EXHIBIT 10.16
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CEDAR-FRANKLIN VILLAGE LLC, as assignor
(Borrower)
to
EUROHYPO AG, NEW YORK BRANCH, as assignee
(Lender)
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ASSIGNMENT
OF LEASES AND RENTS
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Dated: As of November 1, 2004
Location: Franklin, Massachusetts
County: Norfolk
PREPARED BY AND UPON
RECORDATION RETURN TO:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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THIS ASSIGNMENT OF LEASES AND RENTS (this "ASSIGNMENT") made as of the
1st day of November, 2004, by CEDAR-FRANKLIN VILLAGE LLC, a Delaware limited
liability company, as assignor, having its principal place of business at c/o
Cedar Shopping Centers Partnership, L.P., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("BORROWER") to EUROHYPO AG, NEW YORK BRANCH, the New
York branch of a German banking corporation, as assignee, having an address at
1114 Avenue of the Americas, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Lender").
W I T N E S S E T H:
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WHEREAS, this Assignment is given in connection with a loan in the
principal sum of FORTY-THREE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($43,500,000.00) (the "LOAN") made by Lender to Borrower pursuant to that
certain Loan Agreement dated as of the date hereof (as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to time, the
"LOAN AGREEMENT") and evidenced by that certain Promissory Note dated the date
hereof made by Borrower to Lender (as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time, the "NOTE");
WHEREAS, the Note is secured by that certain Mortgage and Security
Agreement dated the date hereof (as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time, the "MORTGAGE") made by
Borrower for the benefit of Lender; and
WHEREAS, Borrower desires to further secure the payment of the Debt (as
defined in the Loan Agreement) and the performance of all of its obligations
under the Note, the Loan Agreement and the other Loan Documents.
NOW THEREFORE, in consideration of the making of the Loan by Lender and
the covenants, agreements, representations and warranties set forth in this
Assignment:
ARTICLE 1 - ASSIGNMENT
Section 1.1 PROPERTY ASSIGNED. Borrower hereby absolutely and
unconditionally assigns and grants to Lender the following property, rights,
interests and estates, now owned, or hereafter acquired by Borrower (the
"ASSIGNED PROPERTY"):
(A) LEASES. All existing and future "leases" and "lease provisions" (as
described in Exhibit B annexed hereto and made a part hereof) affecting the use,
enjoyment, or occupancy of all or any part of that certain lot or piece of land,
more particularly described in Exhibit A annexed hereto and made a part hereof,
or all or any part of the buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and improvements
now or hereafter located thereon (collectively, the "PROPERTY") and the right,
title and interest of Borrower, its successors and assigns, therein and
thereunder.
(B) OTHER LEASES AND AGREEMENTS. All other leases and other agreements,
whether or not in writing, affecting the use, enjoyment or occupancy of the
Property or any portion thereof now or hereafter made, whether made before or
after the filing by or against Borrower of any petition for relief under 11
U.S.C. ss. 101 et seq., as the same may be amended from time to time (the
"BANKRUPTCY CODE") together with any extension, renewal or replacement of the
same, this Assignment of other present and future leases and present and future
agreements being effective without further or supplemental assignment. The
"leases" and the "lease provisions" described in Subsection 1.1(a) and the
leases and other agreements described in this Subsection 1.1(b) are collectively
referred to as the "LEASES".
(C) RENTS. All "rents" (as described in Exhibit B annexed hereto and
made a part hereof) whether paid or accruing before or after the filing by or
against Borrower of any petition for relief under the Bankruptcy Code
(collectively, the "RENTS").
(D) BANKRUPTCY CLAIMS. 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 to the maximum extent
permissible under the Bankruptcy Code and/or all other applicable federal, state
and local laws, the right to reject or confirm Leases in any bankruptcy
proceeding of the Borrower or relating to the Property.
