RECORDING REQUESTED BY AND
AFTER RECORDING RETURN TO:
Midland Loan Services, Inc. 00000
Xxxxxx, Xxxxx 000 Xxxxxxxx Xxxx, XX
00000 Attention: Xxxx Xxxxxxx Loan
Number: 00-0000000
CONSENT
AND ASSUMPTION AGREEMENT
WITH LIMITED RELEASE
This Consent and Assumption Agreement With Limited Release (this
"Agreement") is entered into as of March 17, 2004, by and among Townfair Center
Associates, a Pennsylvania general partnership, with an address of 0000 Xxxxxxx
Xxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000 ("Seller"), Xxxxxxxx X. Xxxx, Xx., with
an address of 0000 Xxxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000 ("Xxxx"),
Xxxxx X. Xxxxxxxxx, with an address of X.X. Xxx 0000 Xxxxxxx, XX 00000
("Xxxxxxxxx"), Xxx X. XxXxxxxx, with an address of X.X. Xxx 0000 Xxxxxxx, XX
00000 ("XxXxxxxx") (Xxxx, Xxxxxxxxx and XxXxxxxx are collectively referred to
herein as "Prior Principals"), Cedar Townfair, LLC, a Delaware limited liability
company, with an address of 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx,
Xxx Xxxx 00000 ("Buyer"), Cedar Shopping Centers, Inc., a Maryland corporation,
with an address of 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxx Xxxx
00000 ("New Principal"), and Xxxxx Fargo Bank N.A. f/k/a Norwest Bank Minnesota,
National Association, as Trustee for the registered holders of NationsLink
Funding Corporation, Commercial Mortgage Pass-Through Certificates, Series
1998-2 (collectively referred to herein as "Lender").
RECITALS
A. Seller is the owner of certain real property located in Indiana
County, Pennsylvania, commonly known as Townfair Center (Phase I & II), 000
Xxxxx Xxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxxxxxxxxx, which real property is
more particularly described in Exhibit A attached hereto and incorporated herein
by reference. Such real property, together with all improvements, fixtures and
personal property located thereon is collectively referred to as the
("Property".)
B. Lender is the owner and holder of certain documents (the "Loan
Documents") evidencing and securing a loan (the "Loan") made by Patrician
Financial Company Limited Partnership, a Massachusetts limited partnership
("Original Lender") to Seller, including, without limitation, the:
(i) Promissory Note (the "Note") dated as of February 13, 1998, in the
original principal amount of $10,700,000.00, executed by Seller,
as maker, in favor of Original Lender along with the
Acknowledgment and Agreement of Borrower Principal to Personal
Liability for the Exceptions to Non-Recourse executed by Prior
Principals ("Prior Guaranty") attached thereto;
(ii) Open-End Mortgage, Assignment of Leases and Rents and Security
Agreement (the "Security Instrument") dated as of February 13,
1998 executed by Seller in favor of Original Lender, filed for
record with the County Recorder, in and for Indiana County,
Pennsylvania (the "Recording Office") in Book 571, at Page 247
(the "Security Instrument");
(iii) U0CC Financing Statement listing Seller as debtor, and Original
Lender, as secured party, recorded in the Recording Office as
Instrument No. 1998-03040;
(iv) UCC Financing Statement listing Seller, as debtor, and Original
Lender, as secured party, filed with the Pennsylvania Secretary
of State as Instrument No. 28570063;
(v) Assignment and Subordination of Management Agreement dated as of
February 13, 1998, executed by Seller in favor of Lender
("Assignment and Subordination of Management Agreement");
(vi) Loan Agreement dated as of February 13, 1998, executed by Seller
and Prior Principals in favor of Lender ("Loan Agreement"); and
(vii) Such other documents evidencing or securing the Loan.
C. Midland Loan Services, Inc. services the Loan for Lender, as master
servicer, pursuant to that certain Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement") dated as of November 1, 1998.
D. Xxxxxx X. Xxxxx, a guarantor under the Prior Guaranty, died prior to
the date of this Agreement.
E. Seller and Buyer have entered into a Agreement of Purchase and Sale
(the "Purchase Agreement") dated December 24, 2003, pursuant to which the
Property is to be transferred to Buyer and Buyer is to assume the Loan (the
"Property Acquisition"), and have requested that Lender consent to (i) the
Property Acquisition and (ii) the construction of a new 5,000 square foot retail
building on the Property (the "Building Construction") (the Property Acquisition
and the Building Construction being collectively referred to herein as the
"Transfer and Assumption").
F. Subject to the terms and conditions of this Agreement, Lender has
agreed to consent to the Transfer and Assumption.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. Consent to Transfer. Subject to satisfaction of all of the
conditions contained herein, Lender consents to the Transfer and Assumption.
This consent is strictly limited to the Transfer and Assumption described in
this Agreement. This Agreement shall not constitute a waiver or modification of
any requirement of obtaining Lender's consent to any future transfer of the
Property or any portion thereof or interest therein, nor shall it constitute a
modification of the terms, provisions, or requirements in the Loan Documents in
any respect except as expressly provided herein. Buyer specifically acknowledges
that any
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subsequent transfer of any interest in any of the Property or interest in Buyer
in violation of the Loan Documents shall be a default thereunder. The Loan
Documents are hereby ratified and, except as expressly modified in this
Agreement, remain unmodified and are in full force and effect.
2. Loan Information. The parties hereto agree that as of the date
hereof:
(a) The outstanding principal balance of the Note is $9,993,258.02.
(b) The interest rate of the Note is a fixed rate of 6.96% per annum.
(c) The maturity date of the Note is March 1, 2008.
(d) The following listed payments are due and payable on the first day
of each and every calendar month:
o $70,900.16 principal and interest installments;
o $14,853.55 tax escrow deposits;
o $6,351.03 insurance escrow deposits; and
o $683.00 replacement reserve escrow deposits.
