FILED: QUEENS COUNTY CLERK 05/06/2024 06:18 PM
`NYSCEF DOC. NO. 56
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`INDEX NO. 703084/2024
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`RECEIVED NYSCEF: 05/06/2024
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`Exhibit E
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`FILED: QUEENS COUNTY CLERK 05/06/2024 06:18 PM
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`NYC DEPARTMENT OF FINANCE
`OFFICE OF THE CITY REGISTER
`This page is part of the instrument. The City
`Register will rely on the information provided
`by you on this page for purposes of indexing
`this instrument.The information on this page
`will control for indexing purposes in the event
`of any conflict with the rest of the document.
`
`1
`2018081000164002001E4CA7
`RECORDING AND ENDORSEMENT COVER PAGE PAGE 1 OF 17
`Document ID: 2018081000164002 Document Date: 07-31-2018 Preparation Date: 08-10-2018
`Document Type: ASSIGNMENT OF LEASES AND RENTS
`Document Page Count: 16
`PRESENTER:
`FEDERAL STANDARD ABSTRACT, INC. (PICK-UP)
`1 36-36 MAIN STREET
`FLUSHING, NY 11354
`718-888-7778
`RECORDING@FEDERALS TANDARDAB STRACT. C OM
`
`RETURN TO:
`HAHN & HESSEN LLP
`ATTN: RHONA J KISCH, ESQ
`488 MADISON AVENUE
`NEW YORK, NY 10022
`FSA168-05411Q/VC
`
`PROPERTY DATA
`Borough Block Lot Unit Address
`QUEENS 374 12 Entire Lot 37-21 32ND STREET
`Property Type: COMMERCIAL REAL ESTATE
`
`Document ID: 2018081000164001
`
`CROSS REFERENCE DATA
`
`ASSIGNOR:
`SHANGRI-LA ASTORIA INC.
`3626 MAIN STREET STE 3A
`FLUSHING, NY 11354
`
`PARTIES
`ASSIGNEE:
`CATHAY BANK
`A CALIFORNIA BANKING CORPORATION, 235 5TH
`AVENUE
`NEW YORK, NY 10016
`
`TAXES
`FEES AND
`Filing Fee:
`
`Mortgage:
`Mortgage Amount:
`$ 23,000,000.00
`Taxable Mortgage Amount:
`$ 0.00
`Exemption:
`255
`TAXES: County (Basic):
`$ 0.00
`$ 0.00
`City (Additional):
`Spec (Additional): $ 0.00
`TASF:
`$ 0.00
`
`NYCTA :
`Additional MRT:
`TOTAL:
`Recording Fee:
`Affidavit Fee:
`
`$ 0.00
`$ 0.00
`$ 0.00
`$ 117.00
`$ 8.00
`
`$ 0.00
`NYC Real Property Transfer Tax:
`$ 0.00
`NYS Real Estate Transfer Tax:
`$ 0.00
`RECORDED OR FILED IN THE OFFICE
`OF THE CITY REGISTER OF THE
`CITY OF NEW YORK
`A t 4 Recorded/Filed 08-13-2018 15:24
`... , City Register File No.(CRFN):
`' 2018000270763
`
`City Register Official Signature
`
`

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`FILED: QUEENS COUNTY CLERK 05/06/2024 06:18 PM
`ic,r29i7jj (2
`NYSCEF DOC. NO. 56
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`ASSIGNMENT OF LEASES AND RENTS
`Dated: As of July V, 2018
`
`from
`
`SHANGRI-LA ASTORIA INC. as assignor,
`a New York corporation,
`
`to
`
`CATHAY BANK, as Lender, as assignee,
`a California banking corporation
`
`County of • . Queens
`City of • . Long Island City
`State of • . New York
`Block 374
`Lots 12
`
`After recording, please return to:
`
`Hahn & Hessen LLP
`488 Madison Avenue
`New York, NY 10022
`Attention: RhonaJ. Kisch, Esq.
`
`175017/003-6944599.3
`
`

`

`FILED: QUEENS COUNTY CLERK 05/06/2024 06:18 PM
`NYSCEF DOC. NO. 56
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`INDEX NO. 703084/2024
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`RECEIVED NYSCEF: 05/06/2024
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`THIS ASSIGNMENT OF LEASES AND RENTS (as amended, restated,
`amended and restated, suppleented or otherwise modified from time to time, this
`"Assignment") made as of July L72018, by SHANGRI-LA ASTORIA INC., a New York
`corporation, as assignor, having its principal place of business at 3626 Main Street, Suite
`3A, Flushing NY 11354 ("Borrower"), to CATHAY BANK, a California banking, having
`an office at 235 Fifth Avenue, New York, New York 10016, as Lender under the Building
`Loan Agreement (hereinafter defined), (together with its successors in such capacity, the
`"Assignee").
