EXHIBIT 10.36
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT is made on January 1, 2005 by and between Meadowbrook
Insurance Group, Inc., a Michigan corporation ("Borrower"), whose address is
00000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and Star Insurance Company, a
Michigan corporation ("Lender"), whose address is 00000 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000.
RECITALS:
A. Borrower has granted to Lender a mortgage (the "Mortgage") covering
certain real property situated in the State of Michigan, as more particularly
described in Exhibit A attached hereto (the "Property"), as security for certain
indebtedness or obligations of Borrower to Lender; and
B. Borrower has demised or hereafter will demise the Property or a
part thereof by a certain lease or leases for certain terms; and
C. Lender, as a condition for making the loan(s) 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.
THEREFORE, 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 Borrower thereunder, and any and all extensions and
renewals thereof, however evidenced, and the performance of the covenants and
conditions hereof, Borrower hereby covenants and agrees to and with Lender as
follows:
1. Borrower does hereby sell, assign, transfer and set over unto
Lender, pursuant to Act 210 of the Public Acts of Michigan of 1953, as amended,
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
Borrower and those claiming by, under or through Borrower, 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 Lender to perform any of the
covenants or undertakings required to be performed by Borrower in any leases.
2. Borrower 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 Lender, shall be null and void.
3. Borrower warrants and represents that all leases or copies of leases
which have been delivered to Lender are in full force and effect and there are
no defaults existing thereunder, and that Borrower 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 Lender'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 Lender, or (d)
subordinated any lease to the lien of the Mortgage, except on terms acceptable
to Lender.
4. Until the occurrence of an Event of Default under the Mortgage or
until the Borrower shall default in the performance of any its obligations under
this assignment, Borrower 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 Borrower in the performance of any its obligations under
this assignment, Lender 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 Borrower 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 Lender 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, Lender, in its sole discretion, may change the
priorities set forth above for the application of the net proceeds of such rent
and income. The Borrower hereby authorizes Lender 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 Borrower might reasonably so act. Lender 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 Lender, 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 Borrower appearing on the records of Lender, as Lender 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 LENDER EXERCISING ITS RIGHTS UNDER
THE ASSIGNMENT CONTAINED IN THIS PARAGRAPH.
5. Lender 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 Lender's discretion to exercise its rights
hereunder, and Lender and its agents shall have absolutely no liability to
Borrower arising therefrom, except for gross negligence or willful misconduct.
Lender shall not, however, be obligated to give any tenant or occupier of the
Property any notice by personal delivery and Lender 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. The Borrower irrevocably consents that any lessee or lessees under
any leases covering the Property, upon demand and notice from Lender of
Borrower's default under the Mortgage or this assignment, shall pay all rents,
issues and profits under such leases to Lender without any obligation upon any
such lessee or lessees for the determination of the actual existence of any
default.
7. In the event that Borrower obstructs Lender in its efforts to
collect the rents and income from the Property, or after requested by Lender,
unreasonably refuses, fails or neglects to assist Lender in collecting such rent
and income, Lender 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.
8. The Borrower 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 Borrower fail so
to do, then Lender, but without obligation to do so, and without releasing the
Borrower from any obligation hereof, may make or do the same in such manner and
to such extent as Lender may deem necessary to protect the security hereof.
Nothing herein contained shall be construed to bind Lender to perform any of the
terms and provisions contained in the leases, or otherwise to impose any
obligation upon Lender. Any default by the Borrower in the performance of any of
the obligations contained in this paragraph, which is not cured within 30 days
after notice thereof from Lender to Borrower, or, if the default is of a kind
which cannot be cured within 30 days, if Borrower fails to undertake the cure of
such default within 30 days after notice thereof from Lender to Borrower 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 Lender to exercise the rights and remedies
provided by the Mortgage and this assignment.
9. Lender 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 either Borrower or to
Lender. Further, Lender shall at no time have any obligation whatever to enforce
any other obligations owed by tenants or occupiers of the Property to Borrower.
No action taken by Lender under the Mortgage or this assignment shall put Lender
in the position of a "mortgagee in possession."
10. Borrower 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 Lender shall not be bound in
any respect by any rent prepayment made or received in violation of the terms
hereof.
11. Lender shall have the right to assign the Borrower's right, title
and interest in all leases covering the Property to any subsequent holder of the
Mortgage or this assignment, and to assign the same to any person acquiring
title to the Property through foreclosure or otherwise.
12. The rights and remedies of Lender under this instrument are
cumulative and are not in lieu of but are in addition to any other rights or
remedies which Lender shall have under the Mortgage, this assignment or under
any loan agreement between the parties hereto or under applicable law.
13. All covenants and agreements contained herein shall apply to and
bind the heirs, personal representatives, successors and assigns of the
respective parties.
IN WITNESS WHEREOF, this Assignment was executed and delivered by the
undersigned on the day and year first above written.
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BORROWER:
MEADOWBROOK INSURANCE GROUP,
INC., a Michigan corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Its: President and CEO
STATE OF MICHIGAN)
)ss
COUNTY OF )
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The foregoing instrument was acknowledged before me on January 1, 2005
by Xxxxxx X. Xxxxxx, who is the President and CEO of Meadowbrook Insurance
Group, Inc., a Michigan corporation, on behalf of the corporation.
-----------------------------------------
Notary Public, County, MI
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My commission expires:
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DRAFTED BY:
Xxxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxxx, P.C.
00000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
WHEN RECORDED RETURN TO:
Meadowbrook Insurance Group, Inc.
00000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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"EXHIBIT A"
Land in the City of Southfield, County of Oakland and State of Michigan,
described as:
Tax Parcel No.:
Commonly known as:
Blmfield.15231.43786.581080-1
