ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") executed on
November 14, 2002, to be delivered on November 15, 2002, by CEDAR-CAMP HILL,
LLC, a Delaware limited liability company ("Assignor"), with an office in care
of CEDAR BAY REALTY ADVISORS, INC., 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000, and CITIZENS BANK OF PENNSYLVANIA, a Pennsylvania
state chartered savings bank ("Assignee"), with an office at 0000 Xxxxxx Xxxxxx,
0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000.
Background
Assignor and Assignee have entered into a certain Loan Agreement dated
this date (as the same may be amended, modified or supplemented, from time to
time, the "Loan Agreement") pursuant to which Assignee has agreed to extend a
credit facility to Assignor in the principal amount of Fourteen Million Dollars
($14,000,000) (the "Loan"), which is evidenced by a certain Promissory Note
dated this date (the "Note") executed by Assignor and made payable to the order
of Assignee in the stated principal amount of the Loan. The Note is secured,
inter alia, by an Open-end Mortgage and Security Agreement dated this date (the
"Mortgage") given by Assignor to Assignee encumbering Assignor's interest in
certain land and the buildings and improvements thereon located at 32nd Street
(a/k/a U.S. Route 11/15) and Xxxxxxx Road in Camp Hill, Cumberland County,
Pennsylvania (such land and improvements, collectively, the "Project"), all as
more particularly described in Exhibit A attached hereto and made a part hereof.
Assignee is willing to make the Loan to Assignor pursuant to the Loan
Agreement on certain conditions. One such condition is that payment shall be
secured by, in addition to the Mortgage and other things, an assignment of
Assignor's interest in the Leases and Rents more particularly described below.
Assignor has agreed to assign to Assignee, on the terms and subject to
the conditions hereinafter set forth, all of Assignor's rights under all leases
in which Assignor is the landlord now or hereafter affecting the Project or any
portion thereof, together with all extensions, renewals and modifications
thereof and subleases thereunder, and together with all guaranties of any
tenant's or subtenant's performance thereunder (any such lease, as so extended,
modified, and renewed and with such subleases and guaranties thereof,
individually, a "Lease," and all such Leases, as so extended, modified and
renewed and with such subleases and guaranties thereof, collectively, the
"Leases"), all credits, cash, deposits (whether for the security or otherwise),
rents, advance rentals, issues, profits, revenues, royalties, accounts, rights,
benefits and income of every nature of and from the Project, including, without
limitation, minimum rents, additional rents, termination payments, forfeited
security deposits, liquidated damages following a default under a Lease by the
tenant thereunder and all proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability due to destruction or
damage to the Project, together with the immediate and continuing right to
collect and receive the same, whether now due or hereafter becoming due, and
together with all rights and claims of any kind that Assignor may have against
any tenant, lessee or licensee under the Leases or against any other occupant of
the Project, any award or other payment which Assignor may hereafter become
entitled to receive with respect to any of the Leases as a result of or pursuant
to any bankruptcy, insolvency or reorganization or similar proceedings involving
the tenants under such Leases, and any and all payments made by or on behalf of
any tenant of any part of the Project in lieu of rent, and all rents, oil and
gas or other mineral royalties, revenues and bonuses, issues and profits from
the Project, and the building improvements, the fixtures and the equipment
located thereon, including, without limitation, all revenues, receipts, income,
accounts, accounts receivable and other receivables including, without
limitation, revenues receipts, income, receivables and accounts relating to or
arising from rentals, rent equivalent income, income and profits from the
operation of the retail center on the Project, the provision or sale of goods
and services, and any other items of revenue, receipts or other income
(collectively, the "Rents") and all proceeds from the sale or other disposition
of the Leases and the right to receive and apply the Rents to the payment of the
Obligations Secured (as defined in the Mortgage), all on the terms and subject
to the conditions hereinafter set forth.
Capitalized terms used in this Assignment without definition shall have
the same meanings ascribed to those terms in the Loan Agreement.
Assignment
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to secure repayment of the Loan with interest and all
other sums due or to become due under the Loan Documents, Assignor, intending to
be legally bound, hereby agrees as follows:
1. Assignment of Leases and Rents.
(a) Assignor hereby conveys, transfers, assigns and sets over unto
Assignee all of Assignor's right, title, interest and privilege in, to and under
the Leases and the Rents. This Assignment includes, without limitation:
(i) All Rents (whether denoted as minimum rent, percentage rent,
additional rent or otherwise), income, profits and other sums due or to become
due under the Leases, or any of them;
(ii) All security deposits made by any tenant or subtenant under
any Lease (any such tenant or subtenant, together with any other person or
entity succeeding to all or any part of such tenant's or subtenant's interest
under said Xxxxx, whether by assignment, sublease, operation of law or
otherwise, and any guarantor of all or any portion of such tenant's performance
under such Lease, are hereinafter referred to individually as a "Tenant" and
collectively, as the "Tenants"), to the extent they may be lawfully assigned.
