Loan No. 00-0000000
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXXXX XXXXX ASSOCIATES, L.P.
(Borrower)
to
GENERAL ELECTRIC CAPITAL CORPORATION
(Lender)
_________________________________________________________
ASSIGNMENT OF LEASES AND RENTS
_________________________________________________________
Dated as of January ___, 2003
Property Location: New Cumberland, Pennsylvania
DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:
Xxxxxxx & Xxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
================================================================================
ASSIGNMENT OF LEASES AND RENTS
This Assignment of Leases and Rents (this "Agreement") is executed as
of January _____, 2003 by FAIRVIEW PLAZA ASSOCIATES, L.P., a Delaware limited
partnership, whose address for notice is c/o Cedar Income Fund Properties, L.P.,
00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxx ("Borrower"), to GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation, whose address for notice is c/o GEMSA Loan Services, L.P.,
0000 Xxxx Xxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxx 00000-0000, Attention: Portfolio
Manager/Access Program ("Lender").
AGREEMENT:
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower and Lender agree as follows:
1. Absolute Assignment. Borrower unconditionally and absolutely assigns
to Lender all of Borrower's right, title and interest in and to: (a) all leases,
subleases, occupancy agreements, licenses, concessions, rental contracts and
other agreements (written or oral) now or hereafter existing relating to the use
or occupancy of the project located on the real property described in Exhibit A
hereto (the "Property"), together with all guarantees, letters of credit and
other credit support, modifications, extensions and renewals thereof (whether
before or after the filing by or against Borrower of any petition of relief
under 11 U.S.C. ss. 101 et seq., as same may be amended from time to time [the
"Bankruptcy Code"]), and all related security and other deposits (collectively,
the "Leases"); (b)all rents, revenues, issues, profits, income and proceeds due
or to become due from tenants of the Property, including rentals and all other
payments of any kind under the Leases for using, leasing, licensing, possessing,
operating from, rendering in, selling or otherwise enjoying the Property
(collectively, the "Rents"); (c)all of Borrower's claims and rights (the
"Bankruptcy Claims") to the payment of damages arising from any rejection by a
lessee of any Lease under the Bankruptcy Code; and (d) any and all other rights
of Borrower in and to the items set forth in subsections (a) through (c) above,
and all amendments, modifications, replacements, renewals, proceeds and
substitutions thereof. This Agreement is an absolute assignment to Lender and
not an assignment as security for the performance of the obligations under the
Loan Documents (defined below), or any other indebtedness.
2. Rights of Lender. Subject to the provisions of Section 6 below,
Lender shall have the right, power and authority to: (a) notify any person that
the Leases have been assigned to Lender and that all Rents are to be paid
directly to Lender, whether or not Lender has commenced or completed foreclosure
or taken possession of the Property; (b) settle, compromise, release, extend the
time of payment of, and make allowances, adjustments and discounts of any Rents
or other obligations under the Leases; (c) enforce payment of Rents and other
rights under the Leases, prosecute any action or proceeding, and defend against
any claim with respect to Rents and Leases; (d) enter upon, take possession of
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and operate the Property; (e) lease all or any part of the Property; and/or (f)
perform any and all obligations of Borrower under the Leases and exercise any
and all rights of Borrower therein contained to the full extent of Borrower's
rights and obligations thereunder, with or without the bringing of any action or
the appointment of a receiver. At Lender's request, Borrower shall deliver a
copy of this Agreement to each tenant under a Lease and to each manager and
managing agent or operator of the Property. Borrower irrevocably directs any
tenant, manager, managing agent, or operator of the Property, without any
requirement for notice to or consent by Borrower, to comply with all demands of
Lender under this Agreement and to turn over to Lender on demand all Rents which
it receives.