`
`RECITALS:
`
`WHEREAS, Assignee has entered into with Borrower, that certain Building
`Loan Agreement, dated as of the date hereof, (as same may be hereinafter amended,
`modified, restated, replaced or supplemented from time to time, the "Building Loan
`Agreement"), pursuant to which the Assignee has agreed to make a Building Loan to
`Borrower in a total principal amount of up to TWENTY-THREE MILLION Dollars
`($23,000,000.00), which Building Loan is evidenced by a certain Building Loan Note, dated
`of even date herewith (as same may be hereinafter amended, modified, restated, replaced or
`supplemented from time to time, collectively, the "Note"), in favor of the Assignee, and
`which are secured pursuant to that certain Building Loan Mortgage and Security Agreement
`dated as of even date hereof (as the same may be hereafter amended, modified, restated,
`renewed, replaced, supplemented or extended, being hereinafter called the "Mortgage") and
`the Note, Building Loan Agreement and other Loan Documents;
`
`WHEREAS, to further induce Assignee to make the Building Loan, and it is
`a condition of making the Building Loan that Borrower shall have executed and delivered
`this Assignment to Assignee; and
`
`WHEREAS, all capitalized terms used in this Assignment, but not defined
`herein, shall have the respective meanings accorded such terms in the Mortgage.
`
`NOW THEREFORE, in consideration of the making of the Building Loan
`and the covenants, agreements, representations and warranties set forth in this Assignment,
`the parties hereto hereby agree as follows:
`
`ARTICLE 1- ASSIGNMENT
`
`Section 1.1 PROPERTY ASSIGNED. Borrower hereby absolutely,
`irrevocably and unconditionally transfers, assigns, sets over and grants to Assignee and any
`Affiliate Counterparty or any other Affiliate holding any Obligations the following property,
`rights, interests and estates, now owned, or hereafter acquired by Borrower:
`
`(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
`
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`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. §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.
`
`(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", and collectively, the "Lease Guaranties") given by any
`guarantor in connection with any of the Leases or leasing commissions (individually, a
`"Lease Guarantor", and collectively, the "Lease Guarantors") to Borrower.
`
`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
`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 Assignee's option, upon revocation of the license
`granted herein, to enter upon the Property in person, by Assignee or by court-appointed
`receiver, to collect the Rents.
`
`(i) Power of Attorney. Borrower's irrevocable power of attorney, coupled
`with an interest, to take any and all of the actions set forth in Section 3.1 of this Assignment
`
`2
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`and any or all other actions designated by Assignee for the proper management and
`preservation of the Property.
`(i) 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. Borrower intends that
`this Assignment constitute a present, absolute assignment of the Leases, Rents, Lease
`Guaranties and Bankruptcy Claims, and not an assignment for additional security only.
`Nevertheless, subject to the terms of this Section 2.1 and Section 3.1 hereof, Assignee grants
`to Borrower a revocable license to collect and receive the Rents, as well as other sums due
`under the Lease Guaranties. Borrower shall hold the Rents, as well as all sums received
`pursuant to any Lease Guaranty, or a portion thereof sufficient to discharge all current sums
`due on the Obligations, in trust for the benefit of Assignee, for itself and as agent for any
`Affiliate Counterparty, 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 Assignee or to such other party as Assignee directs all
`Rents and all sums due under any Lease Guaranties upon receipt from Assignee of written
`notice to the effect that Assignee is then the holder of this Assignment and that an Event of
`Default (as set forth in Article II of the Mortgage) exists, and to continue so to do until
`otherwise notified by Assignee.
`
`Section 2.3 Incorporation by Reference. All representations, warranties,
`covenants, conditions and agreements contained in the Building Loan Agreement, the
`Mortgage, the other Loan Documents and any Hedging Contract, as same may be
`modified, renewed, substituted, replaced 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.