(E) LEASE GUARANTIES. All of Borrower's right, title and interest in
and claims under any and all lease guaranties, letters of credit and any other
credit support (individually, a "LEASE GUARANTY", collectively, the "LEASE
GUARANTIES") given by any guarantor in connection with any of the Leases or
leasing commissions (individually, a "LEASE GUARANTOR", collectively, the "LEASE
GUARANTORS") to Borrower.
(F) PROCEEDS. All proceeds from the sale or other disposition of the
Leases, the Rents, the Lease Guaranties and the Bankruptcy Claims.
(G) OTHER. All rights, powers, privileges, options and other benefits
of Borrower as lessor under the Leases and beneficiary under the Lease
Guaranties, including without limitation the immediate and continuing right to
make claim for, receive, collect and receipt for all Rents payable or receivable
under the Leases and all sums payable under the Lease Guaranties or pursuant
thereto (and to apply the same to the payment of the Debt or the Other
Obligations), and to do all other things which Borrower or any lessor is or may
become entitled to do under the Leases or the Lease Guaranties.
(H) ENTRY. The right, at Lender's option, upon revocation of the
license granted herein, to enter upon the Property in person, by agent or by
court-appointed receiver, to collect the Rents.
(I) POWER OF ATTORNEY. Upon an uncured Event of Default, Borrower's
irrevocable power of attorney, coupled with an interest, to take any and all of
the actions set forth in Section 3.1 and 3.5 of this Assignment and any or all
other actions designated by Lender for the proper management and preservation of
the Property.
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(J) OTHER RIGHTS AND AGREEMENTS. Any and all other rights of Borrower
in and to the items set forth in subsections (a) through (i) above, and all
amendments, modifications, replacements, renewals and substitutions thereof.
ARTICLE 2 - TERMS OF ASSIGNMENT
Section 2.1 PRESENT ASSIGNMENT AND LICENSE BACK. It is intended by
Borrower that this Assignment constitute a present, absolute assignment of the
Assigned Property, and not an assignment for additional security only.
Nevertheless, subject to the terms of this Section 2.1 and the Cash Management
Agreement, Lender grants to Borrower a revocable license to collect, receive,
use and enjoy the Rents, as well as other sums due under or arising from the
Assigned Property and to otherwise take all actions with respect to the Assigned
Property not expressly prohibited under the Loan Documents. Borrower shall hold
the Rents, as well as all sums received pursuant to or arising from any Assigned
Property, or a portion thereof sufficient to discharge all current sums due on
the Debt, in trust for the benefit of Lender for use in the payment of such
sums.
Section 2.2 NOTICE TO LESSEES. Borrower hereby authorizes and directs
the lessees named in the Leases or any other future lessees or occupants of the
Property and all Lease Guarantors to pay over to Lender or to such other party
as Lender directs all Rents and all sums due under or arising from any Assigned
Property upon receipt from Lender of written notice to the effect that Lender is
then the holder of this Assignment and that an Event of Default (as defined in
the Loan Agreement) exists, and to continue so to do until otherwise notified by
Lender.
Section 2.3 INCORPORATION BY REFERENCE. All representations,
warranties, covenants, conditions and agreements contained in the Loan Agreement
and the other Loan Documents as same may be modified, renewed, substituted or
extended are hereby made a part of this Assignment to the same extent and with
the same force as if fully set forth herein.