(iii) Any payments made by any Tenant in lieu of Rent;
(iv) Any guaranties of payment or performance of any Tenant's
obligations under any Lease;
(v) All claims, rights, privileges and remedies on the part of
Assignor, whether arising under the Leases or by statute or at law or in equity
or otherwise, arising out of or in connection with any failure by any Tenant to
pay the Rents or to perform any of its other obligations under its Lease;
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(vi) All rights, powers and privileges of Assignor to exercise
any election or option or to give or receive any notice, consent, waiver or
approval under or with respect to the Leases or the Rents; and
(vii) All other claims, rights, powers, privileges and remedies
of Assignor under or with respect to the Leases and the Rents, including without
limitation the right, power and privilege (but not the obligation) to do any and
all acts, matters and other things that Assignor is entitled to do thereunder or
with respect thereto.
(b) Assignor covenants and agrees with Assignee that any subsequent
Leases of all or any portion of the Project shall be subject to all of the terms
and conditions of this Assignment (including, without limitation, Section 3(b)
hereof) and the other Loan Documents, and Assignor further covenants and agrees
with Assignee that any such subsequent Lease of all or any portion of the
Project shall automatically and without the necessity of any further action by
Assignor or Assignee be subject to the terms and conditions of this Assignment,
with the intent and effect that all Rents and other sums due and becoming due
under any such subsequent Lease shall automatically be assigned hereby as
security for the Loan and the performance of all of Assignor's obligations under
the Loan Documents.
(c) Assignor agrees that it will, promptly upon receipt of written
request from Assignee, execute, acknowledge and deliver specific and separate
assignments of any or all of the Leases, including, without limitation,
assignments requested in connection with any sublease under any of the Leases or
any assignment, directly or indirectly, voluntarily or by operation of law,
thereof, or in connection with the entrance by Assignor into any subsequent
Lease.
2. Limitations on Assignment.
(a) This Assignment is given for the purpose of securing the Loan
and the performance by Assignor of all of its obligations under the Loan
Documents, and, accordingly, upon full and indefeasible repayment of the Loan
(including, without limitation, all principal, interest, fees and collection
costs) and the discharge of all of Assignor's other obligations under the Loan
Documents, this Assignment shall automatically become null and void.
(b) Notwithstanding any provision herein to the contrary, this
Assignment is intended to be an absolute assignment from Assignor to Assignee
and not merely the granting of a security interest. The Leases and the Rents and
profits hereby assigned to Assignee are assigned subject only to the right of
Assignor to receive and use the Rents during any period for which rent payments
are to be paid to Assignor pursuant to the provisions of Section 9 hereof
(provided that Assignor shall have no right to receive and use Rents during the
existence of an Event of Default).
3. Assignor's Covenants.
(a) Assignor hereby covenants that Assignor will not, without in
each case obtaining the prior written consent of Assignee: (i) cancel or
terminate or accept a surrender of any Lease other than by its terms or
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following a default by the tenant thereunder; (ii) amend, modify or otherwise
change any Lease so as to decrease the term or reduce the rental due, or
discount, compromise or forgive any amounts due, or diminish any Tenant's
obligation with regard to the payment of taxes, insurance and other sums; (iii)
permit the payment of rent under any Lease more than thirty (30) days in advance
of the due date thereof, or anticipate, encumber or assign the Rents or any part
thereof or any interest therein; (iv) release any guarantor or surety of any
Tenant's obligations; (v) waive any material default under or material breach of
any Lease; or (vi) take any other action in connection with any Lease or any
Rent which would materially impair the value of the rights or interests of
Assignor or Assignee under or in such Lease.
(b) Assignor covenants that Assignor will perform and observe all of
the covenants and requirements contained in the Mortgage and the Loan Agreement
with respect to the leasing of the Project or any portion thereof, and Assignor
further agrees upon request by Assignee from time to time to deliver promptly to
Assignee true, complete and correct copies of all Leases (and all modifications,
amendments, riders and addenda to any of the Leases) executed after the date
hereof. Assignor shall use all reasonable efforts to cause the Tenants to
execute and deliver to Assignee (such delivery to be within ten (10) Business
Days after requested by Assignor or such longer period provided in such Lease)
such certificates as to the status of the Leases, the rent, additional rent and
other charges payable thereunder, and the Tenants' and Assignor's compliance
with the terms thereof as Assignee may from time to time request (but not more
frequently than once per year so long as no Event of Default exists), such
certificates to be in form and substance reasonably satisfactory to Assignee.
