ASSIGNMENT OF RENTS AND LEASES
THIS ASSIGNMENT OF RENTS AND LEASES (the "Assignment") is
made as of the 28th day of December, 2001 by STANDARD MANAGEMENT
CORPORATION ("Assignor"), to and for the benefit of REPUBLIC
BANK, a Michigan Commercial Bank ("Assignee").
R E C I T A L S:
A. Assignee has agreed to loan to Assignor the principal
amount of up to Six Million Nine Hundred Thousand Dollars
($6,900,000.00) (the "Loan"). Assignor is executing a certain
Promissory Note of even date herewith (the "Note") to evidence
the Loan.
B. A condition precedent to Assignee's extension of the
Loan to Assignor is the execution and delivery by Assignor of
this Assignment.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto mutually agree as follows:
1. Definitions. All capitalized terms which are not
defined herein shall have the meanings ascribed thereto in the
Note.
2. Grant of Security Interest. Assignor hereby grants,
transfers, sets over and assigns to Assignee, all of the right,
title and interest of Assignor in and to (i) all of the rents,
issues, profits, revenues, receipts, income, accounts and other
receivables arising out of or from the land legally described in
Exhibit A attached hereto and made a part hereof and all
buildings and other improvements located thereon (said land and
improvements being hereinafter referred to collectively as the
"Premises"); (ii) all leases and subleases (collectively, the
"Leases"), now or hereafter existing, of all or any part of the
Premises; (iii) all rights and claims for damage against tenants
arising out of defaults under the Leases, including rights to
compensation with respect to rejected Leases pursuant to Section
365(a) of the Federal Bankruptcy Code or any replacement Section
thereof; (iv) all tenant improvements and fixtures located on the
Premises; and (v) all guaranties relating to the Leases. This
Assignment is given to secure:
(a) Payment by Assignor when due of (i) the
indebtedness evidenced by the Note and any and all renewals,
extensions, replacements, amendments, modifications and
refinancings thereof; (ii) any and all other indebtedness
and obligations that may be due and owing to Assignee by
Assignor under or with respect to the Loan Documents (as
defined in the Note); and (iii) all costs and expenses paid
or incurred by Assignee in enforcing its rights hereunder,
including without limitation, court costs and reasonable
attorneys' fees; and
(b) Observance and performance by Assignor of the
covenants, conditions, agreements, representations,
warranties and other liabilities and obligations of
Assignor or any other obligor to or benefiting Assignee
which are evidenced or secured by or otherwise provided in
the Note, this Assignment or any of the other Loan
Documents, together with all amendments and modifications
thereof.
3. Representations and Warranties of Assignor. Assignor
represents and warrants to Assignee that:
(a) this Assignment, as executed by Assignor,
constitutes the legal and binding obligation of Assignor
enforceable in accordance with its terms and provisions;
(b) Assignor has not made any other assignment of its
entire or any part of its interest in or to any of the
Leases, or any of the rents, issues, income or profits
assigned hereunder, nor has Assignor entered into any
agreement to subordinate any of the Leases or Assignor's
right to receive any of the rents, issues, income or profits
assigned hereunder;
(c) Assignor has not heretofore executed any
instrument or performed any act which may prevent Assignee
from operating under any of the terms and provisions hereof
or which would limit Assignee in such operation; and
4. Covenants of Assignor. Assignor covenants and agrees
that so long as this Assignment shall be in effect and except
for Assignor's acts in the ordinary course of business:
(a) Assignor shall not lease any portion of the
Premises unless the lease is consistent with rental rates
for comparable office buildings in the north suburban
Indianapolis, Indiana metropolitan area;
(b) Assignor shall observe and perform all of the
covenants, terms, conditions and agreements contained in the
Leases to be observed or performed by the lessor thereunder,
and Assignor shall not do or suffer to be done anything to
impair the security thereof. Assignor shall not, except in
the ordinary course of business, (i) release the liability
of any tenant under any Lease, (ii) consent to any tenant's
withholding of rent or making monetary advances and off-
setting the same against future rentals, (iii) consent to
any tenant's claim of a total or partial eviction, (iv)
consent to any tenant termination or cancellation of any
Lease, or (v) enter into any oral leases with respect to all