ARTICLE 3 - REMEDIES
Section 3.1 REMEDIES OF LENDER. For so long as an Event of Default
exists, the license granted to Borrower in Section 2.1 of this Assignment shall
automatically be revoked, and Lender shall immediately be entitled to possession
of all Rents and sums due under or arising from any Assigned Property, whether
or not Lender enters upon or takes control of the Property. In addition, Lender
may, at its option, without waiving such Event of Default, without regard to the
adequacy of the security for the Debt, either in person or by agent, nominee or
attorney, with or without bringing any action or proceeding, or by a receiver
appointed by a court, dispossess Borrower and its agents and servants from the
Property, without liability for trespass, damages or otherwise and exclude
Borrower and its agents or servants wholly therefrom, and take possession of the
Property and all books, records and accounts relating thereto and have, hold,
manage, lease and operate the Property on such terms and for such period of time
as Lender may deem proper and either with or without taking possession of the
Property in its own name, demand, ▇▇▇ for or otherwise collect and receive all
Rents and sums due under or arising from all Assigned Property, including those
past due and unpaid with full power to make from time to time all alterations,
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renovations, repairs or replacements thereto or thereof as Lender may deem
proper and may apply the Rents and sums received pursuant to or arising from any
Assigned Property to the payment of the following in such order and proportion
as Lender in its sole discretion may determine, any law, custom or use to the
contrary notwithstanding: (a) all expenses of managing and securing the
Property, including, without being limited thereto, the salaries, fees and wages
of a managing agent and such other employees or agents as Lender may deem
necessary or desirable and all expenses of operating and maintaining the
Property, including, without being limited thereto, all taxes, charges, claims,
assessments, water charges, sewer rents and any other liens, and premiums for
all insurance which Lender may deem necessary or desirable, and the cost of all
alterations, renovations, repairs or replacements, and all expenses incident to
taking and retaining possession of the Property; and (b) the Debt, together with
all costs and reasonable attorneys' fees. In addition, upon the occurrence and
during the continuation of an Event of Default, Lender, at its option, may (1)
complete any construction on the Property in such manner and form as Lender
deems advisable, (2) exercise all rights and powers of Borrower, including,
without limitation, the right to negotiate, execute, cancel, enforce or modify
Leases or any related guarantees, obtain and evict tenants, and demand, ▇▇▇ for,
collect and receive all Rents from the Property and all sums due under or
arising from any Assigned Property, (3) either require Borrower to pay monthly
in advance to Lender, or any receiver appointed to collect the Rents, the fair
and reasonable rental value for the use and occupancy of such part of the
Property as may be in possession of Borrower or (4) require Borrower to vacate
and surrender possession of the Property to Lender or to such receiver and, in
default thereof, Borrower may be evicted by summary proceedings or otherwise.
Section 3.2 OTHER REMEDIES. Nothing contained in this Assignment and no
act done or omitted by Lender pursuant to the power and rights granted to Lender
hereunder shall be deemed to be a waiver by Lender of its rights and remedies
under the Loan Agreement, the Note, or the other Loan Documents and this
Assignment is made and accepted without prejudice to any of the rights and
remedies possessed by Lender under the terms thereof. The right of Lender to
collect the Debt and to enforce any other security therefor held by it may be
exercised by Lender either prior to, simultaneously with, or subsequent to any
action taken by it hereunder. Borrower hereby absolutely, unconditionally and
irrevocably waives any and all rights to assert any setoff, counterclaim or
crossclaim of any nature whatsoever with respect to the obligations of Borrower
under this Assignment, the Loan Agreement, the Note, the other Loan Documents or
otherwise with respect to the Loan in any action or proceeding brought by Lender
to collect same, or any portion thereof, or to enforce and realize upon the lien
and security interest created by this Assignment, the Loan Agreement, the Note,
or any of the other Loan Documents (provided, however, that the foregoing shall
not be deemed a waiver of Borrower's right to assert any compulsory counterclaim
if such counterclaim is compelled under local law or rule of procedure, nor
shall the foregoing be deemed a waiver of Borrower's right to assert any claim
which would constitute a defense, setoff, counterclaim or crossclaim of any
nature whatsoever against Lender in any separate action or proceeding).
Section 3.3 OTHER SECURITY. Lender may take or release other security
for the payment of the Debt, may release any party primarily or secondarily
liable therefor and may apply any other security held by it to the reduction or
satisfaction of the Debt without prejudice to any of its rights under this
Assignment.