Assignor shall use its good faith efforts to include in each Lease executed
after the date hereof a clause obligating the Tenant thereunder to execute and
deliver such certificates to Assignor and its mortgagees.
4. Assignor's Obligations as Landlord. Assignor agrees that it will
perform all of its obligations as landlord under the Leases, use commercially
reasonable efforts to enforce the performance by the Tenants of all of their
respective obligations under the Leases and appear in and defend any action or
proceeding arising out of or in connection with any of the Leases. Assignor
further agrees to send to Assignee duplicate copies of any notice of default
from any Tenant and any material notice sent or received by Assignor.
5. Assignee Not Bound To Perform Under Leases.
(a) Notwithstanding any legal presumption to the contrary, Assignee
shall not be obligated by reason of their acceptance of this Assignment to
perform any obligation of Assignor as landlord under the Leases, or any of them.
Assignor shall at all times remain solely liable under the Leases for the
performance of the obligations of Assignor thereunder. However, Assignee may, at
its sole option, and without releasing Assignor from any obligation hereunder or
under the Leases, discharge any obligation which Assignor fails, after
reasonable notice from Assignee, to discharge, including, without limitation,
defending any legal action, and Assignor agrees to pay upon demand all sums
expended by Assignee in connection therewith, including reasonable counsel fees
and court costs, together with interest thereon at the Default Rate provided for
under the Loan Agreement, and the same shall be added to the indebtedness
evidenced by the Note and secured by the Mortgage and this Assignment.
(b) Assignee shall not have any obligation to make any inquiry as to
the nature or sufficiency of any payment received by Assignee, or to present or
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file any claim, or to take any action to collect or enforce the payment of any
amounts which have been assigned to Assignee or to which Assignee may be
entitled at any time or times. Assignor hereby agrees to indemnify Assignee and
save Assignee harmless from and against any and all loss, liability, damage
(excluding consequential damages) or expense (including, without limitation,
reasonable attorney's fees) arising from or as a result of any claim by any
Tenant or any other party arising under or in connection with the Leases, or any
of them, or this Assignment, whether by reason of any alleged obligation or
undertaking on Assignee's part to perform or discharge any of the covenants
contained in the Leases or otherwise unless resulting from the gross negligence
or willful misconduct of Assignee.
(c) Neither the acceptance of this Assignment nor the collection of
Rent or other sums due or becoming due under the Leases assigned hereby shall
constitute a waiver of any rights of Assignee under the Loan Documents or any
other collateral now or hereafter mortgaged, pledged or assigned as collateral
for the Note and the performance of Assignor's obligations thereunder and under
the other Loan Documents. Assignor agrees that the procedures required by
Assignee hereunder are for the benefit of Assignee, their successors and assigns
only, and not for the benefit of Assignor, any Tenant or any other party.
6. Representations and Warranties of Assignor. Assignor hereby
represents and warrants to Assignee, as a material inducement to Assignee to
accept this Assignment and to make the Loan, that:
(a) Based on Assignor's best knowledge after diligent investigation,
Assignor has delivered to Assignee a true correct and complete list and
description of all Leases currently in existence with respect to the use and
occupancy of all or any portion of the Project;
(b) Assignor has not executed any prior assignment of any of its
rights under any Leases except in favor of Assignee; and
(c) Assignor has not done anything which would prevent Assignee from
or limit Assignee in operating under any of the provisions hereof.
7. Bankruptcy and Other Proceeds. In furtherance and not in limitation
of the assignment set forth in Section 1 hereof:
(a) Assignor hereby assigns to Assignee any award hereafter made to
Assignor in any court proceeding involving any of the Tenants in any bankruptcy,
insolvency, or reorganization in any state or Federal court.
(b) Assignor assigns to Assignee any purchase proceeds receivable by
reason of any Tenant's exercising any right of first refusal or any option to
purchase the Project or any portion thereof as may be provided in any of the
Leases or any additions, amendments or supplements thereto.
