EXHIBIT 10.132
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attn: Dennis M.
Coghlan, Esq.
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ASSIGNMENT OF LEASES AND RENTS
dated as of
June 3, 2008
from
PUENTE HILLS MALL, LLC
a Delaware limited liability company
to
EUROHYPO AG, NEW YORK BRANCH,
as Administrative Agent for the Lenders (as hereinafter
defined)
Location of Project:
1600 South Azusa Avenue, Industry, California 91748
County: Los Angeles
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ASSIGNMENT OF LEASES AND RENTS
THIS
ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made as of
the
3rd day of June, 2008 by PUENTE HILLS MALL, LLC, a limited
liability company
duly organized and validly existing under the laws of the State of
Delaware and
having an office at c/o Glimcher Realty Trust, 180 E. Broad Street,
21st Floor,
Columbus, Ohio 43215 ("Borrower"), in favor of EUROHYPO AG, NEW
YORK BRANCH,
having an office at 1114 Avenue of the Americas, New York, New York
10036, as
Administrative Agent for the lenders referred to below (in such
capacity,
together with its successors in such capacity, the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, Grantor is the fee owner of that certain tract of land
located in
the County of Los Angeles, State of California, and being more
fully described
in Exhibit A-1 attached hereto (the "Fee-Owned Land").
WHEREAS, Grantor is the tenant under that certain GROUND LEASE
dated
September 23, 1969, by and between Jeanne Marie Erramouspe,
individually, and as
attorney in fact for Emilie E. Wilfert, Charlotte E. Torrance and
Bette
Marcellin; Emilie E. Wilfert, trustee for George E. Wilfert, III
and Gary S.
Wilfert; Charlotte E. Torrance, trustee for J. Michele Torrance and
Thomas J.
Torrance; and Bette Marcellin, trustee for Richard J. Marcellin and
Colette A
Marcellin (collectively "Original Lessor") and Ernest W. Hahn,
Inc., a
California corporation as lessee ("Original Lessee"), for the
ground lease of
the Ground Lease Property; as amended by: ADDENDUM NO. 1 TO GROUND
LEASE DATED
SEPTEMBER 23, 1969 dated December 22, 1972, between Original Lessor
and
Hahn-Puente Associates, a limited partnership in which Ernest W.
Hahn, Inc. is
the general partner, Broadway-Hale Stores, Inc., a California
corporation,
Sears, Roebuck and Co., a New York corporation, J. C. Penny
Properties, Inc., a
Delaware corporation, and Adcor Realty Corporation, a New York
corporation;
CONSTRUCTION, OPERATION, AND RECIPROCAL EASEMENT AGREEMENT dated
December 22,
1972, by and between Hahn-Puente Associates, Broadway-Hale Stores,
Inc., Sears,
Roebuck and Co., J. C. Penny Properties, Inc., and Adcor Realty
Corporation;
SUBORDINATION AGREEMENT dated December 22, 1972, by Original
Lessor; DEED AND
ASSIGNMENT dated December 20, 1991, between RT-H Corporation of
California, a
California corporation, as grantor/assignor, and Hahn-Puente
Associates, as
grantee/assignee; GROUND LEASE ASSIGNMENT dated August 5, 1996, by
and between
Hahn-Puente Associates, as assignor, and Kent Properties, Inc., a
California
corporation, as assignee; GROUND LEASE ASSIGNMENT dated October 21,
1996, by and
between Kent Properties, Inc., as assignor, and Krausz Capistrano
Partners, a
California general partnership, as assignee; GROUND LEASE
ASSIGNMENT dated
October 21, 1996, by and between Krausz Capistrano Partners, as
assignor, and
Krausz Puente LLC, a California limited liability company, as
assignee
(collectively with all amendments thereto, the "Ground Lease")
affecting the
land located in the County of Los Angeles, State of California, and
being more
fully described in Exhibit A-2 attached hereto (the "Leasehold
Land"; the
Fee-Owned Land and the Leasehold Land are referred to collectively
herein as the
"Land").
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WHEREAS, Borrower, certain lenders (collectively, the "Lenders")
and the
Administrative Agent are parties to a Loan Agreement dated as of
even date
herewith (said Loan Agreement, as modified and supplemented and in
effect from
time to time, being herein called the "Loan Agreement"; and except
as otherwise
herein expressly provided, all terms defined in the Loan Agreement
are being
used herein as defined therein), which Loan Agreement provides,
among other
things, for Loans to be made by the Lenders to Borrower in an
aggregate
principal amount not exceeding $90,000,000.00 to be evidenced by,
and repayable
with interest thereon in accordance with, various Notes to be
executed and
delivered to the respective order of the Lenders (collectively, as
such notes
may be consolidated, severed, modified, amended, restated or
extended, the
"Notes") and are secured by, among other things, that certain
Mortgage delivered
by Borrower; and
WHEREAS, it is a condition to the obligation of the Lenders to
extend
credit to Borrower pursuant to the Loan Agreement that Borrower
execute and
deliver this Assignment as the Assignment of Leases and Rents under
the Loan
Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals, which
are
incorporated into the operative provisions of this Assignment by
this reference,
and for other good and valuable consideration, the receipt and
adequacy of which
are hereby conclusively acknowledged, Borrower and the
Administrative Agent, for
the benefit of the Lenders, agree as follows:
Section 1. Absolute Assignment.
