-of-way
established by using ODOT plans FRA-270-15.95 and FRA-270-18.155), as determined
from GPS network of field observations performed in November, 2003, (Ohio Xxxxx
Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxx, 0000 adjustment).
All iron pin set are 3/4 inch iron pipes, 30 inches in length, with a yellow cap
bearing the name "X.X.XXXXX".
PARCEL 2 - Fee Simple:
DESCRIPTION OF A 7.008 ACRE TRACT
LOCATED NORTH OF REFUGEE ROAD AND
WEST OF XXXXXXXX ROAD
CITY OF COLUMBUS, FRANKLIN COUNTY, OHIO
Situate in the State of Ohio, County of Franklin, City of Columbus, lying in
Xxxxxxx 00, Xxxxxxxx 00, Xxxxx 00, Xxxxxxx Xxxxx and being part of an original
39.017 acre tract conveyed to EM Columbus, LLC, by deed of record in Instrument
Number 200401080005999, all records herein of the Recorder's Office, Franklin
County, Ohio, and being more particularly described as follows:
BEGINNING at a 3/4 inch iron pin found at southwest corner of said original
39.017 acre tract, in the northerly right-of-way line of Refugee Road, also
being a common corner to an original 16.772 acre tract conveyed to Sears,
Roebuck, and Co., by deed of record in Deed Book 2485, Page 481, a 0.66 acre
tract (Parcel No. 152 E-WD) conveyed to the State of Ohio, by deed of record in
Deed Book 3039, Page 102, and a 1.26 acre tract (Parcel No. 152 DWD) conveyed to
the State of Ohio, by deed of record in Deed Book 3095, Page 345;
Thence North 46(degree)52'45" East, a distance of 541.55 feet, along the line
common to said 39.017 acre tract and said original 16.772 acre tract, to a
cotton gin spike set in said common line;
Thence the following three (3) courses and distances on, over and across said
original 39.017 acre tract:
1. South 43(degree)07'15" East, a distance of 152.99 feet, to a cotton gin
spike set;
2. North 46(degree)52'45" East, a distance of 359.52 feet, to a cotton gin
spike set;
3. South 43(degree)07'15" East, a distance of 425.94 feet, to a 3/4 inch iron
pin found in the southeasterly line of said original 39.017 acre tract,
being the northwesterly right-of-way line of Interstate 270;
Thence South 46(degree)52'10" West, a distance of 350.00 feet, along the line
common to said original 39.017 acre tract and the northwesterly right-of-way of
said Interstate 270, to a 3/4 inch iron pin found at the common corner of said
original 39.017 acre tract and said 1.26 acre tract, said iron pin also being in
the northwesterly right-of-way line of said Interstate 270 and the northerly
right-of-way of Refugee Road;
Thence the following three (3) courses and distances along the lines common to
said original 39.017 acre tract, said 1.26 acre tract and the northerly
right-of-way of said Refugee Road:
1. North 85(degree)37'49" West, a distance of 526.65 feet, to a 3/4 inch iron
pin found;
2. South 04(degree)22'11" West, a distance of 15.00 feet, to an iron pin set;
3. North 85(degree)37'49" West, a distance of 272.53 feet, to the POINT OF
BEGINNING, containing 7.008 acres, more or less.
All iron pin set are 3/4 inch iron pipes, 30 inches in length, with a yellow cap
bearing the name "X.X.XXXXX".
The bearings shown hereon are based on the bearing of North 85(degree)37'49"
West for the northerly right-of-way line of Refugee Road (Right-of-way
established using ODOT plans FRA-270-15.95 and FRA-270-270-18.155), as
determined from GPS network of field observations performed in November, 2003,
(Ohio Xxxxx Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxx, 0000 adjustment).
