COLLATERAL ASSIGNMENT OF LEASES AND RENTS
-----------------------------------------
This Collateral Assignment of Leases and Rents (hereinafter, this
"Assignment") made as of this ___ day of March, 2004 by Xxxxx Xxxxxx, LLC, a
Delaware limited liability company having an address at 00 Xxxxx Xxxxxx Xxxxxx,
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (hereinafter, together with any successors and
assigns, the "Assignor") to FLEET NATIONAL BANK, a national banking association
having an address at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
as agent under a certain Loan Agreement (hereinafter, the "Loan Agreement")
dated January 30, 2004, by and among CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.
(hereinafter, the "Borrower", which Borrower is not a party to this Assignment),
Fleet National Bank and the other lending institutions which are or become
parties to the Loan Agreement (Fleet National Bank and the other lending
institutions which are or become parties to the Loan Agreement are collectively
referred to as the "Lenders" and individually as the "Lender"), and Fleet
National Bank, as Agent (hereinafter, together with any successors and assigns,
the "Agent"), as the holder of this Assignment, and the Obligations (as defined
below) secured hereby.
W I T N E S S E T H T H A T:
- - - - - - - - - - - - - -
1. Grant of Assignment. This Assignment is granted pursuant to the terms,
provisions and conditions of the Loan Agreement. Capitalized terms used
herein which are not otherwise specifically defined shall have the same
meaning herein as in the Loan Agreement.
Assignor, for good and valuable consideration, receipt of which is
hereby acknowledged, hereby grants, transfers and assigns to Agent and the
Lenders, and grants to Agent and the Lenders a continuing pledge of and security
interest in, the entire present and future interest of Assignor in, to and
under: (a) all leases, subleases, rental agreements or other occupancy
agreements to which Assignor is a party (hereinafter, the "Leases") now or
hereafter in existence, with respect to all or any portion of the real property
located at the intersection of Route 255 and Commons Drive, Xxxxx Township,
Clearfield County, Pennsylvania (hereinafter, the "Property"); (b) all rents,
income and profits of any kind arising from such interests in the Leases and any
renewals or extensions thereof for the use and occupation of all or any portion
of the Property; (c) all guaranties of and security for the Leases; and (d) all
proceeds of the foregoing.
Assignor is the owner of the Property. A legal description of the
Property is annexed hereto as Exhibit A.
2. Obligations Secured. This Assignment is made for the purpose of
securing the "Obligations" as follows:
A. The Guaranteed Obligations, as such term is defined in that
certain Guaranty of even date executed by the Assignor in favor of the
Agent on behalf of the Lenders;
B. The payment, performance, discharge and satisfaction of
each covenant, warranty, representation, undertaking and condition to
be paid, performed, satisfied and complied with by Assignor under and
pursuant to this Assignment, the Guaranty, the Loan Documents, or any
other document executed in connection therewith;
-1-
C. The payment of all costs, expenses, legal fees and
liabilities incurred by Agent or any Lender in connection with the
enforcement of any of Agent's or any Lender's rights or remedies under
this Assignment, the Guaranty, the Loan Documents, or any other
instrument, agreement or document which evidences or secures any other
obligations or collateral therefor, whether now in effect or hereafter
executed; and
D. The payment, performance, discharge and satisfaction of all
other liabilities and obligations of Assignor to Agent and the Lenders,
whether now existing or hereafter arising, direct or indirect, absolute
or contingent, and including, but without limitation express or implied
upon the generality of the foregoing, each such liability and
obligation of Assignor under this Assignment, the Guaranty, the Loan
Documents, and each amendment, extension, modification, replacement or
recasting of any one or more of the instruments, agreements and
documents referred to herein or therein or executed in connection with
the transactions contemplated hereby or thereby.
3. Warranties and Representations. Assignor warrants and represents that
it is and shall be in the future the sole owner of the entire interests
described in Section 1 above and that no rent reserved in the Leases
has been or will be in the future otherwise assigned or anticipated,
and that no rent for any period subsequent to the date of this
Assignment will be collected more than one (1) month in advance except
for security deposits and last month's rents taken in the usual course
of business pursuant to Leases.
Assignor further warrants and represents that as of the date hereof:
(a) true and complete copies, together with all amendments and modifications, of
all Leases presently in full force and effect have been delivered to Agent; (b)
to Assignor's knowledge, and except as disclosed to Agent no default exists on
the part of any of the lessees or tenants or of Assignor as lessor in the
performance on the part of either of the terms, covenants, provisions or
agreements in the Leases contained; (c) except as disclosed to Agent Assignor
knows of no condition which with the giving of notice or the passage of time or
both would constitute a default on the part of any of the lessees or Assignor
under the Leases; and (d) no security deposit or advance rental payment has been
made by any lessee under the Leases except as has been previously disclosed by
Assignor to Agent, or as may be specifically designated in the copies of the
Leases previously furnished to Agent.