`
`Section 2.4 Representations and Warranties of Borrower. Borrower hereby
`represents and warrants as follows:
`
`(a) Borrower is the sole and absolute owner of the entire landlord's or
`lessor's interest in the Leases and said rents, issues and profits;
`
`(b) Borrower has made no prior assignment of any of the Leases or with
`respect to any of said rents, issues or profits, which has not been terminated or extinguished;
`
`(c) Borrower has neither done any act nor omitted to do any act which
`might prevent Assignee from, or limit Assignee in, acting under any of the provisions of this
`Assignment;
`
`3
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`(d) Neither the execution and delivery of this Assignment or any of the
`Leases, the performance of each and every covenant of Borrower under this Assignment
`and the Leases, nor the meeting of each and every condition contained in this Assignment,
`conflicts with, or constitutes a breach or default under, any agreement, indenture or other
`instrument to which Borrower is a party, or any law, ordinance, administrative regulation or
`court decree which is applicable to Borrower;
`
`(e) No action has been brought or, so far as is known to Borrower, is
`threatened, which would interfere in any way with the right of Borrower to execute this
`Assignment and perform all of Borrower's obligations contained in this Assignment and in
`the Leases;
`
`(f) Borrower has delivered to Assignee correct and complete copies of all
`Leases existing as of the date of this Assignment, and all amendments, exhibits, addenda
`and schedules thereto, if any (the "Existing Leases");
`
`(g) There are no occupancies, rights, privileges or licenses in or to the
`Property other than pursuant to the Existing Leases. The Existing Leases were duly
`executed and delivered, pursuant to authority legally adequate therefor, are now in full force
`and effect, and are the legal, valid and binding obligations of the parties thereto, enforceable
`in accordance with their terms. The Existing Leases accurately and completely set forth all
`rents payable by and security, if any, required to be deposited by tenants, and no tenant has
`paid more than one (1) month's rent in advance;
`
`(h) All tenant improvements or work to be done, furnished or paid for by
`Borrower, or credited or allowed to a tenant, for, or in connection with, the Property
`pursuant to any Lease has been completed and paid for or provided for in a manner
`satisfactory to Assignee. No leasing, brokerage or like commissions, fees or payments are
`due from Borrower in respect of the Leases; and
`
`(i) No default exists on the part of Borrower in the fulfillment,
`performance or observance of any of the terms, conditions or covenants of landlord or lessor
`contained in any of the Leases, and (i) no payment default or any other material default
`exists on the part of any tenant in the fulfillment, performance or observance of any of the
`terms, conditions or covenants of tenant or lessee contained in any of the Leases, (ii) to the
`best of Borrower's knowledge, there any no defenses, counterclaims, offsets, concessions or
`rebates available to any tenant thereunder, (iii) Borrower has not given or made, or received,
`any notice of default, or any claim, which remains uncured or unsatisfied, with respect to
`any of the Leases and (iv) to the best of Borrower's knowledge, there is no basis for any such
`claim or notice of default by any tenant.
`
`ARTICLE 3- REMEDIES
`
`Section 3.1 Remedies of Assignee. Upon the occurrence of an Event of
`Default, the license granted to Borrower in Section 2.1 of this Assignment shall
`automatically be revoked, and Assignee shall immediately be entitled to possession of all
`
`4
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`FILED: QUEENS COUNTY CLERK 05/06/2024 06:18 PM
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`Rents and sums due under any Lease Guaranties, whether or not Assignee enters upon or
`takes control of the Property. In addition, Assignee may, at its option, without waiving
`such Event of Default, without regard to the adequacy of the security for the Obligations,
`either in person or by Assignee's nominee or attorney, with or without bringing any action
`or proceeding, or by a receiver appointed by a court, (i) 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, (ii) take possession of the
`Property and all books, records and accounts relating thereto, (iii) hold, manage, lease and
`operate the Property on such terms and for such period of time as Assignee may deem
`proper, (iv) either with or without taking possession of the Property, in its own name,
`demand, sue for or otherwise collect and receive all Rents and sums due under all Lease
`Guaranties, including those past due and unpaid, and (v) make from time to time all such
`alterations, renovations, repairs or replacements to the Property as Assignee may deem
`proper. Assignee may apply the Rents collected and sums received under any Lease
`Guaranties pursuant hereto to the payment of the following in such order and proportion as
`Assignee 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
`limitation, the salaries, fees and wages of a managing agent, attorneys and such other
`employees or agents as Assignee may reasonably deem necessary or desirable and all
`reasonable expenses of operating and maintaining the Property, including, without
`limitation, all taxes, charges, claims, assessments, water charges, sewer rents and any other
`liens, and premiums for all insurance which Assignee may reasonably deem necessary or
