03-21-97 agendaCITY OF RICHFIELD, MINNESOTA
MONDAY, MARCH 24, 1997
SPECIAL HOUSING AND REDEVELOPMENT AUTHORITY. MEETING
COUNCIL CHAMBERS
6:30 P.M.
AGENDA
CALL TO ORDER
1. CONSIDERATION OF APPROVAL OF AGREEMENTS RELATING TO THE.
MERIDIAN CROSSING PROJECT
HRA LETTER NO. 16
ADJOURNMENT
Auxiliary aids for individuals with disabilities are available upon request.
Requests must be made at least 96 hours. in advance to the Administrative
Services Director at 861-9702.
,.
HOUSING AND REDEVELOPMENT AUTHORITY
HRA Letter No. i6
Agenda March 24, 1997
Issue Statement:
Consideration of approval of the following agreements for the Meridian Crossings
project: (a.) Consent to Assignment, Estoppel and Agreement; and (b.) Consent to
Assignment and Assumption.
Background:
On February 18, 1997, the HRA approved a Right of Entry Agreement between the
HRA and Meridian Crossings Properties Real Estate Development L.L.C., d/b/a TOLD
Development Company (Developer). The purpose of the agreement was to permit the
Developer to enter the Cloverleaf site prior to the land sale closing in order to initiate
site grading and utility work. A Letter of Credit was provided by the Developer in
conjunction with the agreement in order to protect the HRA from any default under the
agreement.
The closing on the land sale for the Phase I portion of the Cloverleaf site is scheduled
for Tuesday, March 25, 1997. In order to expedite closing matters, two agreements
necessary for the closing are required of the HRA. Each agreement is described below.
• Consent to Assignment, Estoppel and Agreement
This agreement is required by the Developer's lender, Richter-Schroeder Company,
Inc., of Milwaukee, Wisconsin. Essentially, the Consent to Assignment, Estoppel and
Agreement subordinates the HRA's interest to the lender in the event of a default by the
Developer.
Consent to Assignment and Assumption
Meridian Crossings Properties Real Estate Development L.L.C., d/b/a TOLD
Development Company (Developer) is currently under contract with the HRA for the
project.. Upon the HRA's land sale to the Developer, the Developer will grant, transfer
and assign its rights and interests to Meridian Crossings L.L.C. The Assignment and
Assumption governs this transfer. The Consent to Assignment and Assumption
acknowledges the HRA's approval of this transfer.
Both of the agreements described above are standard and similar in nature to the
agreements with the CSM Corporation for the Shops at Lyndale retail redevelopment
project. A copy of each agreement is attached for review.
Recommended Motion:
Adopt a motion which authorizes execution of the (a.) Consent to Assignment, Estoppel
and Agreement and (b.) Consent to Assignment and Assumption by the Chair and
. Executive Director.
Basis of Recommendation:
1. The Consent to Assignment, Estoppel and Agreement is similar in nature to a
Subordination Agreement and is an agreement required by lenders to protect their
assets in case of contract default by the Developer.
2. The Consent to Assignment and Assumption is required by the HRA to effectuate
the transfer of rights and interests from Meridian Crossings Properties Real Estate
Development L.L.C., d/b/a TOLD Development Company to Meridian Crossings
L.L.C.
3. Legal counsel has reviewed the (a) Consent to Assignment, Estoppel and
Agreement and the (b) Consent to Assignment and Assumption and is of the
opinion that both are reasonable legal documents necessary for closing and
adequately protect the HRA.
4. The closing on the Phase I portion of the land sale is scheduled for March 25,
1997.
Alternative Recommendation:
1. Reject the Agreements required for closing.
2. Delay approval of the Agreements required for closing
Discussion/Decision Mode:
Approval of the Agreements would allow the closing on the land sale to occur as
scheduled.
