ASSIGNMENT AND ASSUMPTION AGREEMENT


 


THIS ASSIGNMENT AND
ASSUMPTION AGREEMENT (this “Agreement”) is dated as of January 2, 2014, between Wells Fargo Bank, National Association
(“Assignor”) and PNC Bank, National Association (“Assignee”).


 


RECITALS:


 


A.           Assignor
is a Lender under the Loan Agreement dated as of November 27, 2013 (as from time to time amended, supplemented or restated, the
“Loan Agreement”), by and among EYP REALTY, LLC as Borrower, the persons named therein as Lenders and such other
Persons as may become Lenders in accordance with the terms of the Loan Agreement, and Wells Fargo Bank, National Association, as
Administrative Agent (“Administrative Agent”). (Capitalized terms used in this Agreement without definition
have the same meanings as in the Loan Agreement.)


 


B.           Currently,
Assignor’s Pro Rata Share of the Loan is equal to 77.0270270270% and Assignee’s Pro Rata Share of the Loan is equal
to 0%.


 


C.           Assignor
desires to assign to Assignee, and Assignee desires to accept and assume, a portion of the rights and obligations of Assignor under
the Loan Agreement.


 


NOW, THEREFORE, in
consideration of the mutual agreements herein contained, the parties hereto agree as follows:


 


1.          Assignment.


 


(a)          Effective
on the Assignment Effective Date (as defined in Section 3 below), Assignor hereby assigns to Assignee the Assigned Share (as defined
below) of a portion of Assignor’s rights, title, interest and obligations under the Loan Agreement and other Loan Documents,
including without limitation those relating to Assignor’s Pro Rata Share of the Loan. The Assigned Share of all such rights,
title, interest and obligations is referred to collectively as the “Assigned Rights and Obligations”.


 


(b)          The
“Assigned Share” means the portion of Assignor’s Pro Rata Share in the Loan being assigned hereby, such
portion being equal to 22.9729729730% of the Loan (or $42,500,000.00). The new Pro Rata Share of Loan being held by Assignee (after
giving effect to the assignment hereunder), and the Pro Rata Share in the Loan retained by Assignor, shall be as specified on the
signature pages of this Agreement.


 


2.          Assumption.
Effective on the Assignment Effective Date and subject to Section 13.12(c) of the Loan Agreement, Assignee hereby accepts
the foregoing assignment of, and hereby assumes from Assignor, the Assigned Rights and Obligations.


 


3.          Effectiveness.
This Agreement shall become effective on a date (the “Assignment Effective Date”) selected by Assignor, which
shall be on or as soon as practicable after the execution and delivery of counterparts of this Agreement by Assignor, Assignee,
Administrative Agent and Borrower. Assignor shall promptly notify Assignee, Administrative Agent and Borrower in writing of the
Assignment Effective Date.


 






    	 



    	 



    

 


4.          Payments
on Assignment Effective Date. In consideration of the assignment by Assignor to Assignee, and the assumption by Assignee,
of the Assigned Rights and Obligations, on the Assignment Effective Date Assignee shall pay to Assignor such amounts as are specified
in any written agreement or exchange of letters between them.


 


5.          Allocation
and Payment of Interest and Fees.


 


(a)          Administrative
Agent shall pay to Assignee all interest and other amounts (including Fees, except as otherwise provided in the written agreement
referred to in Section 4 above) not constituting principal that are paid by or on behalf of Borrower pursuant to the Loan Documents
and are attributable to the Assigned Rights and Obligations (“Borrower Amounts”), that accrue on and after the
Assignment Effective Date. If Assignor receives or collects any such Borrower Amounts, Assignor shall promptly pay them to Assignee.


 


(b)          Administrative
Agent shall pay to Assignor all Borrower Amounts that accrue before the Assignment Effective Date (or otherwise pursuant to the
written agreement referred to in Section 4 above) when and as the same are paid by Administrative Agent to the other Lenders. If
Assignee receives or collects any such Borrower Amounts, Assignee shall promptly pay such amounts to Assignor.


 


(c)          Unless
specifically assumed by Assignee, Assignor shall be responsible and liable for all reimbursable liabilities and costs and indemnification
obligations which accrue under Section 12.12 of the Loan Agreement prior to the Assignment Effective Date, and such liability shall
survive the Assignment Effective Date.