8. Events of Default.
(a) The occurrence of any one or more of the following shall, at the
option of Assignee, constitute an event of default (each, an "Event of Default")
hereunder:
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(i) Any representation or warranty or financial statement of
Assignor or Guarantor under this Assignment or under any of the other Loan
Documents shall be untrue in any material adverse respect when made (including
by omission of material information necessary to make such representation or
warranty or financial statement not misleading);
(ii) Assignor shall have failed to observe and perform any of
the terms, covenants, promises and agreements on its part to be observed and
performed under this Assignment and, except for the events specified in the
following subsections of this Section 8(a) (which shall be subject to the grace
or cure periods, if any, provided therein), such Default shall not have been
cured within thirty (30) days after written notice of such default shall have
been given to Assignor; provided that, if such Default is curable but not
reasonably capable of cure within such thirty (30) day period, Assignor shall
have such further period, not to exceed a period of sixty (60) days in the
aggregate, as may be required to cure such Default, on the condition that
Assignor commences such cure within the original thirty (30) day period and
thereafter diligently prosecutes such cure to completion;
(iii) An Event of Default shall have occurred under any other
Loan Document; or
(iv) The occurrence of any material default by Assignor under
any Lease or number of Leases which individually or in the aggregate, in the
reasonable judgment of Assignee, has a material adverse effect on the financial
condition of Assignor or the Project.
(b) Upon the occurrence of any Event of Default, Assignee shall be
entitled to exercise all or any of their rights and remedies under the Loan
Agreement, Note, Mortgage and this Assignment, or as may otherwise be available
to Assignee at law or in equity, in such order as Assignee may elect.
9. Right of Assignee to Direct Payment of Rents. The assignment set
forth above includes the full and complete assignment by Assignor to Assignee of
all right, power and privilege of Assignor to direct the party to whom Rents are
to be paid. Such assignment of the right to direct payment of Rents is
unconditional and unrestricted, except that, so long as no Event of Default has
occurred, Assignor shall have a license to collect Rents which license may be
terminated and revoked by Assignee upon the occurrence of an Event of Default.
The Tenants shall be, and hereby are, irrevocably authorized to rely upon and
act in accordance with (and shall be fully protected in so doing) any notice or
demand by Assignee for the payment to Assignee or their nominee of any Rents
which may then be or thereafter become due under the Leases, and shall have no
duty to inquire whether any such notice or demand by Assignee conflicts with any
provision of this Assignment.
10. Benefits and Burdens. This Assignment shall be binding upon
Assignor and its successors and assigns, including any subsequent owner of the
Project, and shall inure to the benefit of Assignee and its successors and
assigns. In furtherance and not in limitation of the foregoing, Assignee, as
holder of the Mortgage, shall have the right to assign all or a portion of
Assignee's rights, title, interest and privilege in and to the Leases and/or the
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Rents to any subsequent holder of the Mortgage, and to assign the same to any
person acquiring title to the Project through foreclosure or otherwise.
11. Notices. All notices required to be given to any of the parties
hereunder shall be in writing and shall be deemed to have been sufficiently
given for all purposes when sent in accordance with the notice provisions
contained in the Loan Agreement.
12. Governing Law; Amendment. This Assignment is delivered and intended
to be performed in the Commonwealth of Pennsylvania and shall be governed and
construed in accordance with the laws of said Commonwealth. This Assignment may
only be amended by an instrument in writing executed by Xxxxxxxx and Assignee.
In case of any conflict between this Agreement and the Lockbox Agreement of this
date, the Lock Agreement shall govern.
IN WITNESS WHEREOF, Assignor has duly executed this Assignment, under
seal, as of the day and year first above written.
CEDAR-CAMP HILL, LLC, a Delaware limited
liability company, by its sole member,
as follows:
Cedar Income Fund Partnership, L.P., a
Delaware limited partnership, by its
sole general partner, as follows:
Cedar Income Fund, Ltd., a Maryland
corporation
Attest:_____________________________ By:_____________________________________
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Secretary Title: Vice President
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COMMONWEALTH OF PENNSYLVANIA )
) SS
COUNTY OF__________________________ )
On this, the ___ day of _____________, 2002, before me a Notary Public
in and for the Commonwealth and County aforesaid, personally appeared
_____________________, who acknowledged himself to be the
_________________________ of Cedar Income Fund, Ltd., a Maryland corporation,
sole general partner of Cedar Income Fund Partnership, L.P., a Delaware limited
partnership, the sole member of Cedar-Camp Hill, LLC, a Delaware limited
liability company, and that as such partner being authorized to do so, executed
the foregoing instrument for the purposes therein contained, by signing the name
of the partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
___________________________
Notary Public
My Commission Expires:
Exhibit A
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Legal Description
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