(e) The current balance of each escrow account held by Lender with
respect to the Loan Note is:
o $114,307.47 tax escrow account;
o $35,339.41 insurance escrow account; and
o $51,751.37 replacement reserve escrow account.
(f) All required payments due through March 1, 2004 under the Loan
Documents have been paid.
(g) There are no defenses or claims of setoffs with respect to any
sums or amounts owing under the Loan Documents.
(h) Lender is the current owner and holder of the Loan
Documents.
(i) There is no existing Event of Default (as defined in the Loan
Documents) or event or condition that, with the giving of notice
or passage of time or both, would constitute an Event of Default.
3. Conditions. In addition to any other conditions set forth herein or
required by Lender, the following are conditions precedent that must be
satisfied prior to the closing of the Transfer and Assumption (the "Closing"):
(a) The execution, acknowledgment, delivery and recordation of this
Agreement by all of the parties concurrently with the Closing.
(b) The execution, delivery and recordation or filing, as applicable,
of one or more new financing statements, or amendments to existing
financing statements as required by Lender at Closing.
(c) Buyer's delivery to Lender of satisfactory evidence that all
insurance over the Property required by the Loan Documents (the
"Required Insurance") is in full force and effect as of the
Closing, with all required premiums paid, and contains a
mortgagee's clause (the "Mortgagee's Clause") satisfactory to
Lender in favor of Xxxxx Fargo Bank N.A. f/k/a Norwest Bank
Minnesota, National Association, as Trustee for the registered
holders of NationsLink Funding Corporation, Commercial
3
Mortgage Pass-Through Certificates, Series 1998-2, its successors
and/or assigns, c/o Midland Loan Services, Inc., Master Servicer,
Xxxx Xxxxxx Xxx 000000, Xxxxxx Xxxx, Xxxxxxxx 00000-0000; re: Loan
Number 00-0000000.
(d) Lender's receipt of satisfactory Title Endorsements (hereinafter
defined).
(e) The full release and reconveyance of any other liens or monetary
encumbrances against the Property.
(f) Lender's receipt of all of the Required Payments (hereinafter
defined).
(g) The execution and delivery of an Acknowledgment and Agreement of
Borrower Principal to Personal Liability for the Exceptions to
Non-Recourse ("New Guaranty") by New Principal, in form and
substance acceptable to Lender in its sole and absolute
discretion.
(h) The execution and delivery of a Capital Improvement and Tenant
Fitout Escrow Agreement ("Escrow Agreement") by Buyer, in form and
substance acceptable to Lender in its sole and absolute
discretion.
4. Fees, Payment and Expenses. Buyer and/or Seller covenants and agrees
to pay to Lender at Closing the following (the "Required Payments"):
(a) $10,000.00, as an assumption fee for Lender's consent to the
Transfer and Assumption of the Loan (the "Assumption Fee"). (b)
$2,500.00, as the non-refundable application fee.
(c) $70,900.16, which represents the required monthly principal and
interest installment payment due on April 1, 2004.
(d) $14,853.55, which represents the required monthly tax escrow
deposits due on April 1, 2004, $683.00, which represents the
required monthly replacement reserve deposits due on April 1, 2004
and $6,351.03 which represents the required monthly insurance
escrow deposit due on April 1, 2004 (the "Escrow Deposits").
(e) the attorneys fees of Lender's counsel.
5. Title Endorsements. At Closing, Buyer shall (a) cause Lawyers Title
Insurance Corporation to issue such endorsements to Lender's mortgagee's title
insurance policy (Policy No. 82-02-649560) in such form as Lender may require
("Title Endorsements"), including showing that the Buyer is the owner of the
Property, changing the effective date of such title policy to the date of the
Closing, and showing that the Loan Documents are in a first lien position, and
(b) pay the cost of the Title Endorsements, any escrow, filing or recording fees
applicable to this transaction, and Lender's costs and expenses incurred in
connection with this Agreement or this transaction, including Lender's
attorneys' fees, if any, incurred in connection with this Agreement or this
transaction.
6. Buyer's Assumption of Loan; Financing Statements. Buyer hereby
expressly assumes the obligation to pay the unpaid balance due and owing on the
Loan, all interest thereon as provided in the Note and all other obligations
under the Loan Documents, with the same force and effect as if Buyer had been
specifically named therein as the original maker, borrower or grantor, as
applicable. Without limiting the generality of the foregoing, Buyer expressly
assumes the obligation to pay all loan installments as they become due and to
observe all obligations of the Loan Documents. Buyer's assumption of the
foregoing obligations (a) is absolute, unconditional and is not subject to any
defenses, waivers, claims or offsets, (b) shall not be affected or impaired by
any agreement, condition, statement or representation of any person or entity
other than Lender. Notwithstanding the foregoing, Buyer does not assume any
liability of Seller or
4
Prior Principals for their fraud, misrepresentation or other intentional torts.
Buyer expressly agrees that it has read, approved and will comply with and be
bound by all of the terms, conditions, and provisions contained in the Loan
Documents. To the extent the Note is recourse, Buyer specifically agrees that
Lender's remedies shall not in any respect or extent be limited solely to the
Property or any other collateral securing the Loan.
Buyer hereby authorizes Lender to file one or more new financing
statements, or amendments to existing financing statements, covering fixtures
and personal property collateral included in the Property and covered by the
security agreement contained in the Loan Documents, without signature of Buyer
where permitted by law. Buyer hereby confirms that it grants Lender a security
interest in all fixtures and personal property collateral described in the Loan
Documents.
New Principal hereby expressly assumes all the obligations of the
Borrower Principals (as defined in the Loan Agreement) under the Loan Agreement,
with the same force and effect as if New Principal had been specifically named
therein as the Borrower Principals. New Principal's assumption of the foregoing
obligations (a) is absolute, unconditional and is not subject to any defenses,
waivers, claims or offsets, (b) shall not be affected or impaired by any
agreement, condition, statement or representation of any person or entity other
than Lender. New Principal expressly agrees that it has read, approved and will
comply with and be bound by all of the terms, conditions, and provisions
contained in the Loan Agreement. Notwithstanding the foregoing, New Principal
does not assume any liability of Seller or Prior Principals for their fraud,
misrepresentation or other intentional torts.