3. No Obligation or Liability. Notwithstanding Lender's rights
hereunder, Lender shall not be obligated to perform, and Lender does not
undertake to perform, any obligation, duty or liability with respect to the
Leases, Rents or Property on account of this Agreement. Lender shall have no
responsibility on account of this Agreement for the control, care, maintenance
or repair of the Property, for any waste committed on the Property, for any
dangerous or defective condition of the Property, or for any negligence in the
management, upkeep, repair or control of the Property. Lender shall not be
liable for any loss sustained by Borrower resulting from Lender's failure to let
the Property after an Event of Default (as defined in the Loan Agreement) or
from any other act or omission of Lender in managing the Property after an Event
of Default. Nothing herein contained shall be construed as constituting Lender a
"mortgagee in possession" in the absence of the taking of actual possession of
the Property by Lender. In the exercise of the powers herein granted Lender, no
liability shall be asserted or enforced against Lender, all such liability being
expressly waived and released by Borrower.
4. Right to Apply Rents. Lender shall have the right, but not the
obligation, to use and apply any Rents received hereunder in such order and such
manner as Lender may determine for:
(a) Enforcement or Defense. The payment of costs and expenses of
enforcing or defending the terms of this Agreement or the rights of Lender
hereunder, and collecting any Rents;
(b) Loan Payments. Interest, principal or other amounts payable
pursuant to (i) the Loan Agreement of even date between Lender and Borrower (the
"Loan Agreement"); (ii) the Promissory Note of even date herewith in the stated
principal amount of $6,080,000.00, executed by Borrower, bearing interest and
being payable to the order of Lender (the "Note"); (iii) the Mortgage,
Assignment of Leases and Rents, Security Agreement and Fixture Filing, of even
date, executed by Borrower for the benefit of Lender and relating to the
Property (the "Mortgage"); and all other documents and instruments evidencing,
governing and securing the loan evidenced by the Note (the "Loan") and (iv) any
and all modifications, amendments or extensions thereof or replacements or
substitutions therefor (the Loan Agreement, the Note, the Mortgage, such other
documents and instruments, and such modifications, amendments, extensions,
replacements, and substitutions thereof being herein collectively called the
"Loan Documents"); and
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(c) Operating Expenses. Payment of costs and expenses of the
operation and maintenance of the Property, including (i) rentals and other
charges payable by Borrower under any ground lease or other agreement affecting
the Property; (ii) electricity, telephone, water and other utility costs, taxes,
assessments, water charges and sewer rents and other utility and governmental
charges levied, assessed or imposed against the Property; (iii) insurance
premiums; (iv) costs and expenses with respect to any litigation affecting the
Property, the Leases or the Rents; (v) wages and salaries of employees,
commissions of agents and attorneys' fees and expenses; and (vi) all other
carrying costs, fees, charges, reserves, and expenses whatsoever relating to the
Property.
After the payment of all such costs and expenses and after Lender has
established such reserves as it, in its sole and absolute discretion, deems
necessary for the proper management of the Property, Lender shall apply all
remaining Rents received by it to the reduction of the Loan.
5. No Waiver. The exercise or nonexercise by Lender of the rights
granted in this Agreement or the collection and application of Rents by Lender
or its agent shall not be a waiver of any default by Borrower under this
Agreement or any other Loan Document. No action or failure to act by Lender with
respect to any obligations of Borrower under the Loan Documents, or any security
or guaranty given for the payment or performance thereof, shall in any manner
affect, impair or prejudice any of Lender's rights and privileges under this
Agreement, or discharge, release or modify any of Borrower's duties or
obligations hereunder.
6. Revocable License. Notwithstanding that this Agreement is an
absolute assignment of the Rents and Leases and not merely the collateral
assignment of, or the grant of a lien or security interest in the Rents and
Leases, Lender grants to Borrower a revocable license to collect and receive the
Rents and to retain, use and enjoy such Rents. Such license may be revoked by
Lender upon the occurrence of any Event of Default and Lender shall immediately
be entitled to receive and apply all Rents, whether or not Lender enters upon
and takes control of the Property. Prior to such revocation, Borrower shall
apply any Rents which it receives to the payment of debt service on the Note and
other payments due under the Loan Agreement, taxes, assessments, water charges,
sewer rents and other governmental charges levied, assessed or imposed against
the Property, insurance premiums, operation and maintenance charges relating to
the Property, and other obligations of lessor under the Leases before using such
proceeds for any other purpose. Lender is hereby granted and assigned by
Borrower the right, at its option, upon the revocation of the license granted
herein to enter upon the Property in person, by agent or by court-appointed
receiver to collect the Rents. Any Rents collected after the revocation of the
license herein granted may be applied toward payment of the Indebtedness in such
priority and proportion as Lender, in its discretion, shall deem proper.