4. Covenants. The Assignor shall comply with the terms and conditions of
the Loan Agreement with respect to all present and future Leases of the
Property.
5. Further Terms, Covenants and Conditions. This Assignment is made on the
following terms, covenants and conditions:
5.1 Prior to Default. So long as no Event of Default (as defined in the
Loan Agreement) exists (hereinafter, collectively, a "Continuing Default"):
Assignor shall have the right and license to manage and operate the Property and
to collect at the time of, but not more than one (1) month prior to (except for
security deposits and first or last month's rent taken in the usual course of
business pursuant to the Leases), the date provided for the payment thereof, all
rents, income and profits arising under the Leases or from the premises
described therein and, subject to the provisions of the other Loan Documents, to
retain, use and enjoy the same.
5.2 After Default. At any time when a Continuing Default exists, Agent,
without in any way waiving such default, may at its option, without notice
(except for the notice of default), and without regard to the adequacy of the
security for the Obligations secured hereby and by the Mortgage revoke the right
and license granted above to Assignor and:
-2-
(i) Authorize and direct the lessees named in any existing
Leases or any other or future lessees or occupants of the Property,
upon receipt from Agent of written notice to the effect that Agent is
or the Lenders are then the holder of the Mortgage and this Assignment
and that a Continuing Default exists thereunder, to pay over to Agent
all rents, income and profits arising or accruing under the Leases or
from the Property and to continue to do so until otherwise notified in
writing by Agent. Assignor agrees that every lessee and occupant shall
have the right to rely upon any such statement and request by Agent
that lessee or occupant shall pay such rents to Agent without any
obligation or right to inquire as to whether such Continuing Default
actually exists notwithstanding any notice from or claim of Assignor to
the contrary and that Assignor shall have no right or claim against
lessees or occupants for any such rent so paid by lessees or occupants
to Agent after such notice to the lessee or occupant by Agent;
(ii) Either in person or by agent, with or without bringing
any action or proceedings, or by a receiver appointed by a court, take
possession of the Property and have, hold, manage, lease and operate
the same on such terms and for such period of time as Agent may
reasonably deem proper and, either with or without taking possession of
the Property in its own name, demand, sue for, or otherwise collect and
receive, all rents, income and profits of the Property, including those
past due and unpaid, with full power to make from time to time all
improvements, alterations, renovations, repairs and replacements
thereto or thereof as may seem proper to Agent; and
(iii) Apply such rents, income and profits to the payment of:
(a) all reasonable expenses of managing the
Property including, without being limited
thereto, the salaries, fees and wages of a
managing agent and such other employees as
Agent may deem necessary, and all expenses of
operating and maintaining the Property,
including, without being limited thereto, all
taxes, charges, claims, assessments, water
rents, sewer rents and other liens, and
premiums for all insurance which Agent may deem
necessary, the payment or refund of security
deposits, or interest thereon, and the cost of
all improvements, alterations, renovations,
repairs or replacements, and all expenses
incident to taking and retaining possession of
the Property; and
(b) all sums which Assignor is responsible to pay
under the Mortgage, and the principal sum,
interest and indebtedness secured hereby and by
the Mortgage, and all other Obligations
together with all reasonable costs and
reasonable attorneys' fees, in such order of
priority as to any of the items mentioned in
this clause (b), as Agent in its sole
discretion may determine, any statute, law,
custom, or use to the contrary notwithstanding.
The exercise by Agent of the option granted it in this Section 5.2 and
the collection of the rents, income and profits and the application
thereof as herein provided shall not be considered a waiver by Agent of
any Default under the other Loan Documents, or the Guaranty, or the
Leases, or this Assignment.
-3-
5.3 Continuing Effect. Upon the satisfaction of the Obligations secured
hereby and by the Mortgage, (a) this Assignment shall become and be void and of
no effect, but the affidavit of any officer, agent, or attorney of Agent or the
Lenders made in good faith showing any part of said Obligations to remain
unsatisfied shall be and constitute conclusive evidence of the validity,
effectiveness and continuing force of this Assignment and any person may, and is
hereby authorized to, rely thereon and (b) Agent shall execute termination of
this Assignment at Assignor's cost. The discharge of record of the Mortgage
dated as of even date given by Assignor to Agent shall constitute a discharge of
this Assignment and a release of Agent's and the Lenders' interest in the Leases
and rents assigned hereby and the reassignment thereof (without recourse to
Agent or any Lender) to Assignor and all those claiming of record by, through or
under Assignor.