7. No Representations of Lender. The parties hereto agree that (a)
Lender has made no representations or warranty, either express or implied
regarding the Property and has no responsibility whatsoever with respect to the
Property, its condition, or its use, occupancy or status, and (b) no claims
relating to the Property, its condition, or its use, occupancy or status, will
be asserted against Lender or its agents, employees, professional consultants,
affiliated entities, successors or assigns, either affirmatively or as a
defense.
8. Seller's Representations & Warranties. Seller hereby represents and
warrants that:
(a) Seller is the owner of the Property and is duly authorized to
execute, deliver and perform this Agreement.
(b) Any court or third-party approvals necessary for Seller to enter
into this Agreement have been obtained.
(c) The entities and/or persons executing this Agreement on behalf
of Seller are duly authorized to execute and deliver this
Agreement.
(d) This Agreement and the Loan Documents are in full force and
effect and the transactions contemplated therein constitute
valid and binding obligations of Seller, enforceable against
Seller in accordance with their terms and have not been modified
either orally or in writing.
(e) Lender has not waived any requirements of the Loan Documents nor
any of Lender's rights thereunder.
(f) There is no existing Event of Default or event or condition
that, with the giving of notice or passage of time or both,
would constitute an Event of Default.
5
(g) All taxes and assessments applicable to the Property that are
due and payable as of the Closing have been paid.
(h) The next payment for real property taxes applicable to the
Property is due on or before May 15, 2004.
(i) All representations and warranties of Seller in the Purchase
Agreement are true and correct.
(j) All representations and warranties referred to herein shall be
true as of the date of this Agreement and Closing and shall
survive Closing.
Lender is entitled to rely, and has relied, upon these representations
and warranties in the execution and delivery of this Agreement and all other
documents and instruments executed and delivered by Lender in connection with
this Agreement.
9. Prior Principals' Representations and Warranties. Each of the Prior
Principals hereby represents and warrants that:
(a) Any court or third-party approvals necessary for him to enter
into this Agreement has been obtained.
(b) The entities and/or persons executing this Agreement on behalf
of him is duly authorized to execute and deliver this Agreement.
(c) This Agreement and the Prior Guaranty are in full force and
effect and the transactions contemplated therein constitute
valid and binding obligations of him, enforceable against him in
accordance with their terms and have not been modified either
orally or in writing.
(d) Lender has not waived any requirements of the Loan Documents nor
any of Lender's rights thereunder.
(e) There is no existing Event of Default or event or condition
that, with the giving of notice or passage of time or both,
would constitute an Event of Default.
(f) All representations and warranties referred to herein shall be
true as of the date of this Agreement and Closing and shall
survive Closing.
Lender is entitled to rely, and has relied, upon these representations
and warranties in the execution and delivery of this Agreement and all other
documents and instruments executed and delivered by Lender in connection with
this Agreement.
10. Buyer's Representations and Warranties. Buyer hereby represents and
warrants that:
(a) Buyer is duly authorized to execute, deliver and perform this
Agreement, the Escrow Agreement and any other documents and
instruments executed by Buyer in connection herewith.
(b) Any court or third-party approvals necessary for Buyer to enter
into this Agreement and the Escrow Agreement have been obtained.
(c) The entities and/or persons executing this Agreement and the
Escrow Agreement on behalf of Buyer are duly authorized to
execute and deliver this Agreement and any other documents and
instruments executed by Buyer in connection herewith.
6
(d) This Agreement, the Escrow Agreement and any other documents and
instruments executed by Buyer in connection herewith and the
Loan Documents are in full force and effect and the transactions
contemplated therein constitute valid and binding obligations of
Buyer, enforceable against Buyer in accordance with their terms
and have not been modified either orally or in writing.
(e) There is no existing Event of Default or event or condition
that, with the giving of notice or passage of time or both,
would constitute an Event of Default.
(f) All taxes and assessments applicable to the Property that are
due and payable as of the Closing have been paid.
(g) The next payment for real property taxes applicable to the
Property is due on or before May 15, 2004.
(h) All representations and warranties of Buyer in the Purchase
Agreement are true and correct.
(i) There is no bankruptcy, receivership or insolvency proceeding
pending or, to the best of its knowledge, threatened against
Buyer.
(j) Buyer does not have any intention to do any of the following
prior to the Closing or within the 180 days following the
Closing (i) seek entry of any order for relief as debtor and a
proceeding under the Code (hereinafter defined), (ii) seek
consent to or not contest the appointment of a receiver or
trustee for itself or for all or any part of its property, (iii)
file a petition seeking relief under any bankruptcy,
arrangement, reorganization or other debtor relief laws, or (iv)
make a general assignment for the benefit of its creditors.
(k) All of the Required Insurance is in full force and effect, with
all required premiums paid, and contains the required
Mortgagee's Clause.
(l) All representations and warranties referred to herein shall be
true as of the date of this agreement and Closing and shall
survive Closing.
Lender is entitled to rely, and has relied, upon these representations
and warranties in the execution and delivery of this Agreement and all other
documents and instruments executed and delivered by Lender in connection with
this Agreement.
11. New Principal's Representations and Warranties. New Principal
hereby represents and warrants that:
(a) Any court or third-party approvals necessary for New Principal
to enter into the New Guaranty and this Agreement have been
obtained.
(b) The entities and/or persons executing the New Guaranty and this
Agreement on behalf of New Principal is duly authorized to
execute and deliver the New Guaranty and this Agreement.
(c) This Agreement and the New Guaranty are in full force and effect
and the transactions contemplated therein constitute valid and
binding obligations of New Principal, enforceable against New
Principal in accordance with their terms and have not been
modified either orally or in writing.