Respectfully submitted,
Ja a .Prosser
Executive Director
JDP:ds
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CD~QB~_Q A~~! ESTO]tl~~~L,~AND,
~~
Thin CON6SNT TO A58I~NT, ESTOPPEL AN'D AGREEMENT
t"Agreement") is made es of the day of March, 199'7 by and
among D~RIDZAN CA086INGS LLC, a Minnesota limited liability
company ( "Redeveloper" } , AIC~IT$R-SCHAOEDSR co~spANX, IDtC. , a
Wisconsin corporation {together with its successors a>~d assigns,
"Lender" ) and TR8' ' HO't3'8TN4 ANA >RSDE'V'ELOPMI~NT AV?SORITY YN AND FOR
TR8 CITY OF AICgP'TBLD, ltZNN1{SOTA, a Minnesota public body
corporate and po7.itic (the "HRA"}.
W '~ T N~ S S$ T Ms
WHEREAS, RedAveloper's pred~xaessox in interest, Meridian
Properties Real Estate DaveXopment L.L.C., and iiRA ent~lred into
that certain contract for private redevelopment dated November ~,
1985, as amended by that certain First amendment co contract for
pri~+rate xedevelopsnesit dated as of -March 18, lg9&, and as further
amarlded by that certain second amendment to contract for private
redevelopirlertt dated as of September 2S9b and that certain
LeZtteY of Understanding dated Match 19, 1996 tas ainanded, the
"Contract") which assignment of said Contract to Meridian
Crossings LLC, was cvneanted to by the HRA vn March 2g, 1997,
• pursuant to which Cho HRA has agreed, ~-mong,other things, to sell
the Redeveloper the property snore particularly described on
Exhibit A attached hereto (the "Phase I Property" or the
"Grope=ty"); and
WHEREAS, Lender has agreed to make a loan of up to
$~1,oaa,000 to the Redevelopelr {the pConstzuction Doan") For the
purpose of ca>,zstz'ucting an ®ight story, multi-tenant office
building and parking structure on the Property (the "Project"),
and is or will be the holder oP (i) a Mortgage and Security
Afire®ment and Fixture Financing Statement tthe "Mortgage") which
does ox wi7.1 encumber. the >Qroperty, azYt4 {ii} a eellatara2
Assignment of Tax .Incremental Financing {the "Assignment"}
puzsuant to wlYich the Redeveloper will assign the Contract to the
Lender far collateral purposod,
WHEREAS, the Contract specifies, among other things, ti18t
3'iAA has the right to approve or disapprove of certain matters
priox` to closing the sale of the Property and that saertain of
HRA's rights under the Contrast ax® subject to being subordinated
in favor of a construction lender;
WHERE71.9, the Lender would be unwil~,ing to snake the
Construct;on Loan without the a9aurancss provided in thi.e
Agra~rtlent ; arsd
PAGE 2
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wEiLRLAa, capitalised terms used herein that are not
otherwise defined herein shall have the meanirtge attributed to
them in the Contract;
NOw, THERE~'Oi~, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
toZlows:
1. Consent t_o~esianment. $RA aoknowledges that the
Redeveloper's interest under the Contract is to be assigned to
Leader and hereby gives its consent thereto. Such assignment
shall not constitute a default under the Contract nor in any way
alter or affect Redeveloper's rights and oblgationsc under the
Contract. HRA further acknowledges that HRA hays consented to the
execution of the purchase and s~-le agraemesnti dated as of
March _, 1997 between. the Redeveloper and OTR, as nominee for
The State Teachers ttetirement Board oP Ohio.
` 2_ Rep~^esenta 'one Rggardina the Contract.