7. Term. This Agreement shall continue in full force and effect until
(a) all amounts due under the Loan Documents are paid in full, and (b) all other
obligations of Borrower under the Loan Documents are fully satisfied.
8. Appointment. Borrower irrevocably appoints Lender its true and
lawful attorney in fact, which appointment is coupled with an interest, to
execute any or all of the rights or powers described herein with the same force
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and effect as if executed by Borrower, and Borrower ratifies and confirms any
and all acts done or omitted to be done by Lender, its agents, servants,
employees or attorneys in, to or about the Property.
9. Liability of Lender. Lender shall not in any way be liable to
Borrower for any action or inaction of Lender, its employees or agents under
this Agreement.
10. Indemnification. Borrower shall indemnify, defend and hold harmless
Lender from and against all liability, loss, damage, cost or expense which it
may incur under this Agreement or under any of the Leases, including any claim
against Lender by reason of any alleged obligation, undertaking, action, or
inaction on its part to perform or discharge any terms, covenants or conditions
of the Leases or with respect to Rents, and including attorneys' fees and
expenses, but excluding any claim to the extent caused by Lender's gross
negligence or willful misconduct. Any amount covered by this indemnity shall be
payable on demand, and shall bear interest from the date of demand until the
same is paid by Borrower to Lender at a rate equal to the Default Rate (as
defined in the Loan Agreement).
11. Modification. This Agreement may not be changed orally, but only by
an agreement in writing signed by the party against whom enforcement of such
change is sought.
12. Bankruptcy.
(a) Upon or at any time after the occurrence of a Event of Default,
Lender shall have the right to proceed in its own name or in the name of
Borrower in respect of any claim, suit, action or proceeding relating to the
rejection of any Lease, including, without limitation, the right to file and
prosecute, to the exclusion of Borrower, any proofs of claim, complaints,
motions, applications, notices and other documents, in any case in respect of
the lessee under such Lease under the Bankruptcy Code.
(b) If there shall be filed by or against Borrower a petition under
the Bankruptcy Code, and Borrower, as lessor under any Lease, shall determine to
reject such Lease pursuant to Section 365(a) of the Bankruptcy Code, then
Borrower shall give Lender not less than ten (10) days' prior notice of the date
on which Borrower shall apply to the bankruptcy court for authority to reject
the Lease. Lender shall have the right, but not the obligation, to serve upon
Borrower within such ten-day period a notice stating that (i) Lender demands
that Borrower assume and assign the Lease to Lender pursuant to Section 365 of
the Bankruptcy Code and (ii) Lender covenants to cure or provide adequate
assurance of future performance under the Lease. If Lender serves upon Borrower
the notice described in the preceding sentence, Borrower shall not seek to
reject the Lease and shall comply with the demand provided for in clause (i) of
the preceding sentence within thirty (30) days after the notice shall have been
given, subject to the performance by Lender of the covenant provided for in
clause (ii) of the preceding sentence.
13. Authority. Borrower represents and warrants that it has full power
and authority to execute and deliver this Agreement and the execution and
delivery of this Agreement has been duly authorized and does not conflict with
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or constitute a default under any law, judicial order or other agreement
affecting Borrower or the Property.
14. Liability. If Borrower consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several.
15. 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.
16. Notices. Any notice required or permitted to be given under this
Agreement shall be (a) in writing, (b) sent in the manner set forth in the Loan
Agreement, and (c) effective in accordance with the terms of the Loan Agreement.
17. Successors and Assigns. This Agreement shall inure to the benefit
of Lender and its successors and assigns and shall be binding on Borrower and
its successors and assigns.
18. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State where the Property is located and the
applicable laws of the United States of America.
19. Conflict. If any conflict or inconsistency exists between the
absolute assignment of the Rents and the Leases in this Agreement and the
assignment of the Rents and Leases as security in the Mortgage, the terms of
this Agreement shall control.