`desirable, and the reasonable cost of all alterations, renovations, repairs or replacements,
`and all expenses incidental to taking and retaining possession of the Property, and (b) all
`other Obligations, including, without limitation, all costs and expenses, including
`reasonable attorneys' fees, incurred in the collection of any of all of the Obligations,
`including all costs, expenses and attorneys' fees incurred in seeking to realize on or to
`protect or preserve Assignee's interest in any other collateral securing any or all of the
`Obligations. In addition, upon the occurrence of an Event of Default, Assignee, at its
`option, may (1) complete any construction on the Property in such manner and form as
`Assignee deems advisable, (2) exercise all rights and powers of Borrower, including, without
`limitation, the right to negotiate, execute, cancel, enforce or modify Leases, obtain and evict
`tenants, and demand, sue for, collect and receive all Rents from the Property and all sums
`due under any Lease Guaranties, (3) either require Borrower to pay monthly in advance to
`Assignee, 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 Assignee 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 Assignee pursuant to the power and rights granted to Assignee
`hereunder shall be deemed to be a waiver by either Assignee of its rights and remedies under
`the Building Loan Agreement, the Mortgage, the Note, the other Loan Documents or any
`Hedging Contract and this Assignment is made and accepted without prejudice to any of the
`rights and remedies possessed by Assignees under the terms thereof. The right of each
`
`5
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`FILED: QUEENS COUNTY CLERK 05/06/2024 06:18 PM
`NYSCEF DOC. NO. 56
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`INDEX NO. 703084/2024
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`RECEIVED NYSCEF: 05/06/2024
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`Assignee to collect the Obligations, and to enforce any other security therefor held by it may
`be exercised by such Assignee either prior to, simultaneously with, or subsequent to any
`action taken by Assignee 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
`Building Loan Agreement, the Mortgage, the Note, the other Loan Documents, any
`Hedging Contract or otherwise with respect to the Building Loan or any Hedging
`Obligations in any action or proceeding brought by either Assignee to collect same, or any
`portion thereof, or to enforce and realize upon the lien and security interest created by this
`Assignment, the Building Loan Agreement, the Mortgage, the Note, any of the other Loan
`Documents or any Hedging Contract (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 either Assignee in any
`separate action or proceeding).
`
`Section 3.3 Other Security. Assignees may take or release other security for
`the payment of the Obligations, may release any party primarily or secondarily liable
`therefor and may apply any other security held by either of them to the reduction or
`satisfaction of the Obligations, without prejudice to any of its rights under this Assignment.
`
`Section 3.4 Non-Waiver. The exercise by Assignee of the option granted it
`in Section 3.1 of this Assignment and the collection of the Rents and sums due under the
`Lease Guaranties and the application thereof as herein provided shall not be considered a
`waiver of any default by Borrower under the Note, the Building Loan Agreement, the
`Mortgage, the Leases, this Assignment, the other Loan Documents or any Hedging
`Contract. The failure of Assignee 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 either Assignee
`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 Building Loan Agreement, the Mortgage, the Note, the
`other Loan Documents or any Hedging Contract, (b) the release regardless of consideration,
`of the whole or any part of the Property, or (c) any agreement or stipulation by either
`Assignee extending the time of payment or otherwise modifying or supplementing the terms
`of this Assignment, the Building Loan Agreement, the Mortgage, the Note, the other Loan
`Documents or any Hedging Contract. Each Assignee may resort for the payment of the
`Obligations to any other security held by it in such order and manner as set forth in the
`Mortgage. Each Assignee may take any action to recover the Obligations, or any portion
`thereof, or, in the case of Assignee, to enforce any covenant hereof without prejudice to the
`right of Assignee thereafter to enforce its rights under this Assignment. The rights of
`Assignee under this Assignment shall be separate, distinct and cumulative and none shall be
`given effect to the exclusion of the others. No act of Assignee 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 of an
`Event of Default, Assignee, for itself and as agent for any Affiliate Counterparty, shall have
`
`6
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`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
`Assignee 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. Assignee shall have the right, but
`not the obligation, to serve upon Borrower within such ten-day period a notice stating that
`(i) Assignee demands that Borrower assume and assign the Lease to Assignee pursuant to
`Section 365 of the Bankruptcy Code and (ü) Assignee covenants to cure or provide adequate
`assurance of future performance under the Lease. If Assignee 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
`Assignee of the covenant provided for in clause (ii) of the preceding sentence.