{a) Gen~trai.R ars~sntations. HRA hereby represents,
warrants and certifies to Lender that as of the date hereof:
(i) HRA is the owner and holder of the HRA's
intexest under the Contrast;
• {ii) a true and complete ropy of the Contract is
attached hereto AS Exhibit 8, xhe CoAtraCt represents the entire
agreement between the Redeveloper and FiRA with respect to the
Property and the Contract has not been modified, supplemented or
amended in any wayF
(iii? the Contract is in full forts and effect and
COn6t3.tt1tEi6 a legal. valid and binding obligation of the xx~;
(iv) neither HRA nor Redeveloper is in daPault
under any of .the terms, coveinants or pxovisione of the Contract
end no notice of ddfault under the Contract has been served by or
upon HRA, and HRA, to the bast of its knowledge, knows of no
event which, but for the passage of tame or the giving of notice,
or both, would aon+atitute 2tzi event of default by HRA or
Redeveloper uxider the Contract;
(~r) neither HRA nor Lender has commenced any
action or given or received any notice !or the purpose of
terminating khe ContraetJ
(vi) all sums currently due and payable undex the
Contre~ct have been paid in full, and
{vii} there are no offsets or defenses to
performance of the Contract.
PAGE 3
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ib? ~pep~~,ti$p~esen,I,ations. PIRA hereby represents,
warrants and cextifiee to Ladder that as of the date hereof
(references to a '"section" below are to a Aection of the
Contract}:
ti) with respect to the Phase I Pzoperty, the
Redeveloper and HRA have reached agreement an the initial
graenndi.tions to closing set forth in section 3.2, and the letter
agreement dated March 19, 1946 between HRA and the Rrrdevelop~sr
{the "T,etter Agreetaerit"? evidencss the written agreement
referextcad in section 3.2 regarding thaC neither party has any.
termination rights pursuant:to the last paragraph of section 3.2.
HRA has removed th® foreign soil that has previously been placod
on the Property that is referenced in the Letter Agreement in
connection with Section 3.2tfa of the Contract;
ti.i} the Red,~velopcr hie reZpned Che Property t;o
PC-2 and has obtained a conditional use permit far the phase x
Minimum Smprovements ac required by sectioxt 3.3{c):
{iii} the HRA has obtained all. necessary permits
and approvals regarding the filling of the wetlandsa referenced in
roection 3.4 td) to the extent that such wetlands are present an
the Phase I Property;
tiv) the HRA is not conditiozuAg the clc:eizlg of
the sale of the Phase I Property on its ability to ~.I~eue artd ss11
tax increment gezteral obligation bonds as described in section
3.3 te} J
(vf the idRA is .satisfied that the Redeveloper has
met its obligations with respect to financing and conatructioa
contracts as set forth in >aeatiori 3.4 tg)
tvi} the HRA hoe removed the prior coa9truction
project located on the Property pursuant to sectionn 3.3{~):
tva.i) the HRA has approved the Concept Plans more
particulaxly dtsacxibed on $ ibit c hereto; and
(viii} the Redeveloper has obtained. the insurance
required by section 6.1.
3. $~bordinati~n, pursuant tv section8 6.3 and 8.5 of the
Contract, HRA hereby algraes that its rights under the Contract
era tend Qhall be subject and subordinate to the Mortgage and the
Asaigtiment and to all of-the proviwions.contained therein, all
advances made or to be made thereunder, and to any renewals,
modifications, supplements, replacements, consolidations,
incre:aaes cad extetlsion4 of the Mortgage and the Assign>nent .
g . R_ecQe„~n~tio{~ of Succe,~~ag,_~+Kv~loper. ~iRA. shall.
