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ASSIGNMENT OF LEASES AND
RENTS
This ASSIGNMENT OF LEASES
AND RENTS dated as of ___________, 2008
(the “ Assignment
”), is executed by APPLE ORCHARD, L.L.C. , a Michigan
limited liability company, whose address is 27777 Franklin Road,
Suite 200, Southfield, Michigan 48034 (the “
Mortgagor ”), to
and for the benefit of LASALLE BANK
MIDWEST NATIONAL ASSOCIATION , a national
banking association, whose address is 2600 West Big Beaver Road,
Troy, Michigan 48084, its successors and assigns (the
“ Bank ”).
R E C
I T A
L S :
A. APPLE
ORCHARD, L.L.C. , a Michigan limited
liability company; SUN LAKEVIEW
LLC , a Michigan limited liability
company; and SUN TAMPA EAST,
LLC , a Michigan limited liability
company (collectively, the " Borrower "), desires to borrow funds
and obtain other financial accommodations from the Bank, including,
without limitation, a loan evidenced by a promissory note from the
Borrower to the Bank, dated _____________________, in the principal
amount of TWENTY SEVEN MILLION and 00/100 Dollars ($27,000,000.00)
(as amended, restated or replaced from time to time, the "
Note ").
B.
Mortgagor has granted to the Bank a mortgage (the
" Mortgage ")
covering certain real property situated in the State of Ohio, as
more particularly described in Exhibit A attached hereto (the
" Property "),
as security for the Loan evidenced by the Note.
C.
Mortgagor has demised or hereafter will demise the
Property or a part thereof by a certain lease or leases for certain
terms.
D.
The Bank, as a condition for making the Loan secured
by the Mortgage, has required an assignment of the leases and the
rents, issues and profits derived from the use of the Property and
every part thereof, as additional security for the payment of the
indebtedness secured by the Mortgage.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
Mortgagor agrees as follows:
A G R E E M E N T S:
In order to provide additional security for the
payment of the principal and interest of the indebtedness secured
by the Mortgage, and all other amounts payable by Mortgagor
thereunder, and any
1
and all extensions and renewals thereof, however
evidenced, and the performance of the covenants and conditions
hereof, Mortgagor hereby covenants and agrees to and with the Bank
as follows:
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1.
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Mortgagor does hereby sell, assign, transfer and set
over unto the Bank all the rents, profits and income under all
leases or occupancy agreements or arrangements, however evidenced
or denominated, upon or affecting the Property, as defined in the
Mortgage (including any extensions, amendments or renewals
thereof), whether such rents, profits and income are due or are to
become due, including all such leases in existence or coming into
existence during the period this assignment is in effect. This
assignment shall run with the land until this assignment is
discharged in full and be good and valid as against Mortgagor and
those claiming by, under or through Mortgagor, from the date of
recording of this assignment. This assignment shall continue to be
operative during the foreclosure or any other proceedings taken to
enforce the Mortgage. In the event of a foreclosure sale which
results in a deficiency, this assignment shall stand as security
during the redemption period for the payment of such deficiency.
This assignment is given as collateral security only and does not
and shall not be construed as obligating the Bank to perform any of
the covenants or undertakings required to be performed by Mortgagor
in any leases.
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2.
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Mortgagor covenants and agrees not to cancel, accept
a surrender of, modify or alter (orally or in writing), reduce the
rental under or consent to the assignment or subletting of the
lessee's interest in, any lease affecting the Property, except in
the ordinary course of business and on commercially reasonable
terms, or to make any other assignment, pledge or other disposition
of such leases, or any of them, or of the rents, issues and profits
derived from the use of the Property. Any of the above acts, if
done without the written consent of the Bank, shall be null and
void.
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3.
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Mortgagor warrants and represents that all leases or
copies of leases which have been delivered to the Bank are in full
force and effect and there are no defaults existing thereunder, and
that Mortgagor has not: (a) executed any prior assignments
presently subsisting of any leases or rentals pertaining to the
Property, (b) performed any acts or executed any other instruments
which might prevent or limit the Bank's operating under any of the
terms and conditions of the Mortgage, (c) executed or granted any
modification whatever of any lease pertaining to the Property which
has not been disclosed to the Bank, or (d) subordinated any lease
to the lien of the Mortgage, except on terms acceptable to the
Bank.
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4.