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Section 3.4 NON-WAIVER. The exercise by Lender of the option granted it
in Section 3.1 of this Assignment and the collection of the Rents and sums due
under or arising from the Assigned Property and the application thereof as
herein provided shall not be considered a waiver of any default by Borrower
under the Note, the Loan Agreement, the Leases, this Assignment or the other
Loan Documents. The failure of Lender to insist upon strict performance of any
term hereof shall not be deemed to be a waiver of any term of this Assignment.
Borrower shall not be relieved of Borrower's obligations hereunder by reason of
(a) the failure of Lender to comply with any request of Borrower or any other
party to take any action to enforce any of the provisions hereof or of the Loan
Agreement, the Note or the other Loan Documents, (b) the release regardless of
consideration, of the whole or any part of the Property, or (c) any agreement or
stipulation by Lender extending the time of payment or otherwise modifying or
supplementing the terms of this Assignment, the Loan Agreement, the Note, or the
other Loan Documents. Lender may resort for the payment of the Debt to any other
security held by Lender in such order and manner as Lender, in its discretion,
may elect. Lender may take any action to recover the Debt, or any portion
thereof, or to enforce any covenant hereof without prejudice to the right of
Lender thereafter to enforce its rights under this Assignment. The rights of
Lender under this Assignment shall be separate, distinct and cumulative and none
shall be given effect to the exclusion of the others. No act of Lender shall be
construed as an election to proceed under any one provision herein to the
exclusion of any other provision.
Section 3.5 BANKRUPTCY. (a) Upon or at any time after the occurrence
and during the continuation of an 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.
ARTICLE 4 - NO LIABILITY, FURTHER ASSURANCES
Section 4.1 NO LIABILITY OF LENDER. This Assignment shall not be
construed to bind Lender to the performance of any of the covenants, conditions
or provisions contained in any Lease or Lease Guaranty or otherwise impose any
obligation upon Lender. Lender shall not be liable for any loss sustained by
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Borrower resulting from Lender's failure to let the Property after an Event of
Default or from any other act or omission of Lender in managing the Property
after an Event of Default unless such loss is caused by the gross negligence,
willful misconduct or bad faith of Lender. Lender shall not be obligated to
perform or discharge any obligation, duty or liability under the Leases or any
Lease Guaranties or under or by reason of this Assignment and Borrower shall
indemnify Lender for, and hold Lender harmless from, any and all liability, loss
or damage which may or might be incurred under the Leases, any Lease Guaranties
or under or by reason of this Assignment and from any and all claims and demands
whatsoever, including the defense of any such claims or demands which may be
asserted against Lender by reason of any alleged obligations and undertakings on
its part to perform or discharge any of the terms, covenants or agreements
contained in the Leases or any Lease Guaranties; provided, however, that
Borrower shall not indemnify or hold Lender harmless with respect to liability
or loss or damage resulting from Lender's gross negligence, willful misconduct
or bad faith. Should Lender incur any such liability, the amount thereof,
including actual costs, expenses and reasonable attorneys' fees, shall be
secured by this Assignment and by the Mortgage and the other Loan Documents and
Borrower shall reimburse Lender therefor promptly upon demand and upon the
failure of Borrower so to do Lender may, at its option, declare all sums secured
by this Assignment and by the Mortgage and the other Loan Documents immediately
due and payable. This Assignment shall not operate to place any obligation or
liability for the control, care, management or repair of the Property upon
Lender, nor for the carrying out of any of the terms and conditions of the
Leases or any Lease Guaranties; nor shall it operate to make Lender responsible
or liable for any waste committed on the Property by the tenants or any other
parties, or for any dangerous or defective condition of the Property including,
without limitation, the presence of any Hazardous Substances (as defined in the
Mortgage), or for any negligence in the management, upkeep, repair or control of
the Property resulting in loss or injury or death to any tenant, licensee,
employee or stranger.
Section 4.2 NO MORTGAGEE IN POSSESSION. 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 unless caused by Lender's gross negligence, bad faith or willful
misconduct.