or any portion of the Premises;
(c) Assignor shall not collect any of the rents,
issues, income or profits assigned hereunder more than
thirty (30) days in advance of the time when the same shall
become due, except for security or similar deposits;
(d) Assignor shall not make any other assignment of
its entire or any part of its interest in or to any or all
Leases, or any or all rents, issues, income or profits
assigned hereunder;
(e) Assignor shall not make any modification (except
immaterial modifications) to the terms and provisions of any
Lease, nor shall Assignor give any consent (including, but
not limited to, any consent to any assignment of, or
subletting under, any Lease) or approval, not required or
permitted by such terms and provisions or cancel or
terminate any Lease;
(f) Assignor shall not accept a surrender of any
Lease or convey or transfer, or suffer or permit a
conveyance or transfer, of the premises demised under any
Lease or of any interest in any Lease so as to effect,
directly or indirectly, proximately or remotely, a merger of
the estates and rights of, or a termination or diminution of
the obligations of, any tenant thereunder;
(g) Assignor shall not alter, modify or change the
terms of any guaranty of any Lease, or cancel or terminate
any such guaranty or do or suffer to be done anything which
would terminate any such guaranty as a matter of law;
(h) Assignor shall not waive or excuse the obligation
to pay rent under any Lease;
(i) Assignor shall, at its sole cost and expense,
appear in and defend any and all actions and proceedings
arising under, relating to or in any manner connected with
any Lease or the obligations, duties or liabilities of the
lessor or any tenant or guarantor thereunder, and shall pay
all costs and expenses of Assignee, including court costs
and reasonably attorneys' fees, in any such action or
proceeding in which Assignee may appear where Assignee has
determined in its sole discretion that its failure to so
appear could have a material adverse effect on Assignee's
security for the Loan;
(j) Assignor shall give prompt notice to Assignee of
any notice of any default on the part of the lessor with
respect to any Lease received from any tenant or guarantor
thereunder whereby the claim exceeds or could exceed
$25,000.00;
(k) Assignor shall make reasonable efforts to enforce
the observance and performance of each covenant, term,
condition and agreement contained in each Lease to be
observed and performed by the tenants and guarantors
thereunder;
(l) Assignor shall not permit any of the Leases to
become subordinate to any lien or liens other than liens
securing the indebtedness secured hereby or liens for
general real estate taxes not delinquent; and
(m) Not later than the 15th day after the end of each
calendar year, Assignor shall deliver to Assignee a
certified rent roll for the Premises as of the last day of
such period in a form reasonably satisfactory to Assignee.
Any consent or approval required by Assignee shall not be
unreasonably withheld, delayed or conditioned. With respect to
any event as set forth in (c), Assignor shall particularly
describe the same in any reports required to be delivered to
Assignee pursuant to the Note, the Mortgage or any of the other
Loan Documents and in such event any amounts so collected more
than thirty (30) days in advance shall be held by Assignor in
its operating account until the time when such payments would
otherwise become due, and for all financial ratios and covenants
the Assignor is required to comply with, or is subject to, as
provided in the Note or Mortgage or any of the other Loan
Documents, such payment will be considered made at the time it
was otherwise due.
5. Rights Prior to Default. So long as an Event of
Default (as defined in Paragraph 6) has not occurred, Assignee
shall not demand from tenants under the Leases or any other
person liable thereunder any of the rents, issues, income and
profits assigned hereunder, and Assignor shall have the right to
collect, at the time (but in no event more than thirty [30] days
in advance) provided for the payment thereof, all rents, issues,
income and profits assigned hereunder, and to retain, use and
enjoy the same. Assignee shall have the right to notify the
tenants under the Leases of the existence of this Assignment at
any time.
6. Events of Default. An "Event of Default" shall occur
under this Assignment upon the occurrence of a breach by
Assignor of any of the covenants, agreements, representations,
warranties or other provisions hereof which is not cured or
waived within the applicable grace or cure period, if any, set
forth herein or upon any Event of Default in any of the Loan
Documents.