 


6.          Administrative
Agent Liability. Administrative Agent shall not be liable for any allocation or payment to either Assignor or Assignee subsequently
determined to be erroneous, unless resulting from Administrative Agent’s willful misconduct or gross negligence.


 


7.          Representations
and Warranties.


 


(a)          Each
of Assignor and Assignee represents and warrants to the other and to Administrative Agent as follows:


 


(i)          It
has full power and authority, and has taken all action necessary, to execute and deliver this Agreement and to fulfill its obligations
under, and to consummate the transactions contemplated by, this Agreement;


 


(ii)         The
making and performance of this Agreement and all documents required to be executed and delivered by it hereunder do not and will
not violate any law or regulation applicable to it;


 


(iii)        This
Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable in accordance
with its terms; and


 






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(iv)        All
approvals, authorizations or other actions by, or filings with, any Governmental Authority necessary for the validity or enforceability
of its obligations under this Agreement have been made or obtained.


 


(b)          Assignor
represents and warrants to Assignee that Assignor owns the Assigned Rights and Obligations free and clear of any Lien or other
encumbrance.


 


(c)          Assignee
represents and warrants to Assignor as follows:


 


(i)          Assignee
is and shall continue to be an “Eligible Assignee” as defined in the Loan Agreement;


 


(ii)         Assignee
has made and shall continue to make its own independent investigation of the financial condition, affairs and creditworthiness
of Borrower and any other Loan Party; and


 


(iii)        Assignee
has received copies of the Loan Documents and such other documents, financial statements and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Agreement.


 


8.          No
Assignor Responsibility. Assignor makes no representation or warranty regarding, and assumes no responsibility to Assignee
for:


 


(a)          the
execution (by any party other than Assignor), effectiveness, genuineness, validity, enforceability, collectability or sufficiency
of the Loan Documents or any representations, warranties, recitals or statements made in the Loan Documents or in any financial
or other written or oral statement, instrument, report, certificate or any other document made or furnished or made available by
Assignor to Assignee or by or on behalf of any Loan Party to Assignor or Assignee in connection with the Loan Documents and the
transactions contemplated thereby;


 


(b)          the
performance or observance of any of the terms, covenants or agreements contained in any of the Loan Documents or as to the existence
or possible existence of any Default or Potential Default under the Loan Documents; or


 


(c)          the
accuracy or completeness of any information provided to Assignee, whether by Assignor or by or on behalf of any Loan Party.


 


Assignor shall have
no initial or continuing duty or responsibility to make any investigation of the financial condition, affairs or creditworthiness
of any of the Loan Parties, in connection with the assignment of the Assigned Rights and Obligations or to provide Assignee with
any credit or other information with respect thereto, whether coming into its possession before the date hereof or at any time
or times thereafter.


 






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9.          Assignee
Bound by Loan Agreement. Effective on the Assignment Effective Date, Assignee (a) shall be deemed to be a party to the Loan
Agreement and as such, shall be directly liable to Borrower for any failure by Assignee to comply with Assignee’s assumed
obligations thereunder, including, without limitation, Assignee’s obligation to fund its Pro Rata Share of the Loan in accordance
with provisions of the Loan Agreement and be subject to Section 13.12(c) of the Loan Agreement, (b) agrees to be bound by the
Loan Agreement to the same extent as it would have been if it had been an original Lender thereunder, (c) agrees to perform in
accordance with their respective terms all of the obligations which are required under the Loan Documents to be performed by it
as a Lender, and (d) agrees to maintain its status as an Eligible Assignee. Assignee appoints and authorizes Administrative Agent
to take such actions as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to Administrative
Agent by the terms thereof, together with such powers as are reasonably incidental thereto.


 


10.         Assignor
Released From Loan Agreement. Effective on the Assignment Effective Date, Assignor shall be released from the Assigned Rights
and Obligations; provided, however, that Assignor shall retain all of its rights to indemnification under the Loan Agreement and
the other Loan Documents for any events, acts or omissions occurring before the Assignment Effective Date, and, to the extent
not assumed by Assignee, Assignor shall continue to be responsible for the liabilities and obligations described in Section 5(c)
of this Agreement.