(d) To the best of its knowledge, Lender has not waived any
requirements of the Loan Documents nor any of Lender's rights
thereunder.
7
(e) There is no existing Event of Default or event or condition
that, with the giving of notice or passage of time or both,
would constitute an Event of Default.
(f) All representations and warranties referred to herein shall be
true as of the date of this agreement and Closing and shall
survive Closing.
Lender is entitled to rely, and has relied, upon these representations
and warranties in the execution and delivery of this Agreement and all other
documents and instruments executed and delivered by Lender in connection with
this Agreement.
12. Limited Release of Seller, Prior Principals and Xxxxxx X. Xxxxx.
Lender hereby releases Seller from all liability and obligations under the Loan
Documents arising from and after the Closing, including, but not limited to,
repayment of the Loan, but excepting, without limitation (i) any environmental
or other damage to the Property occurring prior to the Closing, (ii) any
obligations arising from the Purchase Agreement, (iii) any liability related to
or arising from Seller's acts or omissions occurring prior to the Closing, and
(iv) any liability related to or arising from fraudulent or tortious conduct,
including intentional misrepresentation of financial data presented to Lender.
Lender hereby does release Prior Principals and Xxxxxx X. Xxxxx from all
liabilities and obligations they may now or hereafter have under the Prior
Guaranty, except for any liability or obligation under said Prior Guaranty
attributable to any act or omission occurring prior to the date of Closing.
13. Release of Lender. Seller, for itself and for its agents,
employees, representatives, officers, directors, general partners, limited
partners, joint shareholders, beneficiaries, trustees, administrators,
subsidiaries, affiliates, employees, servants and attorneys (collectively, the
"Seller Releasing Parties") jointly and severally release and forever discharge
Lender and Midland Loan Services, Inc., and their respective successors,
assigns, partners, directors, officers, employees, agents, attorneys,
administrators, trustees, subsidiaries, affiliates, beneficiaries, shareholders
and representatives from all liabilities, obligations, costs, expenses, claims
and damages, at law or in equity, known or unknown, which any of the Seller
Releasing Parties may now or hereafter hold or claim to hold under common law or
statutory right, arising in any manner out of the Property, the Loan, any of the
Loan Documents or any of the documents, instruments or any other transactions
relating thereto or the transactions contemplated thereby. Without limiting the
generality of the foregoing, this release shall include the following matters:
(a) all aspects of this Agreement and the Loan Documents, any negotiations,
demands or requests with respect thereto, and (b) Lender's exercise or attempts
to exercise any of its rights under this Agreement or any of the Loan Documents,
at law or in equity. The Seller Releasing Parties agree that this release is a
full, final and complete release and that it may be pleaded as an absolute bar
to any or all suit or suits pending or which may thereafter be filed or
prosecuted by any of the Seller Releasing Parties, or anyone claiming by,
through or under any of the Seller Releasing Parties. The Seller Releasing
Parties agree that this release is binding upon each of them and their
respective agents, employees, representatives, officers, directors, general
partners, limited partners, joint shareholders, beneficiaries, trustees,
administrators, subsidiaries, affiliates, employees, servants and attorneys.
Prior Principals, for themselves and for their respective agents,
employees, representatives, officers, directors, general partners, limited
partners, joint shareholders, beneficiaries, trustees, administrators,
subsidiaries, affiliates, employees, servants and attorneys (collectively, the
"Prior Principal Releasing Parties") jointly and severally release and forever
discharge Lender and Midland Loan Services, Inc., and their respective
successors, assigns, partners, directors, officers, employees, agents,
attorneys, administrators, trustees, subsidiaries, affiliates, beneficiaries,
shareholders and representatives from all liabilities, obligations,
8
costs, expenses, claims and damages, at law or in equity, known or unknown,
which any of the Prior Principal Releasing Parties may now or hereafter hold or
claim to hold under common law or statutory right, arising in any manner out of
the Property, the Loan, any of the Loan Documents or any of the documents,
instruments or any other transactions relating thereto or the transactions
contemplated thereby. Without limiting the generality of the foregoing, this
release shall include the following matters: (a) all aspects of this Agreement
and the Loan Documents, any negotiations, demands or requests with respect
thereto, and (b) Lender's exercise or attempts to exercise any of its rights
under this Agreement or any of the Loan Documents, at law or in equity. The
Prior Principal Releasing Parties agree that this release is a full, final and
complete release and that it may be pleaded as an absolute bar to any or all
suit or suits pending or which may thereafter be filed or prosecuted by any of
the Prior Principal Releasing Parties, or anyone claiming by, through or under
any of the Prior Principal Releasing Parties. The Prior Principal Releasing
Parties agree that this release is binding upon each of them and their
respective agents, employees, representatives, officers, directors, general
partners, limited partners, joint shareholders, beneficiaries, trustees,
administrators, subsidiaries, affiliates, employees, servants and attorneys.
Buyer, for itself and for its agents, employees, representatives,
officers, directors, general partners, limited partners, joint shareholders,
beneficiaries, trustees, administrators, subsidiaries, affiliates, employees,
servants and attorneys (collectively, the "Buyer Releasing Parties") jointly and
severally release and forever discharge Lender and Midland Loan Services, Inc.,
and their respective successors, assigns, partners, directors, officers,
employees, agents, attorneys, administrators, trustees, subsidiaries,
affiliates, beneficiaries, shareholders and representatives from all
liabilities, obligations, costs, expenses, claims and damages, at law or in
equity, known or unknown, which arise out of any matters occurring prior to the
Closing in connection with the transactions contemplated hereby. The Buyer
Releasing Parties agree that this release is a full, final and complete release
and that it may be pleaded as an absolute bar to any or all suit or suits
pending or which may thereafter be filed or prosecuted by any of the Buyer
Releasing Parties, or anyone claiming by, through or under any of the Buyer
Releasing Parties. The Buyer Releasing Parties agree that this release is
binding upon each of them and their respective agents, employees,
representatives, officers, directors, general partners, limited partners, joint
shareholders, beneficiaries, trustees, administrators, subsidiaries, affiliates,
employees, servants and attorneys.