receipe of written notice from Lender stating that it ia3
exercising its right under the Asaignmeat to assume thg
Redeveloper's position under the Contract zecognize Lender
upon
as the
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C7
Redeveloper under the Contrast without further consent from
Redeveloper or court order; provided that, in accordance with
9eetion 8.3 of the contract, Lendex shall not be permitted to
undertake ar continua the construction or completion of the Phase
I Minimum Improvement or receive any paymsnt9 under Note I {as
such term is defined in the Contract? unless it assumes
Redeveloper's obligations. under section 4.S(A). HRA agrees that,
if-the interest of Redeveloper in the Contract shall be assumed
by Lender, or in the event of a foreclasure sale of the Property
to any other peraen er entity, then FiRA shall recognize Lender or
such. purchaser, grantor, ox other successor to Redeveloper*s
interest (~'Succeaaor Redeveloper") as the Redeveloper under the
Contract upon such Successor Redevelopers request and Lender
shall not be {a) liable for any accrued obligation pf Redevelopex
or for any act or omission vg Redev~aloper, whether prior to ar
after much foreclasure or sale, (b} xeguired to make any repairs
to the Property required as a result of fire or other casualty ar
by reason o€ condemnation unless Lender shall be obligated under
the Contz~ct to make such repairs and shall have received
sugficient casualty insurance proceeds or condemnation awards to
finance the completion of such repairs, ox {c) eub~eGC to any
offsets or counterclaims or similar claims which shall have
accrued to HRA against Redeveloper prior to the date upon which
Lender or othex successor Redeveloper shall become the own~sr of
the Property. Successor Redeveloper's liability under the
Contract shall be ].~.mited to the extent of the interest of the
3uctess-or-Redeveloger in the Property and in no event shall
Successor Redeveloper be personally liable under the .Contract.
NokwithStanding~ any other provision in this Agreement to the
.contrary, the HRA, -the Redeveloper and the Lender acknowledge and
agree that the. HRA shall have nv obligation to make any payments
under Note i to the Lender if an Event of Default (as dsfi~ied in
the Contract} has occurred under the contract o» the part of the
Redeveloper and such Event of Default hats not been waived by the
HRA or cured by the Redeveloper or Leader or Successor
Redeveloper within the time period permitted under the contract
ar coxed by the Lender within a ~r'aawonable time.
5. Further Amenc}ments 4~ the Contract. KRA shall not,
without obtaining the prior written consent of Lender, {a) enter
into any agreement which terminates the Contract or amends or
modifies the Contract, (b) terminate the Contract without cause,
or {c? assign the Contractor say part thereof; and any such
amendment, modification, termination, prepayment, voluntary
eurrendex, aeeignmene ar subletting, without Lender's priaz~
consent, sha11 not be binding open Leader.
6 . ~Q iea o `~Jotit"~a/L.enr3s+r~ s pnflortuni y to Cure . In
accordance with section B,Z, HRA will promptly furnish Lender at
the address set forth beneath its signature below with a copy of
all not~,css given by HRA to Redeveloper under the pxavisions of
the Contract. Yn addition, HRA agrees that no notice or demand
with respect to a default or breach of the contract by the
Redevelopex shall be effective unless Lender has received notice
of such default and has failed to cure such default or breach
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•
(however, .Lender shall not be obligated to curs any such default
or breach) within whichever period of time is long®r {i) forty-
fivs {45) days after receipt of such notice or (ii? such period
of time fallowing such notice as Redeveloper has to cure the
default which gives rise to such alleged xight of cancellation,
reduction or abmtement.
7. ~~1oes Gener,~al~. Any notice or election to be given
hereunder shall be in writing, addressed to the party at the
address atatc~d below Chat party's $ignnture on this Agreement and
shall be t1) delivered in person to the receiving party by the
other .party, his agent or a prafes~sional courier service, {11f
sent United States certified or regi>9tered mail, postage prepaid,
return receipt requested, or (iii) sent by`telscopy to the
receiving party at the tel®copy phone numb~sr stated below the
receiving party'$ signatuxe on this Rgroemsnt. Rssy such notice
or tlection sha11 be deemed of€ective upon they earlier of the
actual receipt of the notice cr election or 4i) if delivered in
person, then when such notice or el~sction ins delivered to 8n
individual at the receiving party's address who is apparently
auehoYized to accept dcliver~,els, tii) if sent by United States
certified or registered mail, then one day after such notice cr
election is depposited with the United States Po~atal 5ez'vi.ce, or
{iii) if s~er~t by telecopy, then at the time sent and confzrmsd by
the sender's trrlnsmitrted copy of such notice or election.