`
`ARTICLE 4- NO LIABILITY, FURTHER ASSURANCES
`
`Section 4.1 No Liability of Assignee. This Assignment shall not be
`construed to bind Assignee to the performance of any of the covenants, conditions or
`provisions contained in any Lease or Lease Guaranty or otherwise impose any obligation
`upon Assignee. Assignee shall not be liable for any loss sustained by 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 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
`Assignee, any Affiliate Counterparty and its other Affiliates for, and hold Assignee, any
`Affiliate Counterparty and its other Affiliates haiinless from, any and all liability, loss or
`damage that 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 that may be asserted against Assignee,
`any Affiliate Counterparty or any of its other Affiliates 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. Should Assignee, any
`Affiliate Counterparty or its other Affiliates incur any such liability, the amount thereof,
`including costs, expenses and reasonable attorneys' fees, shall be secured by this Assignment
`and by the Building Loan Agreement, the Mortgage and the other Loan Documents and
`Borrower shall reimburse Assignee, any Affiliate Counterparty and its other Affiliates
`therefor immediately upon demand and upon the failure of Borrower to do so, Assignee
`may, at its option, declare all sums secured by this Assignment and by the Building Loan
`Agreement, the Mortgage, the other Loan Documents and any Hedging Contract
`
`7
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`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 Assignee, any
`Affiliate Counterparty or any of its other Affiliates, 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
`Assignee, any Affiliate Counterparty or its other Affiliates 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 ADA and Environmental Indemnity (defined in
`the Building Loan Agreement)), 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 establishing Lender as a "mortgagee in possession" in the absence of the
`taking of actual possession of the Property by Assignee. In the exercise of the powers herein
`granted Assignee, no liability shall be asserted or enforced against Assignee, all such liability
`being expressly waived and released by Borrower.
`
`Section 4.3 Further Assurances. Borrower will, at the cost of Borrower,
`and without expense to Assignee, 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 Assignee 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 Assignee, 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, on demand, will execute and deliver and hereby authorizes
`Assignee to execute in the name of Borrower to the extent Assignee 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.
`
`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 Building Loan Agreement, the terms of the Building
`Loan Agreement shall control and prevail.
`
`Section 5.2 No Oral Change. This Assignment and any provisions hereof
`may not be modified, amended, waived, restated, amended and restated, extended,
`changed, discharged or terminated orally, or by any act or failure to act on the part of
`Borrower, 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 including, if required pursuant to the Building Loan Agreement or the
`Mortgage, any Affiliate Counterparty.
`
`8
`
`

`

`FILED: QUEENS COUNTY CLERK 05/06/2024 06:18 PM
`NYSCEF DOC. NO. 56
`
`INDEX NO. 703084/2024
`
`RECEIVED NYSCEF: 05/06/2024
`
`Section 5.3 General Definitions. All capitalized terms not defined herein
`shall have the respective meanings set forth in the Mortgage. 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 "Borrower and any subsequent owner or owners of the Property or
`any part thereof or interest therein," the word "Lender" shall mean "each Lender and any
`subsequent holder of any Note or any part thereof", the word "Affiliate Counterparty" shall
`mean "each Affiliate Counterparty and any subsequent party to any Hedging Contract
`relating to the Building Loan Agreement and the Note with Borrower", the word "Note"
`shall mean "the Notes and any other evidence of Obligations secured by the Building Loan
`Agreement, the Mortgage or other Loan Documents," the word "Hedging Contract" shall
`mean "any Hedging Contract and any other evidence of Obligations secured by the
`Mortgage or other Loan Documents," 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, 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 Assignee 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/Venue.
`
`(a) The enforcement of this Assignment shall be governed, construed and
`interpreted by the laws of the State of New York (the "State") (without giving effect to the
`State's principles of conflicts of law).
`
`(b) BORROWER HEREBY EXPRESSLY, IRREVOCABLY AND
`UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION
`OR PROCEEDING BROUGHT BY OR ON BEHALF OF ASSIGNEE ON THIS
`ASSIGNMENT, ANY AND EVERY RIGHT BORROWER MAY HAVE (I) TO
`OBJECT TO THE JURISDICTION OR VEN