5.4 No Waiver; Concurrent Rights. Nothing contained in this Assignment
and no act done or omitted by Agent pursuant to the powers and rights granted it
hereunder shall be deemed to be a waiver by Agent of its rights and remedies
hereunder or any one or more of the other Loan Documents, and this Assignment is
made and accepted without prejudice to any of the rights and remedies possessed
by Agent under the terms of any of the other Loan Documents. The right of Agent
to collect said principal sums, interest and indebtedness and to enforce any
other security therefore held by it may be exercised by Agent either prior to,
simultaneously with, or subsequent to any action taken by it hereunder.
5.5 No Liability. Neither Agent nor any Lender shall be liable for any
loss sustained by Assignor resulting from Agent's failure to let the Property
after default or from any other act or omission of Agent in managing the
Property after default unless such loss is caused by the gross negligence or
willful misconduct of Agent. Agent shall not be obligated to perform or
discharge, nor does Agent hereby undertake to perform or discharge, any
obligation, duty or liability under the Leases, or under or by reason of this
Assignment, and Assignor shall, and does hereby agree to, indemnify Agent and
each of the Lenders for, and to defend and hold Agent and each of the Lenders
harmless from, any and all liability, loss or damage which may or might be
incurred under or by reason of this Assignment and from any and all claims and
demands whatsoever which may be asserted against Agent or any Lender by reason
of any alleged obligations or undertakings on its part to perform or discharge
any of the terms, covenants or agreements contained in the Leases. Should Agent
or any Lender incur any such liability under the Leases or under or by reason of
this Assignment, or in defense of any such claims or demands, the amount
thereof, including costs, expenses and reasonable attorneys' fees shall be
secured hereby and by the Mortgage and by the other collateral for the
Obligations and Assignor shall reimburse Agent and the Lenders therefor within
thirty (30) days after demand and upon the failure of Assignor so to do, Agent
may, at its option, declare all sums secured hereby immediately due and payable.
It is further understood that this Assignment shall not operate to place
responsibility for the control, care, management or repair of said Property upon
Agent, nor for the carrying out of any of the terms and conditions of the
Leases; nor shall it operate to make Agent responsible or liable for any waste
committed on the Property by tenants or any other parties, or for any dangerous
or defective condition of the Property, or for any negligence in the management,
upkeep, repair or control of said Property resulting in loss or injury or death
to any tenant, licensee, employee or stranger. Notwithstanding the foregoing,
Agent and the Lenders shall not be indemnified on account of, or exculpated from
acts of, their own gross negligence or willful misconduct.
5.6 Effect of Foreclosure Deed. Unless Agent otherwise elects in the
instance of a Lease which is subordinate to the Mortgage and is thus terminated
by the foreclosure, upon the issuance of any deed or deeds pursuant to a
foreclosure of the Mortgage, all right, title and interest of Assignor in and to
the Leases shall, by virtue of this instrument and such deed or deeds, thereupon
vest in and become the absolute property of the grantee or grantees in such deed
or deeds without any further act or assignment by Assignor. Assignor hereby
irrevocably appoints Agent, and its successors and assigns, as its agent and
-4-
attorney in fact to execute all instruments of assignment for further assurance
in favor of such grantee or grantees in such deed or deeds as may be necessary
or desirable for such purpose.
5.7 Rights Contained in Mortgage. This Assignment is intended to be
supplementary to, and not in substitution for, or in derogation of, any
assignment of rents to secure the Obligations contained in the Mortgage or in
any other Loan Document. In the event of any conflict between this Assignment
and any of the other Loan Documents, the provisions of this Assignment shall
govern.
5.8 Notices. Any notice or communications in connection herewith shall
be sufficiently given only if given in the manner provided for in the Loan
Agreement.
5.9 Grace Periods and Notice. The grace period and notice provisions
set forth in the Loan Agreement shall be applicable to any Default under this
Assignment.
5.10 Setoff. Subject to the terms of this Section 5.10, Assignor hereby
grants to Agent and each of the Lenders, a lien, security interest and right of
setoff as security for all liabilities and obligations to Agent and the Lenders,
whether now existing or hereafter arising, upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Agent or any Lender or any entity under the control of
Fleet Financial Group, Inc., or in transit to any of them. At any time, from and
after the occurrence of and during the continuance of an Event of Default, Agent
or any Lender may set off the same or any part thereof and apply the same to any
liability or obligation of Assignor even though unmatured and regardless of the
adequacy of any other collateral securing the Loan. Within five (5) Business
Days of making any such set-off, Agent agrees to notify Assignor thereof,
provided that the failure by Agent to give such notice shall not affect the
validity of such set-off. ANY AND ALL RIGHTS TO REQUIRE AGENT OR ANY LENDER TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH
SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF THE ASSIGNOR, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
6. Governing Law; Consent to Jurisdiction; Mutual Waiver of Jury Trial.
6.1 Substantial Relationship. It is understood and agreed that all of
the Loan Documents were delivered in the Commonwealth of Massachusetts, which
Commonwealth the parties agree has a substantial relationship to the parties and
to the underlying transactions embodied by the Loan Documents.