 


11.         New
Notes. On or promptly after the Assignment Effective Date, Borrower, Administrative Agent, Assignor and Assignee shall make
appropriate arrangements so that new Notes executed by the Borrower, dated the Assignment Effective Date and in the amount of
the respective Pro Rata Shares of Assignor and Assignee in the original Loan amount, after giving effect to this Agreement, are
issued to Assignor and Assignee, in exchange for the surrender by Assignor and Assignee to Borrower of any applicable outstanding
Notes, marked “Exchanged”.


 


12.         General.


 


(a)          No
term or provision of this Agreement may be amended, waived or terminated orally, but only by an instrument signed by the parties
hereto.


 


(b)          This
Agreement may be executed in one or more counterparts. Each set of executed counterparts shall be an original. Executed counterparts
may be delivered by facsimile transmission.


 


(c)          If
Assignor has not assigned its entire remaining Pro Rata Share of the Loan to Assignee, Assignor may at any time and from time to
time grant to others, subject to applicable provisions in the Loan Agreement, assignments of or participation in all of Assignor’s
remaining Pro Rata Share of the Loan.


 


(d)          This
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither
Assignor nor Assignee may assign or transfer any of its rights or obligations under this Agreement without the prior written consent
of the other and Administrative Agent. The preceding sentence shall not limit the right of Assignee to grant to others a participation
in all or part of the Assigned Rights and Obligations subject to the terms of the Loan Agreement.


 


(e)          All
payments to Assignor or Assignee hereunder shall, unless otherwise specified by the party entitled thereto, be made in United States
dollars, in immediately available funds, and to the address or account specified on the signature pages of this Agreement. The
address of Assignee for notice purposes under the Loan Agreement shall be as specified on the signature pages of this Agreement.


 






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(f)          If
any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions hereof will not be affected
or impaired in any way.


 


(g)          Each
party shall bear its own expenses in connection with the preparation and execution of this Agreement.


 


(h)          This
Agreement shall be governed by and construed in accordance with the laws of the State of New York.


 


(i)          Foreign
Withholding. On or before the Assignment Effective Date, Assignee shall comply with the provisions of Section 2.11 of the Loan
Agreement.


 


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IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the date first above written.


 


	ASSIGNOR:	WELLS FARGO BANK, NATIONAL ASSOCIATION
	 	 
	 	By:	/s/ Robin Lidington
	 	Name:	Robin Lidington
	 	Its:	Vice President


 


	 	Payment Instruction:
	 	Wells Fargo Bank
	 	 
	 	ABA No.:	121000248
	 	Account No.:	0205775168807
	 	Reference:	
        EYP Realty, LLC (Loan Number: 1010723)

	 	Loan No.:	1010723
	 	Attn:	Mark Halfmann
	 	Telephone:	 
	 	Facsimile:	 


 


	ASSIGNEE:	PNC BANK, NATIONAL ASSOCIATION
	 	 
	 	By:	/s/ Brian P. Kelly
	 	Name:	Brian P. Kelly
	 	Its:	Senior Vice President


 


	 	Payment Instruction:
	 	PNC Bank, N.A.
	 	 
	 	ABA No.:	043000096
	 	Account No.:	130760016803
	 	Reference:	EYP Realty, LLC
	 	Loan No.:	 
	 	Attn:	Chad Robinson
	 	Telephone:	 
	 	Facsimile:	 


 


[Assignment and Assumption Agreement –
PNC]


 




    	 



    	 



    

 


	ACKNOWLEDGED AND AGREED:
	 	 
	BORROWER:	EYP REALTY, LLC,
	 	a Delaware limited liability company
	 	 
	 	By:	/s/ Jason Kirschner
	 	Name:	Jason Kirschner
	 	Its:	Vice President, Finance
	 	 
	 	 
	ADMINISTRATIVE AGENT:	WELLS FARGO BANK, NATIIONAL ASSOCIATION
	 	 
	 	By:	/s/ Robin Lidington
	 	Name:	Robin Lidington
	 	Its:	Vice President


 


[Assignment and Assumption Agreement –
PNC]