Section 4.3 FURTHER ASSURANCES. Borrower will, at the cost of Borrower,
and without expense to Lender, do, execute, acknowledge and deliver all and
every such further acts, conveyances, assignments, notices of assignments,
transfers and assurances as Lender shall, from time to time, reasonably require
for the better assuring, conveying, assigning, transferring and confirming unto
Lender the property and rights hereby assigned or intended now or hereafter so
to be, or which Borrower may be or may hereafter become bound to convey or
assign to Lender, or for carrying out the intention or facilitating the
performance of the terms of this Assignment or for filing, registering or
recording this Assignment and, promptly following demand, will execute and
deliver and, if Borrower shall fail to do so, hereby authorizes Lender to
execute in the name of Borrower to the extent Lender may lawfully do so, one or
more financing statements, chattel mortgages or comparable security instruments,
to evidence more effectively the lien and security interest hereof in and upon
the Leases.
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ARTICLE 5 - MISCELLANEOUS PROVISIONS
Section 5.1 CONFLICT OF TERMS. In case of any conflict between the
terms of this Assignment and the terms of the Loan Agreement, the terms of the
Loan Agreement shall prevail. In case of any conflict between the terms of this
Assignment and the terms of the Mortgage, the terms of this Assignment shall
prevail.
Section 5.2 NO ORAL CHANGE. This Assignment 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 Borrower or
Lender, but only by an agreement in writing signed by the party against whom the
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
Section 5.3 GENERAL DEFINITIONS. All capitalized terms not defined
herein shall have the respective meanings set forth in the Loan Agreement.
Unless the context clearly indicates a contrary intent or unless otherwise
specifically provided herein, words used in this Assignment may be used
interchangeably in singular or plural form and the word "Borrower" shall mean
"each Borrower and any subsequent owner or owners of the Property or any part
thereof or interest therein," the word "Lender" shall mean "Lender and any
subsequent holder of the Note, the word "Note" shall mean "the Note and any
other evidence of indebtedness secured by the Loan Agreement," the word
"Property" shall include any portion of the Property and any interest therein,
the phrases "attorneys' fees", "legal fees" and "counsel fees" shall include any
and all attorney's, paralegal and law clerk fees and disbursements, including,
but not limited to, fees and disbursements at the pre-trial, trial and appellate
levels incurred or paid by Lender in protecting its interest in the Property,
the Leases and the Rents and enforcing its rights hereunder; whenever the
context may require, any pronouns used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns and pronouns
shall include the plural and vice versa.
Section 5.4 INAPPLICABLE PROVISIONS. If any term, covenant or condition
of this Assignment is held to be invalid, illegal or unenforceable in any
respect, this Assignment shall be construed without such provision.
Section 5.5 GOVERNING LAW. (A) THIS ASSIGNMENT WAS NEGOTIATED IN THE
STATE OF NEW YORK, AND MADE BY BORROWER AND ACCEPTED BY LENDER IN THE STATE OF
NEW YORK, AND THE PROCEEDS OF THE NOTE WERE DISBURSED FROM THE STATE OF NEW
YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS ASSIGNMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF
THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE
CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS
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CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS WITH RESPECT TO
THE PROPERTY SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE
STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST
EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK
SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS
AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST
EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES
ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
ASSIGNMENT AND THE NOTE, AND THIS ASSIGNMENT AND THE NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER
ARISING OUT OF OR RELATING TO THIS ASSIGNMENT MAY AT LENDER'S OPTION BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND
BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE
AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT,
ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
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OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
Section 5.6 TERMINATION OF ASSIGNMENT. Upon payment in full of the
Debt, this Assignment shall become and be void and of no effect.
Section 5.7 NOTICES. All notices or other written communications
hereunder shall be delivered in accordance with Section 11.6 of the Loan
Agreement.
Section 5.8 WAIVER OF TRIAL BY JURY. BORROWER HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING
DIRECTLY OR INDIRECTLY TO THE LOAN EVIDENCED BY THE NOTE, THE APPLICATION FOR
THE LOAN EVIDENCED BY THE NOTE, THIS ASSIGNMENT, THE NOTE, OR THE OTHER LOAN
DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS
OR AGENTS IN CONNECTION THEREWITH.