6.2 Place of Delivery. Assignor agrees to furnish to Agent at Agent's
office in Boston, Massachusetts all further instruments, certifications and
documents to be furnished hereunder, if any.
6.3 Governing Law. This Assignment, except as otherwise provided in
Section 6.4, and each of the other Loan Documents shall in all respects be
governed, construed, applied and enforced in accordance with the internal laws
of the Commonwealth of Massachusetts without regard to principles of conflicts
of law, except insofar as formation of the Assignor under Delaware law requires
Delaware law to apply with respect to matters of authorization to enter into the
transaction contemplated by this Assignment.
6.4 Exceptions. Notwithstanding the foregoing choice of law:
-5-
(a) the procedures governing the enforcement by
Agent and each of the Lenders of its
foreclosure and other remedies against Assignor
under the Mortgage and under the other Loan
Documents with respect to the Property or other
assets situated in the Commonwealth of
Pennsylvania, including by way of illustration,
but not in limitation, actions for foreclosure,
for injunctive relief or for the appointment of
a receiver shall be governed by the laws of the
Commonwealth of Pennsylvania;
(b) Agent and each of the Lenders shall comply with
applicable law in the Commonwealth of
Pennsylvania to the extent required by the law
of such jurisdiction in connection with the
foreclosure of the security interests and liens
created under the Mortgage and the other Loan
Documents with respect to the Property or other
assets situated in the Commonwealth of
Pennsylvania; and
(c) provisions of Federal law and the law of the
Commonwealth of Pennsylvania shall apply in
defining the terms Hazardous Materials,
Environmental Legal Requirements and Legal
Requirements applicable to the Property as such
terms are used in the Mortgage, the
Environmental Indemnity and the other Loan
Documents.
Nothing contained herein or any other provisions of the Loan Documents
shall be construed to provide that the substantive laws of the
Commonwealth of Pennsylvania shall apply to any parties' rights and
obligations under any of the Loan Documents, which, except as expressly
provided in clauses (a), (b) and (c) of this Section 6.4, are and shall
continue to be governed by the substantive law of Commonwealth of
Massachusetts. In addition, the fact that portions of the Loan
Documents may include provisions drafted to conform to the law of the
Commonwealth of Pennsylvania is not intended, nor shall it be deemed,
in any way, to derogate the parties' choice of law as set forth or
referred to in this Assignment, or in the other Loan Documents. The
parties further agree that the Agent may enforce its rights under the
Loan Documents including, but not limited to, its rights to sue the
Assignor or to collect any outstanding indebtedness in accordance with
applicable law.
6.5 Consent to Jurisdiction. Assignor hereby consents to the
nonexclusive personal jurisdiction in any state or Federal court located within
the Commonwealth of Massachusetts.
6.6 JURY TRIAL WAIVER. ASSIGNOR, AGENT, AND EACH OF THE LENDERS
MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS ASSIGNMENT, ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS ASSIGNMENT OR ANY OTHER LOAN DOCUMENTS
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR ASSIGNOR, AGENT AND
EACH OF THE LENDERS TO ENTER INTO THE TRANSACTIONS CONTEMPLATED HEREBY.
[The balance of this page is intentionally left blank]
-6-
IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly
executed and delivered as a sealed instrument as of the _____ day of March,
2004.
ASSIGNOR:
CEDAR XXXXXX, LLC
By: ______________________________
Name: ______________________________
Title: ______________________________
STATE OF __________________
COUNTY OF ________________
And now, this ____ day of March, 2004, before me, the undersigned
Notary Public, personally appeared _______________, who acknowledged
himself/herself to be the _____________________ of Xxxxx Xxxxxx, LLC, a Delaware
limited liability company, and that he/she, as such ____________________ being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of Xxxxx Xxxxxx, LLC, by himself/herself as
_________________.
In witness whereof, I hereunder set my hand and official seal.
_____________________________
Notary Public
My commission expires:
-7-
EXHIBIT A ANNEXED TO AND MADE A PART OF THE
COLLATERAL ASSIGNMENT OF LEASES AND RENTS
LEGAL DESCRIPTION
(See Attached)
-8-