8. parties g, ou„nd. Thia A~grsement ~Ihall bind and inure to
the benefit of the successors and asslgrrs of the parties hereCO;
.provided that the Redeveloper shall not assign its rights and
obl~tgations hereunder without the consent of both the H17A and the
Lender.
9 , only„ T~ r ' t~ tea Rimend~te , Thia Agraernent may not be
modified in any tttanner or terminated except by an instrument in
writing executed by the parties hereto,
Z0. go~s-~inq_Law. This Agreement eahall be governed by and
construed under the laws of the State df Minnesota.
11, DTot,~ces of Defa~c to HRR. The Lender agrees to
provide written notice Co the HRA of the occurrence of an Bvent
of Default on the part of the 17eveloper under the Construction
Loan Ayxeemeint or the Mortgage prior to comet®>ncing any
foreclosure proceeding with respect to the Property or prior to
accepting a deed in lieu of foreclosure with respect to the
Property; provided that the failure to give any such notice shall
not impair or delay the Lender's rights and remedies in arty
manner, but such failure shall Gxtend the commencement of the
Option Period referenced below. Any notice given to the F3RA
pursuant to this paragraph 11 shall be cent by registered or
certified mail to the HRA at the following address:
PAGE 6
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The Fiausing and Redavelopm~snt Authority
in and for the City of Richfield
6700 Portland Avenue South-
' Richfield, Minnesota 5523
Attention: Executive Dl.rector
12. B, ec e,,~~ion Riaht,,~s~o~ NI~n. During the forty-five (~5~
day period (the ~~optien Period"} commencing on the date when the
Lend+~r sands tca the N12A the written notice described in paxagraph
11 $bove, the FIRA shall have the option to purchase the
Construction Loan and the related L~snder loan doeumerits (the
"Lender Loan Documents")..from the Lender,. without ,representation
or xecourse of any kind by the Lender and pursuant to assignment
documentation acceptable to the Lender, for a purchase price
equal to th+s outstanding principal balance vE the construction
Loan plus all accrued and unpaid interest thereon and arsy ether
premiums, panaZties, fees. costs and. expenses owing to the Lender
under the Lender Loan Documents as of the date of funding of such
purchase. The H1IA acknowledges and agrees thmt the Lender may
commence foreclosure proceedings and may exercise other rights
and remedies available to the Lender undez the Lender Loan
Documents during the Option Period; provided, however, that she
Lender shall not accept a deed in lieu of foreclosure with
respect to the Property until after the expiration of the Option
Period. The HRA further ackiww~,edges that if the FIRA elects to
exercise its option to purchase the Construction-Loan under this
paragraph 12, the funding of Such purchase mutt occur prior to
5:00 p.m. (Minneapolis tine} on the last day of the Option
Period. The Lender further agreed that during the Option Period,
the HRA may propose for the LendeF's consideration a substitute
developer who, among other things, would assume all of the
obligations of the Redeveloper under the. Contract and under the
Lender Loan pocum®ntsf provided, howevex, the Lendrsr shall have
no obligation to either consider or accept any such substitute
developer; and provided, further, in the event that the Lendex',
in its sole diaaretion, shall determine to cor~9ider or accept
Such substitute developer, such consideration andJor acceptance
shall be on such terms as the Lender shall. determine in its sole
diaaretion.
IN WITNESS WHEREOF, the parties hereto have executed this
Agxeement as of the month,. day and year fir6t written above.
I~RIDIAN CR03SINGS LLC
By:
xtg:
Address•
Tel.ecopy No.:
RHS~~xs~e.a 6
PAGE 7
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•
AIC~TSR-SCHItORA~R CObIpAWY. IN'C.
