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EXHIBIT 10.31
COLLATERAL ASSIGNMENT OF
JOINT DEVELOPMENT AGREEMENT AND
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
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Project Commonly Known as "Scottsdale Quarter"
THIS COLLATERAL ASSIGNMENT OF JOINT DEVELOPMENT AGREEMENT AND
PURCHASE
AGREEMENT AND ESCROW INSTRUCTIONS ("Assignment"), dated as of
November 30, 2007,
is made by KIERLAND CROSSING, LLC, a Delaware limited liability
company
("Assignor"), in favor of KEYBANK NATIONAL ASSOCIATION, a
national banking
association, not individually but as Administrative Agent (the
"Assignee") on
behalf of and for the benefit of the Lenders (as defined in the
Loan Agreement)
and their respective successors and assigns.
R E C I T A L S
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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 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 No/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
15101 North Scottsdale Road in Scottsdale, Arizona to be known
as "Scottsdale
Crossing" (the "Project"). 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 (collectively, the "Notes") in favor of
Lenders of even
date herewith in the aggregate amount of the Loan, payment of
which is secured
by (i) a Leasehold Deed of Trust, Assignment of Rents, Security
Agreement and
Fixture Filing made by Assignor for the benefit of Assignee on
the Project, and
(ii) the other Loan Documents.
C. On May 12, 2006, Assignor and Kierland Crossing Residential,
LLC, an
Arizona limited liability company ("Seller") entered into that
certain Purchase
Agreement and Escrow Instructions ("Purchase Agreement") whereby
Seller agreed
to sell the real property on which the Project will be
located.
D. Seller, Kierland Crossing Residential II, LLC, and Kierland
Crossing
Residential III, LLC, each an Arizona limited liability company
(collectively
known as the "Phase III Developers") have entered into that
certain Joint
Development Agreement dated as of November 26, 2007
("Development Agreement")
with Assignor and Glimcher Development Corporation (the
"Contract
Administrator") which provides for the design and construction
of, and the
sharing of costs for, certain site work, off-site and related
improvements
benefiting both the Project and the adjoining parcels owned by
the Phase III
Developers.
E. The execution and delivery of this Assignment is a condition
precedent
to the performance by Lender of its obligations under the Loan
Agreement.
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AGREEMENTS
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NOW, THEREFORE, in consideration of the recitals set forth above
and
incorporated herein, and for other good and valuable
consideration, Assignor
agrees as follows:
1. Assignor hereby grants, transfers and assigns to Assignee all
the right,
title and interest of Assignor, if any, now or hereafter
acquired in and to the
following relating to the Project:
a. the Purchase Agreement, together with any and all
extensions,
modifications, amendments, replacements and renewals thereof;
and
b. the Development Agreement, together with any and all
extensions,
modifications, amendments, replacements and renewals
thereof;
The items referred to in subsections (a) and (b) above are
sometimes hereinafter
collectively referred to as the "Assigned Agreements."
This Assignment is given for the purpose of securing the payment
of all
sums, including, without limitation, the payment of principal
and interest due
under the Notes, now or at any time due Assignee and Lenders
under the Loan
Agreement or any other Loan Documents evidencing or securing the
Loan, and any
extensions, modifications, amendments and renewals thereof, and
the performance
and discharge of the obligations, covenants, conditions, and
agreements of
Assignor contained herein and in the Loan Documents.
2. Assignor agrees:
a. To faithfully abide by, perform and discharge each and
every
obligation, covenant, condition and agreement of the Assigned
Agreements to be
performed by Assignor and to enforce performance by the other
party thereto of
each and every obligation, covenant, condition and agreement to
be performed by
such other party.
b. That the occurrence of an Event of Default by Assignor under
the
Loan Agreement shall constitute an "Event of Default"
hereunder.
c. Upon the occurrence and during the continuation of any Event
of
Default hereunder, Assignee shall have all rights granted to
Assignee under the
Loan Documents, and Assignee shall have the right (but not the
obligation) to
correct any default in such manner and to such extent as
Assignee may deem
necessary to protect the security hereof, including
specifically, without
limitation, the right to appear in and defend any action or
proceeding
purporting to affect the security hereof or the rights or powers
of Assignee,
and also the right to perform and discharge each and every
obligation, covenant,
condition and agreement of Assignor under the Assigned
Agreements, and, in
exercising any such powers, to pay necessary costs and expenses,
employ counsel
and incur and pay reasonable attorneys' fees and expenses.