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Until the occurrence of an Event of Default under
the Mortgage or until the Mortgagor shall default in the
performance of any its obligations under this assignment, Mortgagor
may receive, collect and enjoy the rents and income from the
Property. Upon the occurrence of an Event of Default under the
Mortgage or a default by the Mortgagor in the performance of any
its obligations under this assignment, the Bank shall be entitled
to, at its option, to enter upon the Property, or any part thereof,
by its officers, agents, or employees, and: (a) collect the rents
and income from the Property as long as an Event of Default under
the Mortgage or a default by the Mortgagor in the performance of
any its obligations under this assignment exists and during the
pendency of any foreclosure proceedings and, if there is a
deficiency, during any redemption period, (b) rent or lease the
Property or any portion thereof upon such terms and for such time
as it may deem best, (c) operate or maintain the Property, (d)
maintain proceedings to recover rents or possession of the Property
from any tenant or trespasser, and apply the net proceeds of such
rent and income, after payment of all proper charges and expenses,
to the following purposes: (1) payment of all of the costs and
expenses incurred by the Bank in exercising its rights under this
paragraph; (2) payment of interest and principal secured by the
Mortgage; (3) payment of all other sums secured hereby; (4) payment
of expenses of preserving the Property, including taxes and
insurance premiums. Notwithstanding the foregoing, the Bank, in its
sole discretion, may change the priorities set forth above for the
application of the net proceeds of
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such rent and income. The Mortgagor hereby
authorizes the Bank in general to perform all acts necessary for
the operation and maintenance of the Property in the same manner
and to the same extent that the Mortgagor might reasonably so act.
The Bank shall only be accountable for money actually received by
it pursuant to the assignment contained in this paragraph. Such
entry and taking possession of the Property, or any part thereof,
by the Bank, may be made by actual entry and possession, or by
written notice served personally upon or sent by certified mail to
the last address of the Mortgagor appearing on the records of the
Bank, as the Bank may elect, and no further authorization or notice
shall be required. BORROWER HEREBY WAIVES
ANY RIGHT TO NOTICE, OTHER THAN THE NOTICE PROVIDED ABOVE AND
WAIVES ANY RIGHT TO ANY HEARING JUDICIAL OR OTHERWISE PRIOR TO THE
BANK EXERCISING ITS RIGHTS UNDER THE ASSIGNMENT CONTAINED IN THIS
PARAGRAPH.
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5.
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The Bank and its duly authorized agents shall be
entitled to enter the Property for the purpose of delivering any
and all such notices and other communications to the tenants and
occupiers thereof or to take such other steps as shall be necessary
or desirable in the Bank's discretion to exercise its rights
hereunder, and the Bank and its agents shall have absolutely no
liability to Mortgagor arising therefrom, except for gross
negligence or willful misconduct. The Bank shall not, however, be
obligated to give any tenant or occupier of the Property any notice
by personal delivery and the Bank may, in its sole discretion,
deliver all such notices and communications by ordinary first-class
U.S. mail, postage prepaid, or otherwise.
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6.
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The Mortgagor irrevocably consents that any lessee
or lessees under any leases covering the Property, upon demand and
notice from the Bank of Mortgagor's default under the Mortgage or
this assignment, shall pay all rents, issues and profits under such
leases to the Bank without any obligation upon any such lessee or
lessees for the determination of the actual existence of any
default.
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7.
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In the event that Mortgagor obstructs the Bank in
its efforts to collect the rents and income from the Property, or
after requested by the Bank, unreasonably refuses, fails or
neglects to assist the Bank in collecting such rent and income, the
Bank shall be entitled to the appointment of a receiver of the
Property and of the income, rents and profits therefrom, with such
powers as the court making such appointment may confer.
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8.
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The Mortgagor covenants and agrees to perform and
discharge each and every obligation, covenant, and agreement
required to be performed by the landlord under all leases covering
the Property, and should the Mortgagor fail so to do, then the
Bank, but without obligation to do so, and without releasing the
Mortgagor from any obligation hereof, may make or do the same in
such manner and to such extent as the Bank may deem necessary to
protect the security hereof. Nothing herein contained shall be
construed to bind the Bank to perform any of the terms and
provisions contained in the leases, or otherwise to impose any
obligation upon the Bank. Any default by the Mortgagor in the
performance of any of the obligations contained in this paragraph,
which is not cured within 30 days after notice thereof from the
Bank to Mortgagor, or, if the default is of a kind which cannot be
cured within 30 days, if Mortgagor fails to undertake the cure of
such default within 30 days after notice thereof from the Bank to
Mortgagor and thereafter diligently pursue such cure and complete
it within a reasonable time, shall constitute and be deemed to be a
default under the terms of the Mortgage and this assignment
entitling the Bank to exercise the rights and remedies provided by
the Mortgage and this assignment.
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9.
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The Bank shall at no time have any obligation
whatever to attempt to collect rent from any tenant or occupier of
the Property notwithstanding that such tenants and occupiers may
not be paying rent to
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either Mortgagor or to the Bank. Further, the Bank
shall at no time have any obligation whatever to enforce any other
obligations owed by tenants or occupiers of the Property to
Mortgagor. No action taken by the Bank under the Mortgage or this
assignment shall put the Bank in the position of a "mortgagee in
possession."
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10.
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Mortgagor shall at no time collect advance rent
under any lease upon, affecting or pertaining to the Property or
any part thereof in excess of one month (other than as a security
deposit) and the Bank shall not be bound in any respect
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