~y~
I,~sa Lin aay.
v~.ce President
Address:
RlChter-Schroeder Company, YnC_
Suite 320
3110 North Odd World Third StreeC
Milwaukee, W'I 53203
T~lecopy N'o.: (qTg) 371-67x3
T8E I3OIIS~NCi ANA RS~DEV~LGpDt~1~1T
AUT$ORITY IN ANa $'OR T~iB CITY OA'
R~CR~t'~EI.T?, MTNNESdTA
By:
Its:
By:
It>~
Address:
Telecopy No.:
PACE $
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•
STATE OF )
SS
COUNTY OF -.^_ )
Personally came be€ore me this day of Marsh, 1999, the
above-named as the ~. of
Meridian Crossings LLC a~zrd to may known to be t e~i `son w o
executed the foregoing instrun~ant and acknowledged the same in
such capacity.
STATE OF j
) SS
covNTx of _„~,l
Notary Public, State o
My coau+n#.ssion:
Personally carne bs€oxe me this day o€ March, 1897, the
above-named as the
o T e Housli2g -and Re eve~.optttent Authority
in and for the City of Richfield, Mizuaesvta and to m® known to be
the person who executed the foregoing instrument and acknowledged
ebe ®atne ~n such capacity.
3TAT~E OF' )
ss
COUNTY OF )
Notary Publ c, State of
My eommission•
Personally came before me this day of March, 1997, the
above-,named Lisa A. Lindsay, as the Viea President of Richter-
Schroeder Company, Inc. and to me known to be- the person who
executed the foregoing instrument and acknowlr~dgad the same in
such capacity.
O81t~7ii~r.z
NOCary Publ c, State of
My commission:
B
PAGE 9
~ TOTAL PAGE.i7 >~
CONSENT TO ASSIGNMENT AND ASSUMPTION
Pursuant to the provisions contained in the Contract, the Housing and Redevelopment
Authority in and for the City of Richfield, Minnesota ("HRA") hereby finds and determines that
the proposed assignment and assumption is in compliance with the provisions contained in
Section 9.3(b) of the Contract. The HRA therefore approves and consents to the assignment and
assumption as described in the attached agreement.
Dated: March , 1997
•
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
RICHFIELD, MINNESOTA
By:
sy:
Its Commission Chairperson
Its Executive Director
JBD119595
RC125-66
ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT, made this day of 1997, by and between
MERIDIAN PROPERTIES REAL ESTATE DEVELOPMENT, LLC, a Minnesota limited
liability company (Assignor") and MERIDIAN CROSSINGS LLC, a Minnesota limited liability
Company ("Assignee").
WITNESSETH:
WHEREAS, Assignor has entered into a Contract for Private Redevelopment dated
November 6, 1995, with the Housing and Redevelopment Authority of the City of Richfield (the
"Contract");
WHEREAS, Assignor, as permitted by the Contract, now wishes to assign its rights and
interests therein to Assignee;
NOW, THEREFORE, IN CONSIDERATION OF One Dollar ($1.00) and other good,
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the.
parties hereto hereby agree as follows:
1. Assignor does hereby grant, transfer and assign to Assignee, all of its rights and
interests in the Contract.
2. Assignee hereby accepts this Assignment and assumes and agrees to faithfully
abide by, perform, and discharge each and every term, covenant, and condition of the Contract
which are to be performed by the Assignor thereunder from the date hereof and to defend and
hold Assignor harmless from any lawsuits, claims, damages, costs and expenses, including actual
attorneys' fees arising in connection with the Contract, except those arising from events occurring
or arising prior to the date hereof.
3. This Assignment and Assumption shall be binding upon and inure to the benefit
of the successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Assignment and Assumption
Agreement as of the date indicated below.
MERIDIAN CROSSINGS LLC
MERIDIAN PROPERTIES REAL
ESTATE DEVELOPMENT, LLC
By:
Its:
sy:
Its:
JBD119589
RC125-66