New Principal, for itself and for its agents, employees,
representatives, officers, directors, general partners, limited partners, joint
shareholders, beneficiaries, trustees, administrators, subsidiaries, affiliates,
employees, servants and attorneys (collectively, the "New Principal Releasing
Parties") jointly and severally release and forever discharge Lender and Midland
Loan Services, Inc., and their respective successors, assigns, partners,
directors, officers, employees, agents, attorneys, administrators, trustees,
subsidiaries, affiliates, beneficiaries, shareholders and representatives from
all liabilities, obligations, costs, expenses, claims and damages, at law or in
equity, known or unknown, which arise out of any matters occurring prior to the
Closing in connection with the transactions contemplated hereby. The New
Principal Releasing Parties agree that this release is a full, final and
complete release and that it may be pleaded as an absolute bar to any or all
suit or suits pending or which may thereafter be filed or prosecuted by any of
the New Principal Releasing Parties, or anyone claiming by, through or under any
of the New Principal Releasing Parties. The New Principal Releasing Parties
agree that this release is binding upon each of them and their respective
agents, employees, representatives, officers, directors, general partners,
limited partners, joint shareholders, beneficiaries, trustees, administrators,
subsidiaries, affiliates, employees, servants and attorneys.
9
14. Ratification and Confirmation of the Loan. Buyer agrees to perform
each and every obligation under the Loan Documents, as specifically modified by
this Agreement, in accordance with their respective terms and conditions. Buyer
ratifies, affirms, reaffirms, acknowledges, confirms and agrees that the Loan
Documents, as specifically modified by this Agreement, remain in full force and
effect and represent legal, valid and binding obligations of Buyer, enforceable
against Buyer in accordance with their terms. Buyer agrees that this Agreement
does not diminish, impair, release or relinquish the liens, powers, titles,
security interests and rights securing or guaranteeing payment of the Loan,
including the validity or first priority of the liens and security interests
encumbering the Property granted Lender by the Loan Documents.
15. Insurance. At all times Buyer shall comply with all terms of the
Loan Documents, including without limitation, the insurance requirements of the
Security Instrument. Although the Lender may accept certain evidence of
insurance for purposes of closing this Transfer and Assumption, Lender or its
servicer may at any time and from time to time request additional insurance
information from Buyer to ensure or monitor Buyer's compliance with the
insurance provisions of the Security Instrument and may request that Buyer
provide such coverages as Lender or its servicer may require consistent with the
terms of the Security Instrument. By entering into this Agreement, Lender
specifically does not waive or modify any of the insurance requirements under
the Security Instrument nor any of the remedies provided therein for failure to
secure such required insurance coverage.
16. Nonwaiver. The parties hereto acknowledge and agree that (a) any
performance or non-performance of the Loan Documents prior to the date of this
Agreement does not affect or diminish Lender's ability to require future
compliance with the Loan Documents, and (b) in the future, Lender will require
strict compliance with and performance of the Loan Documents, including, without
limitation, any reporting, insurance or financial covenants contained therein.
Nothing contained herein shall be construed as a waiver of any of Lender's
rights or remedies with respect to any default under this Agreement or any Loan
Document.
17. Bankruptcy of Buyer or New Principal. Buyer covenants and agrees
that in the event Buyer shall (i) file any petition with any bankruptcy court or
be the subject of any petition under the United States Bankruptcy Code (11
U.S.C. ss.101 et seq., the "Code"), (ii) file or be the subject of any petition
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future federal or state act
or law relating to bankruptcy, insolvency, or other relief for debtors, (iii)
have sought or consented to or acquiesced in the appointment of any trustee,
receiver, conservator, or liquidator, or (iv) be the subject of any order,
judgment, or decree entered by any court of competent jurisdiction approving a
petition filed against such party for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under any
present or future federal or state act or law relating to bankruptcy,
insolvency, or relief for debtors, Lender shall thereupon be entitled, and Buyer
irrevocably consent, to the entry of an order by a bankruptcy court granting to
Lender relief from any automatic stay imposed by Section 362 of the Code, or
otherwise, on or against the exercise of the rights and remedies otherwise
available to Lender as provided in the Loan Documents, this Agreement or as
otherwise provided by law or in equity, and Buyer irrevocably waives its right
to object to, attempt to enjoin or otherwise interfere with such relief and the
exercise and enforcement by Lender of its rights and remedies following entry of
such order. Without limiting the generality of the immediately preceding
sentence, Buyer agrees that Lender will be entitled to and it consents to
immediate relief from the automatic stay imposed by the Code to allow Lender to
take any and all actions necessary, desirable or appropriate to enforce any
rights Lender may have under the Loan Documents, including, but not limited to,
the right to possession of the Property, collection of rents, and/or the
commencement or continuation of an action to foreclose Lender's liens
10
and security interests. Buyer further agrees that the filing of any petition
for relief under the Code which postpones, prevents, delays or otherwise hinders
Lender's efforts to collect the amounts due under the Note or to liquidate any
of the collateral therefor shall be deemed to have been filed in bad faith and,
therefore, shall be subject to prompt dismissal or conversion to a liquidation
case under the Code upon motion therefor by Lender. Further, Buyer agrees that
it will not seek, apply for or cause the entry of any order enjoining, staying,
or otherwise prohibiting or interfering with Lender's obtaining an order
granting relief from the automatic stay and enforcement of any rights which
Lender may have under the Loan Documents, including, but not limited to,
Lender's right to possession of the Property, collection of rents and/or the
commencement or continuation of an action to foreclose Lender's liens and
security interests under the Loan Documents.