7. Rights and Remedies Upon Default. At any time upon or
following the occurrence of any Event of Default, Assignee, at
its option, may exercise any one or more of the following rights
and remedies without any obligation to do so, without in any way
waiving such Event of Default, without further notice or demand
to Assignor, without regard to the adequacy of the security for
the obligations secured hereby, without releasing Assignor or
any Guarantor of the Note from any obligation, and with or
without bringing any action or proceeding to foreclose the
Mortgage or any other lien or security interest granted by the
Loan Documents:
(a) Exercise any right under the Note or the Loan
Documents;
(b) Enter upon and take possession of the Premises,
either in person or by agent or by a receiver appointed by a
court, and have, hold, manage, lease and operate the same on
such terms and for such period of time as Assignee may deem
necessary or proper, with full power to make from time to
time all reasonable alterations, renovations, repairs or
replacements thereto or thereof as may seem proper to
Assignee, to make, enforce, modify and accept the surrender
of Leases, to obtain and evict tenants, to fix or modify
rents, and to do any other act which Assignee deems
necessary or proper;
(c) Either with or without taking possession of the
Premises, demand, xxx for, settle, compromise, collect, and
give acquittances for all rents, issues, income and profits
of and from the Premises and pursue all remedies for
enforcement of the Leases and all the lessor's rights
therein and thereunder. This Assignment shall constitute
an authorization and direction to the tenants under the
Leases to pay all rents and other amounts payable under the
Leases to Assignee, without proof of default hereunder,
upon receipt from Assignee of written notice to thereafter
pay all such rents and other amounts to Assignee and to
comply with any notice or demand by assignee for observance
or performance of any of the covenants, terms, conditions
and agreements contained in the Leases to be observed or
performed by the tenants thereunder, and Assignor shall
facilitate in all reasonable ways Assignee's collection of
such rents, issues, income and profits, and upon request
will execute written notices to the tenants under the Leases
to thereafter pay all such rents and other amounts to
Assignee; and
(d) Make any payment or do any act required herein of
Assignor in such manner and to such extent as Assignee may
deem necessary, and any amount so paid by Assignee shall
become immediately due and payable by Assignor with
interest thereon until paid at the Default Rate and shall be
secured by this Assignment.
8. Application of Proceeds. All sums collected and
received by Assignee out of the rents, issues, income and
profits of the Premises following the occurrence of any one or
more Events of Default shall be applied in accordance with the
Mortgage, and if not in conflict with the provisions thereof as
follows:
(a) First, to reimburse Assignee for all of the
following expenses, together with court costs and reasonable
attorneys' fees and including interest thereon at the
Default Rate: (i) taking and retaining possession of the
Premises; (ii) managing the Premises and collecting the
rents, issues, income and profits thereof, including without
limitation, salaries, fees and wages of a managing agent and
such other employees as Assignee may deem necessary and
proper; (iii) operating and maintaining the Premises,
including without limitation, payment of taxes, charges,
claims, assessments, water rents, sewer rents, other liens,
and premiums for any insurance required under the Mortgage
or any of the other Loan Documents; and (iv) the cost of all
reasonable alterations, renovations, repairs or replacements
of or to the Premises which Assignee may deem necessary and
proper.
(b) Second, to reimburse Assignee for all sums
expended by Assignee pursuant to Paragraph 7(d) above,
together with interest thereon at the Default Rate;
(c) Third, to reimburse Assignee for all other sums
with respect to which Assignee is indemnified pursuant to
Paragraph 9 below, together with interest thereon at the
Default Rate;
(d) Fourth, to reimburse Assignee for all other sums
reasonably expended or advanced by Assignee pursuant to the
terms and provisions of or constituting additional
indebtedness under any of the other Loan Documents, together
with interest thereon at the Default Rate;
(e) Fifth, the payment of all accrued and unpaid
interest under the Note;
(f) Sixth, to payment of the unpaid principal amounts
advanced under the Note and any and all other amounts due
thereunder or under the other Loan Documents; and
(g) Seventh, any balance remaining to Assignor, its
respective legal representatives, successors and assigns or
to such other parties which may be legally entitled thereto.