PARCEL 3 - Fee Simple:
DESCRIPTION OF A 3.219 ACRE TRACT
LOCATED WEST OF XXXXXXXX ROAD AND
NORTH OF REFUGEE ROAD
CITY OF COLUMBUS, FRANKLIN COUNTY, OHIO
Situate in the State of Ohio, County of Franklin, City of Columbus, lying in
Section 28, Township 12, Range 21, Refugee Lands, being part of an original
17.03 acre tract conveyed to Lazarus Real Estate II, Inc. by deed of record in
Official Record 12166, Page D-16, all records herein of the Recorder's Office,
Franklin County, Ohio, and being more particularly described as follows:
BEGINNING FOR REFERENCE, at a 3/4 inch iron pin found at the southwest corner of
Franksway Street (50 feet-wide) as shown and delineated on the record plat of
FRANKSWAY STREET, MACSWAY AVENUE AND SERVICE ROAD DEDICATION IN RAINIER PARK, a
subdivision of record in Plat Book 45, Page 22, said iron pin also being at the
southeast corner of 3.903 acre tract (Parcel II) conveyed to Eastland Plaza
Limited Partnership, by deed of record in Instrument Number 199917120283701;
Thence North 85(degree)38'57" West, a distance of 617.49 feet, passing a 3/4
inch iron pin (bent) found at a distance of 198.70 feet, along the line common
to said original 17.03 acre tract and said 3.903 acre tract, to a 3/4 inch iron
pin found at the common corner of said original 17.03 acre tract and a 6.000
acre tract conveyed to Eastland Manor, Inc., by deed of record in Deed Book
3622, Page 438;
Thence South 46(degree)52'45" West, a distance of 105.12 feet along the line
common to said original 17.03 acre tract and said 6.000 acre tract, to an iron
pin set, said iron pin being the POINT OF TRUE BEGINNING;
Thence the following two (2) courses and distances over and across said original
17.03 acre tract:
1. South 43(degree)07'15" East, a distance of 500.94 feet, to a cotton gin
spike set;
2. South 46(degree)52'45" West, a distance of 105.83 feet, to a cotton gin
spike set in the line common to said original 17.03 acre tract and an
original 39.017 acre tract conveyed to EM Columbus, LLC, by deed of record
in Instrument Number 200401080005999;
Thence the following five (5) courses and distances along the lines common to
said original 17.03 acre tract and said original 39.017 acre tract:
1. North 43(degree)07'15" West, a distance of 58.00 feet, to a cotton gin
spike found;
2. South 46(degree)52'45" West, a distance of 208.68 feet, to a cotton gin
spike found;
3. North 43(degree)07'15" West, a distance of 318.00 feet, to a cotton gin
spike found;
4. North 46(degree)52'45" East, a distance of 41.83 feet, to a cotton gin
spike found;
5. North 43(degree)07'15" West, a distance of 124.94 feet, to a 3/4" inch iron
pin found at the common corner of said original 17.03 acre tract and said
original 39.017 acre tract and in the north line of an original 45.707 acre
tract conveyed to Columbus East Joint-Venture, by deed of record in
Official Record 13511, Page G18;
Thence North 46(degree)52'45" East, a distance of 272.68 feet, passing a 3/4
inch iron pin found at a distance of 126.90 feet, along the line common to said
original 17.03 acre tract, said original 45.707 acre tract and said 6.000 acre
tract, to the POINT OF TRUE BEGINNING, containing 3.219 acres, more or less. Of
which being 2.437 acres out of Parcel Number 010-118467 and 0.782 acres out of
Parcel Number 010-005373.
All iron pin set are 3/4 inch iron pipes, 30 inches in length, with a yellow cap
bearing the name "X.X. XXXXX".
The bearings shown hereon are based on the bearing of North 85(degree)37'49"
West for the northerly right-of-way line of Refugee Road (Right-of-way
established by using ODOT plans FRA-270-15.95 and FRA-270-18.155), as determined
from GPS network of field observations performed in November, 2003, (Ohio Xxxxx
Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxx, 0000 adjustment).
PARCEL 4 - Fee Simple:
DESCRIPTION OF A 0.536 ACRE TRACT
LOCATED NORTH OF REFUGEE ROAD AND
WEST OF XXXXXXXX ROAD
CITY OF COLUMBUS, FRANKLIN COUNTY, OHIO
Situate in the State of Ohio, County of Franklin, City of Columbus, lying in
Xxxxxxx 00, Xxxxxxxx 00, Xxxxx 00, Xxxxxxx Xxxxx and being part of an original
39.017 acre tract conveyed to EM Columbus, LLC, by deed of record in Instrument
Number 200401080005999, all records herein of the Recorder's Office, Franklin
County, Ohio, and being more particularly described as follows:
BEGIN FOR REFERENCE, at point, reference by a 3/4 inch iron pin found at a
distance of 0.25 feet east, at the common corner of a Proposed 12.598 acre
tract, an original 17.03 acre tract conveyed to Lazarus Real Estate II, Inc., by
deed of record in Official Record 12166, Page D16, a 0.955 acre tract (Parcel
No. 5WD) conveyed to the State of Ohio, by deed of record in Deed Book 3030,
Page 37, and a 0.660 acre tract (Parcel No. 6WD) conveyed to the State of Ohio,
by deed of record in Deed Book 3095, Page 343;
Thence South 04(degree)20'19" West, a distance of 277.78 feet, along the line
common to said original 39.017 acre tract and said 0.660 acre tract, to an iron
pin set, being the POINT OF TRUE BEGINNING;
Thence South 04(degree)20'19" West, a distance of 266.27 feet, along the line
common to said original 39.017 acre tract, said 0.660 acre tract and a 0.62 acre
tract (Parcel No. 152 DWD-1) conveyed to the State of Ohio by deed of record in
Deed Book 3095, Page 345, to an iron pin set;
Thence the following four (4) courses and distances on, over and across said
original 39.017 acre tract;
1. North 85(degree)39'20" West, a distance of 57.66 feet, to an iron pin set;
2. Along a curve to the right, having a central angle of 34(degree)00'09", a
radius of 200.00 feet, an arc length of 118.69 feet, a chord which bears
North 12(degree)39'25" West, a chord distance of 116.96 feet, to a cotton
gin spike set;
3. North 04(degree)20'40" East, a distance of 157.23 feet, to a cotton gin
spike set;
4. South 83(degree)54'20" East, a distance of 91.88 feet, to the POINT OF TRUE
BEGINNING, containing 0.536 acres, more or less.