New Principal covenants and agrees that in the event New Principal
shall (i) file any petition with any bankruptcy court or be the subject of any
petition under the Code, (ii) file or be the subject of any petition seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future federal or state act
or law relating to bankruptcy, insolvency, or other relief for debtors, (iii)
have sought or consented to or acquiesced in the appointment of any trustee,
receiver, conservator, or liquidator, or (iv) be the subject of any order,
judgment, or decree entered by any court of competent jurisdiction approving a
petition filed against such party for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under any
present or future federal or state act or law relating to bankruptcy,
insolvency, or relief for debtors, Lender shall thereupon be entitled, and New
Principal irrevocably consents, to the entry of an order by a bankruptcy court
granting to Lender relief from any automatic stay imposed by Section 362 of the
Code, or otherwise, on or against the exercise of the rights and remedies
otherwise available to Lender as provided in the Loan Documents, this Agreement
or as otherwise provided by law or in equity, and New Principal irrevocably
waives its right to object to, attempt to enjoin or otherwise interfere with
such relief and the exercise and enforcement by Lender of its rights and
remedies following entry of such order. Without limiting the generality of the
immediately preceding sentence, New Principal agrees that Lender will be
entitled to and it hereby consents to immediate relief from the automatic stay
imposed by the Code to allow Lender to take any and all actions necessary,
desirable or appropriate to enforce any rights Lender may have under the Loan
Documents, including, but not limited to, the right to possession of the
Property, collection of rents, and/or the commencement or continuation of an
action to foreclose Lender's liens and security interests. New Principal further
agrees that the filing of any petition for relief under the Code which
postpones, prevents, delays or otherwise hinders Lender's efforts to collect the
amounts due under the Note or to liquidate any of the collateral therefor shall
be deemed to have been filed in bad faith and, therefore, shall be subject to
prompt dismissal or conversion to a liquidation case under the Code upon motion
therefor by Lender. Further, New Principal agrees that it will not seek, apply
for or cause the entry of any order enjoining, staying, or otherwise prohibiting
or interfering with Lender's obtaining an order granting relief from the
automatic stay and enforcement of any rights which Lender may have under the
Loan Documents, including, but not limited to, Lender's right to possession of
the Property, collection of rents and/or the commencement or continuation of an
action to foreclose Lender's liens and security interests under the Loan
Documents.
18. Compliance with Interest Law. It is the intention of the parties
hereto to conform strictly to any present or future law which has application to
the interest and other charges under the Loan Documents (the "Interest Law").
Accordingly, notwithstanding anything to the contrary in the Loan Documents, the
parties hereto agree that the aggregate amount of all interest or other charges
taken, reserved, contracted for, charged or received under the Loan Documents or
otherwise in connection with the Loan shall under no circumstances exceed the
maximum amount of interest allowed by the Interest Law. If any excess interest
is provided for in the Loan Documents, then any such excess shall be deemed a
mistake and canceled automatically and, if theretofore paid, shall be credited
against the indebtedness evidenced and secured by the
11
Loan Document (the "Indebtedness") (or if the Indebtedness shall have been paid
in full, refunded by Lender), and the effective rate of interest under the Loan
Documents shall be automatically reduce to the maximum effective contract rate
of interest that Lender may from time to time legally charge under the then
applicable Interest Law with respect to the Loan. To the extent permitted by the
applicable Interest Law, all sums paid or agreed to be paid to Lender for the
use, forbearance or detention of the Indebtedness shall be amortized, prorated,
allocated and spread throughout the full term of the Loan.
19. Further Assurances. The parties hereto agree to do any act or
execute any additional documents required by Lender, from time to time, to
correct errors in the documenting of the Transfer and Assumption, to effectuate
the purposes of this Agreement or to better assure, convey, assign, transfer,
perfect or confirm unto Lender the property and rights intended to be given it
in the Loan Documents.
20. Liability. If any party hereto consists of more than one person,
the obligations and liabilities of each such person hereunder shall be joint and
several. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns forever.
21. Severability. If any term, covenant or condition of this Agreement
is held to be invalid, illegal or unenforceable in any respect, this Agreement
shall be construed without such term, covenant or condition and the validity or
enforceability of the remaining terms, covenants or conditions shall not in any
way be affected.
22. Applicable Law; Jurisdiction. This Agreement shall be governed and
construed in accordance with the laws of the state in which the Property is
located. The parties hereto submit to personal jurisdiction in the state courts
located in said state and the federal courts of the United States of America
located in said state for the enforcement of any obligations hereunder and waive
any and all personal rights under the law of any other state to object to
jurisdiction within such state for the purposes of any action, suit, proceeding
or litigation to enforce such obligations.
23. No Restrictions on Performance. The execution and delivery of this
Agreement and compliance with the provisions hereof, will not conflict with, or
constitute a breach of or a default under any agreement or other instrument to
which any party hereto is a party or by which it is bound.
24. Definitions. Unless the context clearly indicates a contrary intent
or unless otherwise specifically provided herein, words used in this Agreement
(including pronouns) shall include the corresponding masculine, feminine or
neuter forms, and the singular form such words shall include the plural and vice
versa. The words "included", "includes" and "including" shall each be deemed to
be followed by the phrase, "without limitation." The words "herein", "hereby",
"hereof", and "hereunder" shall each be deemed to refer to this entire Agreement
and not to any particular paragraph, article or section hereof. Notwithstanding
the foregoing, if any law is amended so as to broaden the meaning of any term
defined in it, such broader meaning shall apply subsequent to the effective date
of such amendment. Where a defined term derives its meaning from a statutory
reference, any regulatory definition is broader than the statutory reference and
any reference or citation to a statute or regulation shall be deemed to include
any amendments to that statute or regulation and judicial and administrative
interpretations of it.