9. Limitation of Assignee's Liability. Assignee shall
not be liable for any loss sustained by Assignor resulting from
Assignee's failure to let the Premises or from any other act or
omission of Assignee in managing, operating or maintaining the
Premises following the occurrence of an Event of Default, except
for its gross negligence or willful misconduct. Assignee shall
not be obligated to observe, perform or discharge, nor does
Assignee hereby undertake to observe, perform or discharge any
covenant, term, condition or agreement contained in any Lease to
be observed or performed by the lessor thereunder, or any
obligation, duty or liability of Assignor under or by reason of
this Assignment, except with respect to any Lease, the terms and
provisions of which do not violate any of the covenants hereof,
and under the Mortgage or the Loan Documents, and provided
Assignee will not be required to expend any sum unless it agrees
to do so in its sole discretion. Assignor shall and does hereby
agree to indemnify, defend (using counsel satisfactory to
Assignee) and hold Assignee harmless from and against any and
all liability, loss or damage which Assignee may incur under any
Lease or under or by reason of this Assignment and of and from
any and all claims and demands whatsoever which may be asserted
against Assignee by reason of any alleged obligation or
undertaking on its part to observe or perform any of the
covenants, terms, conditions and agreements contained in any
Lease, except for its gross negligence or willful misconduct.
Should Assignee incur any such liability, loss or damage under
any Lease or under or by reason of this Assignment, or in the
defense of any such claim or demand, the amount thereof,
including costs, expenses and reasonable attorneys' fees, shall
become due and payable by Assignor with interest thereon at the
Default Rate if not paid within thirty (30) days of demand by
Assignee and shall be secured by this Assignment. This
Assignment shall not operate to place responsibility upon
Assignee for the care, control, management or repair of the
Premises or for the carrying out of any of the covenants, terms,
conditions and agreements contained in any Lease, nor shall it
operate to make Assignee responsible or liable for any waste
committed upon the Premises, or for any negligence in the
management, upkeep, repair or control of the Premises resulting
in loss or injury or death to any tenant, occupant, licensee,
employee or stranger, except for Assignee's gross negligence or
willful misconduct. Nothing set forth herein or in the
Mortgage, and no exercise by Assignee of any of the rights set
forth herein or in the Mortgage shall constitute or be construed
as constituting Assignee a "mortgagee in possession" of the
Premises, in the absence of the taking of actual possession of
the Premises by Assignee pursuant to the provisions hereof or of
the Mortgage.
10. No Waiver. Nothing contained in this Assignment and
no act done or omitted to be done by Assignee pursuant to the
rights and powers granted to it hereunder shall be deemed to be a
waiver by Assignee of its rights and remedies under any of the
Loan Documents. This Assignment is made and accepted without
prejudice to any of the rights and remedies of Assignee under
the terms and provisions of such instruments, and Assignee may
exercise any of its rights and remedies under the terms and
provisions of such instruments either prior to, simultaneously
with, or subsequent to any action taken by it hereunder.
Assignee may take or release any other security for the
performance of the obligations secured hereby, may release any
party primarily or secondarily liable therefor, and may apply any
other security held by it for the satisfaction of the obligations
secured hereby without prejudice to any of its rights and powers
hereunder.
11. Further Assurances. Assignor shall execute or cause
to be executed such additional instruments (including, but not
limited to, general or specific assignments of such Leases as
Assignee may designate) and shall do or cause to be done such
further acts, as Assignee may request, in order to permit
Assignee to perfect, protect, preserve and maintain the
assignment made to Assignee by this Assignment.
12. Security Deposits. Assignor hereby acknowledges that
Assignee has not received any security deposited by any tenant
pursuant to the terms of the Leases and that Assignee assumes no
responsibility or liability for any security so deposited.
13. Severability. In the event that any provision of this
Assignment is deemed to be invalid by reason of the operation of
law, or by reason of the interpretation placed thereon by any
administrative agency or any court, Assignee and Assignor shall
negotiate an equitable adjustment in the provisions of the same
in order to effect, to the maximum extent permitted by law, the
purpose of this Assignment and the validity and enforceability
of the remaining provisions, or portions or applications thereof,
shall not be affected thereby and shall remain in full force and
effect.
14. Joint Liability; Benefit. This Assignment is binding
upon Assignor and its respective legal representatives,
successors and assigns, and the rights, powers and remedies of
Assignee under this Assignment shall inure to the benefit of
Assignee and its successors and assigns.