Assignee shall not be
obligated to perform or discharge, nor does it hereby undertake
to perform or
discharge, any obligation, duty or liability under any of the
Assigned
Agreements, or by reason of this Assignment.
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d. At any time after the occurrence and during the continuation
of an
Event of Default, Assignee may, at its option, without notice,
and without
regard to the adequacy of security for the indebtedness hereby
secured, either
in person or by agent, with or without bringing any action or
proceeding, or by
a receiver to be appointed by a court at any time hereafter,
enforce for its own
benefit the Assigned Agreements, or any of them. The exercise of
any rights
under this Assignment shall not be deemed to cure or waive any
default under any
of the Loan Documents, or waive, modify or affect any notice of
default under
any of the Loan Documents, or invalidate any act done pursuant
to such notice.
e. That the Seller, the Contract Administrator, the Phase
III
Developers and any other parties to the Assigned Agreements,
upon written notice
from Assignee of the occurrence and during the continuation of
an Event of
Default, shall be and are hereby authorized by Assignor to
perform for the
benefit of Assignee in accordance with the terms and conditions
thereof without
any obligation to determine whether or not such an Event of
Default has in fact
occurred.
f. Should Assignee or any Lender incur any liability (other
than, in
each case, on account of Assignee's or such Lender's negligence
or willful
misconduct) 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 reasonable attorneys'
fees and
expenses shall be secured hereby and by the Deed of Trust and
all other Loan
Documents (whether or not such amount, when aggregated with
other sums secured
by the Deed of Trust, exceeds the aggregate face amount of the
Notes) and shall
be due and payable immediately upon demand by Assignee. During
the occurrence
and continuation of any Event of Default, any amounts incurred
by Administrative
Agent or any Lender under this Section 2.f 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
Administrative Agent or any Lender under this Section 2.f shall
bear interest
from the tenth (10th) Banking Day following the date of demand
for payment at
the Default Rate.
g. That this Assignment shall be assignable by Assignee to
any
successor to Assignee under the Loan Agreement and all
representations,
warranties, covenants, powers and rights herein contained shall
be binding upon,
and shall inure to the benefit of, Assignor, Assignee, each
person who at any
time is a Lender, and their respective legal representatives,
successors and
assigns.
3. Assignor further hereby covenants and represents to Assignee
that (a)
Assignor has not previously assigned, sold, pledged,
transferred, mortgaged,
hypothecated or otherwise encumbered the Assigned Agreements or
any of them, or
its right, title and interest therein, (b) Assignor shall not
assign, sell,
pledge, transfer, mortgaged, hypothecate or otherwise encumber
its interests in
the Assigned Agreements or any of them except to the Lenders
under the Loan
Documents, (c) Assignor has not knowingly performed any act
which might prevent
Assignor from performing its undertakings hereunder or which
might prevent
Assignee from operating under or enforcing any of the terms and
conditions
hereof or which would limit Assignee in such operation or
enforcement, (d)
Assignor is not in default under the Assigned Agreements, and to
the best
knowledge of Assignor, no other party to the respective Assigned
Agreements is
in default thereunder except as disclosed in writing to
Assignee, (e) no
amendments to the Purchase Agreement will be made without the
prior written
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consent of Assignee, and (f) on or before the date hereof with
respect to the
existing Assigned Agreements, Assignor will deliver a copy of
such Assigned
Agreements (or an original at Assignee's
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