All iron pin set are 3/4 inch iron pipes, 30 inches in length, with a yellow cap
bearing the name "X.X.XXXXX".
The bearings shown hereon are based on the bearing of North 85(degree)37'49"
West for the northerly right-of-way line of Refugee Road (Right-of-way
established using ODOT plans FRA-270-15.95 and FRA-270-270-18.155), as
determined from GPS network of field observations performed in November, 2003,
(Ohio Xxxxx Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxx, 0000 adjustment).
Parcel 5 - Easements:
Easements and Rights for the benefit of Parcel No. 1 as created by the Easement,
Restrictions and Operating Agreement, dated March 1, 1966, filed for record
March 2, 1966 and recorded in Book 2715, Page 519 of Franklin County Records; as
amended by the First Amendment to Easement, Restrictions and Operating
Agreement, dated March 15, 1966, filed for record June 22, 1966 and recorded in
Book 2742, Page 45 of Franklin County Records; as amended by the Second
Amendment to Easement, Restrictions and Operating Agreement, dated May 17, 1971,
filed for record November 9, 1971 and recorded in Book 3189, Page 273of Franklin
County Records; as amended by Third Amendment to Easement, Restrictions and
Operating Agreement, dated September 30, 1974, filed for record March 12, 1975
and recorded in Book 3454, Page 365 of Franklin County Records; being the same
easements and rights identified in the Purchase and Operating Agreement by and
among Federated Department Stores, Inc., Sears, Xxxxxxx & Co. and Columbus
East-Joint Venture, dated as of June 2, 1965; as amended by the First Amendment
to Purchase and Operating Agreement, dated as of February 7, 1966; as amended by
Second Amendment to Purchase and Operating Agreement, dated as of March 15,
1966; as amended by Third Amendment to Purchase and Operating Agreement, dated
as of May 17, 1971, filed for record November 9, 1971 and recorded in Book 3221,
Page 271 of Franklin County Records; as amended by Fourth Amendment to Purchase
and Operating Agreement, dated as of September 30, 1974, filed for record March
12, 1975 and recorded in Book 3510, Page 303 of Franklin County Records; as
assigned by Assignment and Assumption of Operating Agreement, dated as of July
29, 1988, filed for record August 26, 1988 and recorded in ORV 12166, Page E02
as amended by Fourth Amendment to Easements, Restrictions and Operating
Agreement, dated as of December 15, 1994, filed for record September 14, 1995
and recorded in ORV 30025, Page I-03, as amended in Fifth Amendment to
Easements, Restrictions and Operating Agreement, dated as of December 15, 1994
filed for record September 14, 1995 and recorded in ORV 30025, Page I-12, and as
further amended by Amended and Restated Construction, Operating and Reciprocal
Easement Agreement by and among The May Department Stores Company, a New York
corporation, Sears, Xxxxxxx and Co., a New York corporation, Rich's Department
Stores, Inc., an Ohio corporation, and EM Columbus, LLC, a Delaware limited
liability company, dated May 20, 2005 and recorded June 1, 2005 in the
Recorder's Office of Franklin County, Ohio, as Instrument No. 200506010106031,
(the "REA"), and Quitclaim Deed of Easement from X.X. Xxxxxx Corporation, Inc.,
a Delaware corporation, to EM Columbus, LLC, a Delaware limited liability
company, dated May 17, 2005, recorded June 1, 2005 as Document No.
200506010106040, all in the Franklin County Recorder's Office, Ohio.
Parcel 6- Easements:
Easement for the Benefit of Parcel No. 1, as created by The Party Wall
Agreement, dated September 1, 1966, filed for record July 11, 1967 and recorded
in Book 2824, Page 459 of Franklin County Records, for the purpose described in
said Party Wall Agreement, over, under and across the land as described in said
Party Wall Agreement, subject to the terms, provisions and conditions set forth
in said document.