25. Securities Act of 1933. Neither Seller, Buyer, New Principal nor
any agent acting for any of them has offered the Note or any similar obligation
for sale to or solicited any offers to buy the Note or any similar obligation
from any person or party other than Lender, and neither Seller, Buyer, New
Principal nor any agent acting for any of them will take any action which would
subject the sale of the Note to the provisions of Section 5 of the Securities
Act of 1933, as amended.
12
26. Compliance with ERISA. As of the date of this Agreement, neither
Seller nor Buyer maintains any employee benefit plan which require compliance
with ERISA. If at any time Buyer or New Principal shall have or shall institute
any employee benefit plans, they shall at all times comply with the requirements
of ERISA.
27. Sole Discretion of Lender. Whenever pursuant to this Agreement,
Lender exercises any right given to it to approve or disapprove, or any
arrangement or term is to be satisfactory to Lender, Lender's decision to
approve or disapprove or to decide that arrangements or terms are satisfactory
or not satisfactory shall be in the sole and absolute discretion of Lender and
shall be final and conclusive, except as may be otherwise expressly and
specifically provided herein.
28. Headings, Etc. The headings and captions of various paragraphs of
this Agreement are for convenience of reference only and are not to be construed
as defining or limiting, in any way, the scope or intent of the provisions
hereof.
29. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same Agreement.
30. Integration, Survival. This Agreement and the Loan Documents embody
the entire agreement by and between the parties hereto with respect to the Loan,
and any and all prior correspondence, discussions or negotiations are deemed
merged therein. Except as otherwise specifically provided herein, all
obligations of any party contained in this Agreement or the Loan Documents shall
survive the Closing and Lender hereby preserves all of its rights against all
persons or entities and all collateral securing the Loan, including, without
limitation, the Property.
31. No Oral Change. This Agreement, and any provisions hereof, may not
be modified, amended, waived, extended, changed, discharged or terminated orally
or by any act or failure to act on the part of any party hereto, but only by an
agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
32. Notices. Except as otherwise specified herein, any notice, consent,
request or other communication required or permitted hereunder shall be in
writing and shall be deemed properly given if delivered in accordance with the
notice requirements contained in the Loan Documents using the address for a
party hereto set forth at the top of the first page of this Agreement.
33. Managing Agent. The Seller and the Buyer have requested, (i) upon a
transfer of title to the Property from Seller to Buyer that the Management
Agreement between Seller and Xxxxxxx Xxxxxx Development Corporation be
terminated, and (ii) that the Buyer be permitted to execute a Management
Agreement with Cedar Shopping Centers Partnership, LP for management and
operation of the Property. The Lender hereby agrees to the foregoing items (i)
and (ii). On the date hereof, Cedar Shopping Centers Partnership, LP, Buyer and
Lender shall enter into a Conditional Assignment of Management Agreement.
34. Impound Accounts. The Seller hereby assigns to the Buyer, its
successors and assigns, all of its rights, title and interest in and to the
reserve accounts, impound accounts and/or Escrow Deposits which have been
established with Lender for the payment of taxes, assessments, repairs and
replacements, production of financial reports, tenant rollover, tenant
improvements and insurance, and the Lender and Midland Loan Services, Inc., are
hereby released from any further responsibility to the Seller in connection with
such accounts.
13
35. Single Purpose Entity. Until the indebtedness provided in the Note
has been paid in full to Lender and Buyer, its successors and/or assigns have
satisfied all covenants, conditions and agreements contained in the Loan
Documents (collectively, the "Debt"), Buyer shall not incur any debt, secured or
unsecured, direct or contingent (including guaranteeing any obligation), other
than the Debt, excepting trade payables (which must be paid when due) incurred
by Buyer in the ordinary course of its business of owning and operating the
Property.
36. Compliance with Anti-Terrorism Orders.
(i) Buyer will not permit the transfer of any interest in Buyer to any
person or entity who is listed on the Lists or whose beneficial owners are
listed on the specially Designated Nationals and Blocked Persons List (the
"List") maintained by the Office of Foreign Asset Control, Department of the
Treasury ("OFAC") pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079
(September 25, 2001) (the "Order") and/or any other list of terrorists or
terrorist organizations maintained pursuant to any of the rules and regulations
of OFAC or pursuant to any other applicable Executive Orders (such lists are
collectively referred to as the "Lists").
(ii) Buyer will not knowingly enter into a Lease with any party who is
either (A) listed on the Lists or (B) engaged in illegal activities.
(iii) Buyer shall immediately notify Lender if it becomes known to
Buyer that any member or beneficial owner of Buyer is listed on the Lists or (A)
is indicted of, or (B) arraigned and held over on charges involving money
laundering or predicate crimes to money laundering.
(iv) Buyer shall immediately notify Lender if it becomes known to Buyer
that any tenant at the Property is listed on the Lists or (A) is convicted on,
(B) pleads nolo contendere to, (C) is indicted on or (D) is arraigned and held
over on charges involving money laundering or predicate crimes to money
laundering.
37. WAIVER OF JURY TRIAL. THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON THE LOAN OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR THE LOAN DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR LENDER'S CONSENT TO THE TRANSFER AND
ASSUMPTION.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day, month and year
first above written.
WITNESS: BUYER:
Cedar Townfair, LLC,
a Delaware limited liability company
By: Cedar Shopping Centers Partnership, L.P.
a Delaware limited partnership
its Sole Member
By: Cedar Shopping Centers, Inc.
a Maryland corporation
its Sole General Partner
_______________________ By:_________________________
Print Name: Xxx X. Xxxxxx
Title: President
Tax ID #: 00-0000000
NEW PRINCIPAL:
Cedar Shopping Centers, Inc.
a Maryland corporation
_________________________ By:____________________________
Print Name: Xxx X. Xxxxxx
Title: President
15
WITNESS: SELLER:
Townfair Center Associates,
a Pennsylvania general partnership
By: X.X. Xxxx Incorporated,
a Pennsylvania corporation
a General Partner
_________________ By:__________________________
Print Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
By: Xxxxxxx Xxxxxx Limited Partnership #2,
a Pennsylvania limited partnership
a General Partner
By: Xxxxxxx Xxxxxx Development Corporation,
a Pennsylvania corporation
its General Partner
_________________ By:__________________________
Name: Xxx X. XxXxxxxx
Title: Vice President
PRIOR PRINCIPALS:
_________________ _________________________________
Print Name: Xxxxxxxx X. Xxxx, Xx.