Section 5.9 EXCULPATION. The provisions of Section 11.22 of the Loan
Agreement are hereby incorporated by reference into this Assignment to the same
extent and with the same force as if fully set forth herein.
Section 5.10 SUCCESSORS AND ASSIGNS. This Assignment shall be binding
upon and inure to the benefit of Borrower and Lender and their respective
successors and assigns forever.
Section 5.11 HEADINGS, ETC. The headings and captions of various
paragraphs of this Assignment 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.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, Borrower has executed this Assignment the
day and year first above written.
CEDAR-FRANKLIN VILLAGE LLC,
a Delaware limited liability company
By: Cedar-Franklin Village 2 LLC, a Delaware
limited liability company, its sole member
By: Cedar Shopping Centers Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Cedar Shopping Centers, Inc., a
Maryland corporation, its
general partner
By: _____________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ACKNOWLEDGMENT
[INSERT STATE SPECIFIC ACKNOWLEDGMENT]
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT B
DESCRIPTION OF LEASES AND RENTS
As used in Subsection 1.1(a), the term "leases" shall mean all leases,
subleases, licenses, franchises, concessions or grants of other possessory
interests, tenancies, and any other agreements affecting the use, possession or
occupancy of the Property or any part thereof (including, without limitation,
guest rooms, restaurants, bars, conference and meeting rooms, and banquet halls
and other public facilities), whether now or hereafter existing or entered into
(including, without limitation, any use or occupancy arrangements created
pursuant to Section 365(d) of the Bankruptcy Code or otherwise in connection
with the commencement or continuance of any bankruptcy, reorganization,
arrangement, insolvency, dissolution, receivership or similar proceedings, or
any assignment for the benefit of creditors, in respect of any tenant or
occupant of any portion of the Property) and all amendments, modifications,
supplements, extensions or renewals thereof, whether now or hereafter existing
and all amendments, modifications, supplements, extensions or renewals thereof.
As used in Subsection 1.1(a) the term "lease provisions" shall mean the right to
enforce, whether at law or in equity or by any other means, all terms, covenants
and provisions of the Leases.
As used in Subsection 1.1(c), the term "rents" shall mean all rents,
issues, profits, royalties (including all oil and gas or other hydrocarbon
substances), earnings, receipts, revenues, accounts, account receivable,
security deposits and other deposits (subject to the prior right of the tenants
making such deposits) and income, including, without limitation, fixed,
additional and percentage rents, and all operating expense reimbursements,
reimbursements for increases in taxes, sums paid by tenants to Borrower to
reimburse Borrower for amounts originally paid or to be paid by Borrower or
Borrower's agents or affiliates for which such tenants were liable, as, or
example, tenant improvements costs in excess of any work letter, lease takeover
costs, moving expenses and tax and operating expense pass-throughs for which a
tenant is solely liable, parking, maintenance, common area, tax, insurance,
utility and service charges and contributions, proceeds of sale of electricity,
gas, heating, air-conditioning and other utilities and services, deficiency
rents and liquidated damages, and other benefits now or hereafter derived from
any portion of the Property or otherwise due and payable or to become due and
payable as a result of any ownership, use, possession, occupancy or operation
thereof and/or services rendered, goods provided and business conducted in
connection therewith (including any payments received pursuant to Section 502(b)
of the Bankruptcy Code or otherwise in arrangement, insolvency, dissolution,
receivership or similar proceedings, or any assignment for the benefit of
creditors, in respect of any tenant or other occupants of any portion of the
Property and all claims as a creditor in connection with any of the foregoing)
and all cash or security deposits, advance rentals, and all deposits or payments
of a similar nature relating thereto, now or hereafter, including during any
period of redemption, derived from the Property or any portion thereof and all
proceeds from the cancellation, surrender, sale or other disposition of the
Leases.