(a)
Borrower unconditionally and absolutely assigns to the
Administrative
Agent, for the benefit of the Lenders, all of Borrower's right,
title and
interest in and to the following whether now or hereafter in
effect:
(i)
Leases. All leasehold
estates, leases, ground leases, subleases,
licenses, concessionaire agreements, bailments or other
agreements
affecting the use, enjoyment or occupancy of the Project or any
portion thereof now or hereafter existing or entered into
(including
any use or occupancy arrangements created pursuant to Section
365(d)
of Title 11 of the United States Code (the "Bankruptcy Code")
or
otherwise in connection with the commencement or continuance of
any
bankruptcy, reorganization, arrangement, insolvency,
dissolution,
receivership or similar proceedings, or any assignment for the
benefit
of creditors) in respect of any tenant or occupant of any portion
of
the Project (each, a "Tenant"), together with all guaranties
thereof
and all extensions, amendments and modifications thereto heretofore
or
hereafter entered into, and all right, title and interest of
Borrower
thereunder (collectively, the "Leases"); and
(ii)
Rents. All rents, issues, profits, royalties, use and occupancy
charges (including all oil and gas or other mineral royalties
and
bonuses),
income and other benefits now or hereafter derived from any
portion of the Project or the use or occupancy thereof (including
any
payments received pursuant to Section 502(b) of the Bankruptcy Code
or
otherwise in connection with the commencement or continuance of
any
bankruptcy, reorganization, arrangement, insolvency,
dissolution,
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receivership or similar proceedings, or any assignment for the
benefit
of creditors, in respect of any Tenant of any portion of the
Project
and all claims as a creditor in connection with any of the
foregoing)
and all cash, security deposits, letters of credit, advance
rentals,
all deposits or
payments of a similar nature relating thereto and all
other documents or instruments evidencing the Rent whether now
or
hereafter in effect (collectively, the "Rents").
(b)
This Assignment constitutes an absolute and present assignment and
not
an assignment for additional security only.
Section 2. Rights of the Administrative Agent.
(a)
The execution of this Assignment constitutes and evidences the
irrevocable consent of Borrower to the entry upon and taking
possession of the
Project by the Administrative Agent and the exercise by the
Administrative Agent
of the rights and powers granted pursuant hereto, including,
without limitation,
those set forth in clauses (i) through (viii) below, regardless of
whether
foreclosure has been instituted pursuant to the Assignment and
without applying
for a receiver. Such assignment shall include, without
limitation:
(i)
the immediate and
continuing right to receive and collect all amounts
payable by all Tenants, including, without limitation, (A) all
Rents,
(B) all damages or other amounts payable in the event of any
expiration or termination of any Lease pursuant to the terms
thereof,
by operation of law or otherwise, (C) any indemnification against,
or
reimbursement for, sums paid and costs and expenses incurred by
Borrower under any Lease or otherwise, (D) any award in the event
of
the bankruptcy of any Tenant or guarantor of a Lease, and (E)
all
security deposits, other security instruments, other deposits
or
prepayments with respect to any such Leases;
(ii)
all claims, rights, powers, privileges and remedies of
Borrower,
whether provided for in any Lease or arising by statute or at law
or
in equity or otherwise, consequent on any failure on the part of
any
Tenant to perform or comply with any term of any Lease;
(iii) all right to take all action upon the happening of a default
under
any Lease as shall be permitted by any Lease or by law,
including,
without limitation, the commencement, conduct and consummation
of
proceedings at law or in equity;
(iv)
the full power and authority, in the name of Borrower, or
otherwise,
to enforce, collect, receive and make receipt for any and all of
the
foregoing and to do any and all other acts and things whatsoever
which
Borrower, or any landlord is or may be entitled to do under any
Lease;
(v)
the full power and
authority, in the name of Borrower, or otherwise,
to enforce any Lease, including the right to settle,
compromise,
release, extend the time of payment of, and make allowances,
adjustments and discounts of any Rents or other obligations under
the
Leases;
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(vi)
the full power and authority, in the name of Borrower, or
otherwise,
to notify any Person that the Leases have been assigned to the
Administrative Agent and that all Rents are to be paid directly to
the
Administrative Agent, whether or not the Administrative Agent
has
commenced or completed foreclosure or taken possession of the
Project;
(vii) the full power and authority, in the name of Borrower, or
otherwise,
to lease the Project; and
(viii) the right to apply the Rents to the payment of the
Obligations (as
such term is defined in the Mortgage) in accordance with the
Loan
Agreement.
(b)
During the term hereof, all rights, powers and privileges of
the
Administrative Agent herein set forth are coupled with an interest
and are
irrevocable, subject to the terms and conditions hereof, and
Borrower will not
take any action under any Lease or otherwise which is inconsistent
with this
Assignment or any of the terms hereof or thereof and any such
action
inconsistent herewith or therewith shall, to the fullest extent
permitted by
Applicable Law, be void. Any further assignment of any rents,
issues, or profits
from the Project shall to the fullest extent permitted by law be
void.