15. Written Modifications. This Assignment shall not be
amended, modified or supplemented without the written agreement
of Assignor and Assignee at the time of such amendment,
modification or supplement.
16. Duration. This Assignment shall become null and void
at such time as Assignor shall have no further liability under
the Note, and shall have fully paid and performed all of the
other obligations secured hereby and by the other Loan Documents.
17. Governing Law. This Assignment shall be governed by
and construed in accordance with the laws of the State of
Indiana.
18. Notices. All notices, demands, requests and other
correspondence which are required or permitted to be given
hereunder shall be deemed sufficiently given when delivered or
mailed in the manner and to the addresses of Assignor and
Assignee, as the case may be, as specified in the Mortgage.
19. WAIVER OF TRIAL BY JURY. ASSIGNOR AND ASSIGNEE
ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS ASSIGNMENT, THE NOTE OR ANY OF THE OTHER LOAN DOCUMENTS OR
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN
WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES. ACCORDINGLY,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH ASSIGNOR
AND ASSIGNEE, BY ITS ACCEPTANCE OF THIS ASSIGNMENT, HEREBY
KNOWINGLY AND VOLUNTARILY MUTUALLY (A) WAIVE THE RIGHT TO TRIAL
BY JURY IN ANY CIVIL ACTION, CLAIM, COUNTERCLAIM, CROSS-CLAIM,
THIRD-PARTY CLAIM, DISPUTE, DEMAND, SUIT OR PROCEEDING ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS ASSIGNMENT, THE NOTE,
THE MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS, THE LOAN, OR
ANY RENEWAL, EXTENSION OR MODIFICATION THEREOF, OR ANY CONDUCT
OF ANY PARTY RELATING THERETO, AND (B) AGREE THAT ANY SUCH
ACTION, CLAIM, SUIT OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE
AND NOT BEFORE A JURY.
20. JURISDICTION AND VENUE. ASSIGNOR HEREBY AGREES THAT
ALL ACTIONS OR PROCEEDINGS INITIATED BY ASSIGNOR AND ARISING
DIRECTLY OR INDIRECTLY OUT OF THIS ASSIGNMENT, SHALL BE
LITIGATED IN THE COURTS OF XXXXXX OR XXXXXXXX COUNTY, INDIANA,
OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
INDIANA. ASSIGNOR HEREBY EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED BY ASSIGNEE IN ANY OF SUCH COURTS, AND HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS
OR PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH
SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO ASSIGNOR AT THE
ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT TO THIS
ASSIGNMENT. ASSIGNOR WAIVES ANY CLAIM THAT XXXXXX OR XXXXXXXX
COUNTY, INDIANA OR THE SOUTHERN DISTRICT OF INDIANA IS AN
INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE.
SHOULD ASSIGNOR, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER
TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN
THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF,
ASSIGNOR SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT
MAY BE ENTERED BY ASSIGNEE AGAINST ASSIGNOR AS DEMANDED OR
PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS.
IN WITNESS WHEREOF, Assignor has executed and delivered
this Assignment as of the day and year first above written.
STANDARD MANAGEMENT CORPORATION
By:
____________________________________
Xxxxxx X. Xxxxxxxxxx, Senior Vice
President and Treasurer
STATE OF INDIANA )
) SS:
COUNTY OF XXXXXX )
Before me, a Notary Public in and for said County and State,
personally appeared Xxxxxx X. Xxxxxxxxxx, the Senior Vice
President and Treasurer of STANDARD MANAGEMENT CORPORATION, an
Indiana corporation, who, after having been duly sworn, acknowl-
edged the execution of the foregoing Assignment of Rents and
Leases for and on behalf of such corporation.
Witness my hand and Notarial Seal this 28th day of December,
2001.
_________________________________________
Xxxxxxx X. Xxxxxx, Notary Public
My Commission Expires: September 20, 2008
My County of Residence: Xxxxxxxx
This instrument prepared by: Xxxxxxx X. Xxxxxx, Xxxx Xxxxx
Xxxxxx & Xxxxxxx, 0000 Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX
00000.
EXHIBIT A
Real Estate
