Collateral Assignment of Joint Development Agreement And Purchase Agreement And Escrow Instructions

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.


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 op ...