(c)
Borrower shall have all the right to enter into new leases or
modify
existing leases as provided in the Loan Agreement. Borrower hereby
agrees that
it will not, unilaterally or by agreement, (i) except as otherwise
expressly
permitted in the Loan Agreement, subordinate, amend, modify,
extend, discharge,
terminate, surrender, waive or otherwise change any term of any
Lease in any
manner which would violate this Assignment, the Loan Agreement or
the other Loan
Documents or (ii) except for security deposits, accept a prepayment
of Rent in
excess of Rent for one month. If any Lease shall be amended as
permitted hereby,
such Lease shall continue to be subject to the provisions hereof
without the
necessity of any further act by any of the parties hereto, subject
to the
provisions of any non-disturbance agreement which the
Administrative Agent may
have granted in accordance with the provisions of this
Assignment.
Section 3. No Obligation.
(a)
Nothing contained in the foregoing sentence shall be construed to
bind
the Administrative Agent or any Lender to the performance of any of
the
covenants, conditions or provisions contained in any such Lease or
other
document or otherwise to impose any obligation on the
Administrative Agent or
any Lender (including any liability under the covenant of quiet
enjoyment
contained in any Lease), except that the Administrative Agent shall
be
accountable for any money or security actually received pursuant to
such
assignment.
(b)
None of the enforcement of any of the remedies under this
Assignment or
any other remedies afforded to the Administrative Agent and/or the
Lenders under
the Loan Documents, at law or in equity shall cause the
Administrative Agent or
any Lender to be deemed or construed to be a
mortgagee-in-possession of the
Project, to obligate the Administrative Agent or any Lender to
lease the Project
or attempt to do so, or to take any action, incur any expense, or
perform or
discharge any obligation, duty or liability whatsoever under any of
the Leases
or otherwise.
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(c)
Notwithstanding anything to the contrary contained in this
Assignment,
the Administrative Agent shall not be obligated to perform or
discharge any
obligation, duty or liability under the Leases or by reason of this
Assignment
and Borrower shall, and hereby agrees at its sole cost and expense
to protect,
defend, indemnify and hold the Administrative Agent harmless for,
from and
against, and shall be responsible for, any and all liability, loss
or damage
which may or might be incurred under the Leases 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
the
Administrative Agent 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, except to the extent such liability, loss,
damage or
claim has resulted solely from Administrative Agent's or any
Lender's gross
negligence or willful misconduct, in which case the party to whom
the gross
negligence or willful misconduct is attributable (but not any other
party) shall
not be entitled to the indemnification provided for hereunder to
the extent of
such gross negligence or willful misconduct.
Section 4. Grant of License; Revocation. Until the occurrence of an
Event
of Default, the Administrative Agent waives its rights under
Sections 1 and 2,
and grants Borrower a license to collect the Rents. Such license to
collect and
receive the Rents shall be automatically revoked and the rights of
Borrower
thereunder shall automatically cease and terminate upon the
occurrence and
during the continuance of an Event of Default. In such event, (i)
Borrower
hereby authorizes the Administrative Agent to receive and collect
the Rents due
under the terms of each Lease and to direct any Tenant, by written
notice from
the Administrative Agent or otherwise, to forward such Rents by
mail or in
person to the Administrative Agent and (ii) Borrower shall
immediately pay to
the Administrative Agent any Rents held by or under the control of
Borrower.
Borrower hereby irrevocably appoints and constitutes the
Administrative Agent as
Borrower's lawful attorney-in-fact, coupled with an interest and
with full power
of substitution, for the purpose of taking, during the continuance
of an Event
of Default, any of the actions described in the immediately
preceding sentence
and all acts incidental thereto. Following the revocation of the
license herein
granted, the Administrative Agent may retain and apply the Rents
toward payment
of the Obligations and/or Operating Expenses in such order,
priority and
proportions as the Administrative Agent, in its discretion, shall
deem proper,
or to the operation, maintenance and repair of the Project, and
irrespective of
whether the Administrative Agent shall have commenced a foreclosure
of this
Assignment or shall have applied or arranged for the appointment of
a receiver
with respect thereto.
Section 5. Direction to Tenants. Borrower hereby irrevocably
authorizes and
directs each Tenant of the Project, upon receipt of notice from
the
Administrative Agent of an Event of Default, to pay all Rents due
or to become
due under its Lease directly to the Administrative Agent or to any
appointed
receiver of the Project. Each such Tenant shall have the right to
rely upon any
such notice of the Administrative Agent directing the payment of
all Rents to
the Administrative Agent, without any obligation to inquire as to
the actual
existence of the Event of Default, notwithstanding any claim of
Borrower to the
contrary and Borrower shall have no rights or claims against any
Tenant for any
Rents so paid to the Administrative Agent. Borrower shall
facilitate, in all
commercially reasonable ways, the collection of the Rents by the
Admi