_________________ _________________________________
Print Name: Xxxxx X Xxxxxxxxx
_________________ _________________________________
Print Name: Xxx X. XxXxxxxx
16
WITNESS: LENDER:
Xxxxx Fargo Bank N.A. f/k/a Norwest Bank Minnesota,
National Association, as Trustee for the registered holders
of NationsLink Funding Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-2
By: Midland Loan Services, Inc.,
a Delaware corporation,
Its Attorney-in-Fact
_________________ By:_________________________
Name:
Title:
ACKNOWLEDGMENTS
STATE OF KANSAS )
) ss.
COUNTY OF XXXXXXX )
This instrument was acknowledged before me on March _____, 2004, by
__________________ as ____________________ of Midland Loan Services, Inc., a
Delaware corporation, the Master Servicer and Attorney-in-fact for Xxxxx Fargo
Bank N.A. f/k/a Norwest Bank Minnesota, National Association, as Trustee for the
registered holders of NationsLink Funding Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-2.
____________________________________________
Print Name:_________________________________
Notary Public in and for said
County and State
My Appointment Expires:
_______________________________
00
XXXXX XX XXX XXXX :
: ss.
COUNTY OF NASSAU :
On this _______ day of March, 2004, before me, an officer duly
authorized in the County and State aforesaid to take acknowledgments, personally
appeared Xxx X. Xxxxxx, the President of Cedar Shopping Centers, Inc., a
Maryland corporation, the sole General Partner of Cedar Shopping Centers
Partnership, L.P., a Delaware limited partnership, the sole member of Cedar
Townfair, LLC, a Delaware limited liability company, to me known to be the
individuals described in and who executed the foregoing instrument, and that she
acknowledged the execution thereof to be her free act and deed as such Vice
President thereunto duly authorized, and that the said instrument is the act and
deed of said corporation, limited partnership and limited liability company.
Witness my hand and official seal in the above County and State.
_____________________________________
Notary Public
[Seal]
My commission expires:_______________
STATE OF NEW YORK :
:ss.
COUNTY OF NASSAU :
On this _______ day of March, 2004, before me, an officer duly
authorized in the County and State aforesaid to take acknowledgments, personally
appeared Xxx X. Xxxxxx, the President of Cedar Shopping Centers, Inc., a
Maryland corporation, to me known to be the individuals described in and who
executed the foregoing instrument, and that she acknowledged the execution
thereof to be her free act and deed as such Vice President thereunto duly
authorized, and that the said instrument is the act and deed of said
corporation.
Witness my hand and official seal in the above County and State.
_____________________________________
Notary Public
[Seal]
My commission expires:_______________
18
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF :
On this _______ day of March, 2004, before me, an officer duly
authorized in the County and Commonwealth aforesaid to take acknowledgments,
personally appeared Xxxxxxx X. Xxxxx, the Executive Vice President of X.X. Xxxx
Incorporated, a Pennsylvania corporation, a general partner of Townfair Center
Associates, a Pennsylvania general partnership, to me known to be the
individuals described in and who executed the foregoing instrument, and that he
acknowledged the execution thereof to be his free act and deed as such Executive
Vice President thereunto duly authorized, and that the said instrument is the
act and deed of said corporation and partnership.
Witness my hand and official seal in the above County and Commonwealth.
_____________________________________
Notary Public
[Seal]
My commission expires:_______________
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF :
On this _______ day of March, 2004, before me, an officer duly
authorized in the County and Commonwealth aforesaid to take acknowledgments,
personally appeared Xxx X. XxXxxxxx, the Vice President of Xxxxxxx Xxxxxx
Development Corporation, a Pennsylvania corporation, the general partner of
Xxxxxxx Xxxxxx Limited Partnership #2, a Pennsylvania limited partnership, a
general partner of Townfair Center Associates, a Pennsylvania general
partnership, to me known to be the individuals described in and who executed the
foregoing instrument, and that he acknowledged the execution thereof to be his
free act and deed as such Vice President thereunto duly authorized, and that the
said instrument is the act and deed of said corporation, limited partnership and
partnership.
Witness my hand and official seal in the above County and Commonwealth.
_____________________________________
Notary Public
[Seal]
My commission expires:_______________
19
COMMONWEALTH OF PENNSYLVANIA :
: ss.:
COUNTY OF :
On this _____ day of March, 2004, before me, a Notary Public in and
for___________ County, Pennsylvania, came the above-named Xxxxxxxx X. Xxxx, Xx.,
and acknowledged the foregoing deed to be his free act and deed, and desired the
same to be recorded as such.
_____________________________________
Notary Public
My commission expires:_______________
COMMONWEALTH OF PENNSYLVANIA :
: ss.:
COUNTY OF :
On this _____ day of March, 2004, before me, a Notary Public in and
for_______ County, Pennsylvania, came the above-named Xxxxx X. Xxxxxxxxx, and
acknowledged the foregoing deed to be his free act and deed, and desired the
same to be recorded as such.
_____________________________________
Notary Public
My commission expires:_______________
COMMONWEALTH OF PENNSYLVANIA :
: ss.:
COUNTY OF :
On this _____ day of March, 2004, before me, a Notary Public in and
for_______ County, Pennsylvania, came the above-named Xxx X. XxXxxxxx, and
acknowledged the foregoing deed to be his free act and deed, and desired the
same to be recorded as such.
_____________________________________
Notary Public
My commission expires:_______________
20
EXHIBIT A
Legal Description
21
Midland\299
Assumption 4 21