20. Limitation on Liability. Borrower's liability hereunder is subject
to the limitation on liability provisions of Article 12 of the Loan Agreement.
21. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, but all of which shall
constitute one document.
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EXECUTED under seal as of the date first written above.
BORROWER: FAIRVIEW PLAZA ASSOCIATES, L.P,
a Delaware limited partnership
By: CIF-FAIRVIEW PLAZA ASSOCIATES, LLC,
a Delaware limited liability company,
its General Partner
By: CEDAR INCOME FUND PARTNERSHIP, L.P.,
a Delaware limited partnership,
Sole and Managing Member
By: CEDAR INCOME FUND, LTD.,
a Maryland Real Estate Investment
Trust, its General Partner
By:________________________________
Xxx X. Xxxxxx, President
[SEAL]
I certify that the address of the within named Mortgagee is:
c/o GEMSA Capital Services, L.P.
0000 Xxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
By:______________________________
Agent for Mortgagee
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COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF___________________ )
On this, the _____ day of January, 2003, before me, the subscriber, a
Notary Public in and for the Commonwealth and County aforesaid, personally
appeared XXX X. XXXXXX who acknowledged herself to be the President of CEDAR
INCOME FUND, LTD., a Maryland real estate investment trust and General Partner
of CEDAR INCOME FUND PARTNERSHIP, L.P., a Delaware limited partnership and Sole
Managing Member of CIF-FAIRVIEW PLAZA ASSOCIATES, LLC, a Delaware limited
liability company and General Partner FAIRVIEW PLAZA ASSOCIATES, L.P., a
Delaware limited partnership, of who I am satisfied is the person who signed the
within instrument and who acknowledged that she executed same as such on behalf
of said FAIRVIEW PLAZA ASSOCIATES, L.P., being authorized to do so, and that the
within instrument is the voluntary act and deed of such FAIRVIEW PLAZA
ASSOCIATES, L.P.
WITNESS my hand and seal the day and year aforesaid.
_____________________________________
Notary Public
My commission Expires:_______________
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EXHIBIT A
Legal Description
ALL THAT CERTAIN lot of land situate in the Township of Fairview,
County of York and Commonwealth of Pennsylvania, bounded and described according
to an ALTA/ACSM Survey by J. Xxxxxxx Xxxxx Associates, Inc., Xxxxx X.
Xxxxxxxxxxx, PLS, Job Xx. 000-X dated October 25, 2002, as follows:
BEGINNING AT A POINT at lands now or formerly Susquehanna Area Regional
Airport Authority; said point being the southeastern corner of herein described
parcel; thence by said lands North 74 degrees 26 minutes 00 seconds West a
distance of 618.88 feet to a point on the eastern right-of-way line of New York
Road (SR 1003); thence by said right-of-way line by a curve to the left having a
radius of 1356.91 feet and an arc distance of 329.61 feet the chord of said
curve being North 17 degrees 49 minutes 40 seconds East a distance of 328.80
feet (Deed 329.46 feet) to a point at lands now or formerly Venture Quest
Development Inc.; thence by said lands South 84 degrees 49 minutes 57 seconds
East a distance of 198.83 feet (Deed 198.84 feet) to a point; thence by same
North 57 degrees 40 minutes 03 seconds East a distance of 347.78 feet to an iron
pipe; thence by same South 53 degrees 40 minutes 00 seconds East a distance of
214.38 feet to an iron pin at lands nor or formerly Housing Authority of City of
York; thence by said lands South 18 degrees 00 minutes 18 seconds West a
distance of 546.96 feet to a point, the ping of BEGINNING.
CONTAINING 6.7391 Acres.
TOGETHER WITH the rights for installation, maintenance and repair of a
30 inch storm drain pipe as set forth in Agreement dated October 2, 1990
recorded in Deed Book 107-U, Page 977.
TOGETHER WITH AND UNDER AND SUBJECT TO rights of joint access over shared
driveway as contained in Agreement Venture Quest Development, Inc.,
____________, 2002, and recorded ________, 2002.
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