ASSIGNMENT OF LEASES AND RENTS
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AND OTHER INCOME
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THIS ASSIGNMENT OF LEASES AND RENTS AND OTHER INCOME (this "ASSIGNMENT")
is made this 30th day of December, 2004, by BEHRINGER HARVARD CYPRUS, LLC, a
Colorado limited liability company ("GRANTOR"), and BANK OF AMERICA, N.A., a
national banking association ("ADMINISTRATIVE AGENT"), for itself and on behalf
of the Lenders (collectively "LENDERS") now or hereafter made a party to the
Credit Agreement (defined below).
1. PROPERTY. Grantor is the owner of that certain real property
described in EXHIBIT A attached hereto and incorporated herein by this reference
(such real property, together with all improvements now or hereafter situated
thereon, and all appurtenances thereto, being hereinafter referred to as the
"PROPERTY").
2. THE LOAN INSTRUMENTS. Grantor has executed that certain that
certain Guaranty Agreement dated even date herewith in favor of Administrative
Agent and the other Lenders (the "GUARANTY") which guarantees all principal,
interest and other amounts due, and the prompt payment and performance of all
other duties and obligations of Borrower, under the Credit Agreement and other
Loan Documents (as defined in the Credit Agreement) (all hereinafter sometimes
collectively referred to as the "GUARANTEED OBLIGATIONS"). As used herein, the
term "CREDIT AGREEMENT" means that certain Credit Agreement dated as of December
30, 2004, executed by Behringer Harvard REIT I, Inc., Behringer Harvard
Operating Partnership I, LP, Grantor, Administrative Agent and certain other the
Lenders and Loan Parties now or hereafter made a party thereto. The Guaranty
also is secured by a Deed of Trust, Assignment of Rents and Leases, Security
Agreement, Credit Agreement, Fixture Filing and Financing Statement (the "DEED
OF TRUST"), of even date herewith (this Assignment, the Credit Agreement, the
Guaranty, the Deed of Trust, and all instruments and all other documents
executed in connection with the loan evidenced by the Credit Agreement, being
hereinafter referred to collectively as the "LOAN INSTRUMENTS"). The terms
"Credit Agreement", "Deed of Trust", "Guaranty", and "Loan Instruments" shall be
deemed to include any and all modifications, amendments, extensions, renewals
and substitutions, supplements or restatements, in whole or in part, thereof.
3. ASSIGNMENT. As an inducement to Lenders to make the loan
evidenced by or referred to in the Loan Instruments, Grantor hereby assigns,
sells, conveys, and sets over unto Administrative Agent, on behalf of the
Lenders, all of Grantor's right, title, and interest in and to:
3.1. All those leases now or hereafter affecting all or any
part of the Property, together with any and all extensions or renewals of any of
said leases; and
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3.2. Any and all guarantees of the lessee's obligations under
said leases; and
3.3. Any and all deposits (whether for security or
otherwise), rents, issues, profits, revenues, royalties, contract rights, and
benefits of every nature of and from the Property
(all such leases, guarantees, contract rights, benefits, and other property and
property interests being hereinafter referred to collectively as the "LEASES").
4. WARRANTIES AS TO LEASES. Grantor represents, warrants, and
covenants that it now is (or with respect to Leases not yet in existence, will
be immediately upon the execution thereof) the absolute owner of any Leases,
with full right and title to assign the same and the rents, income, and profits
due or to become due thereunder; that any existing Leases are valid, in full
force and effect, and have not been modified or amended, except as stated
herein; that there is no outstanding assignment or pledge thereof or of the
deposits (for security or otherwise), rents, income, and profits due or to
become due thereunder; that there are no existing defaults under the terms
thereof on the part of Grantor or, to the best knowledge of Grantor, any other
party thereto; and that no rents, income, or profits payable thereunder have
been or will be hereafter anticipated, discounted, released, waived,
compromised, or otherwise discharged without Administrative Agent's prior
written consent. Grantor also represents, warrants, and covenants that all
tenants under the Leases are paying rent on fully executed Leases; that the
existing Leases contain no cancellation clauses in favor of the lessees or
prepayment of rent clauses allowing prepayment of more than one (1) month's rent
in advance. All future Leases shall be executed on the lease form approved by
Administrative Agent in accordance with the Credit Agreement. Each future Lease
shall be at arm's length and shall contain no prepayment of rent clause allowing
prepayment of more than one (1) month's rent in advance.
5. COVENANT TO DEFEND ACTIONS. Grantor shall, at Grantor's sole
cost and expense, appear in and defend any action or proceeding arising under,
growing out of, or in any manner connected with any Leases or the obligations,
duties, or liabilities of the lessor or lessee thereunder, and shall pay all
reasonable costs and expenses, including reasonable attorneys' fees, which
Administrative Agent may incur in connection with Administrative Agent's
appearance, voluntary or otherwise, in any such action or proceeding.
6. ADMINISTRATIVE AGENT RIGHTS AS TO LEASES AND RENTS. This is a
current, direct and absolute assignment, and Administrative Agent, on behalf of
the Lenders, shall have the right, at its option after and during the
continuation of a Default, to enter and take possession of the premises affected
by any Lease and to perform all acts necessary for the operation and maintenance
of such premises in the same manner and to the same extent that Grantor might
reasonably so act. In furtherance of the foregoing, and not by way of
limitation, Administrative Agent is empowered, but shall have no obligation, to
collect the rents, income, and profits accruing under any Lease, to enforce
payment thereof and the performance of any and all terms and provisions thereof,
to exercise all the rights and privileges of Grantor thereunder, including the
right to fix or modify rents, to demand and xxx for possession of the premises
covered by any Lease, and to relet such premises and collect the rents, income,
and profits accruing by reason of such reletting. Administrative Agent shall
from time to time apply the net income derived under any Leases, after payment
of all proper costs and charges (including any loss or damage of the
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nature referred to in SECTION 9 hereof, and including reasonable attorneys' fees
and other costs of collection) to any sums then due Lenders under the Loan
Instruments, in such order as Administrative Agent may elect, but Administrative
Agent shall in no event be accountable for any moneys not actually received by
Administrative Agent pursuant hereto.
7. LICENSE TO GRANTOR UNTIL DEFAULT. Unless there shall have been
and shall be continuing a default by Grantor in the payment or performance of
any obligation contained in, secured by, or referred to in the Loan Instruments
(a "DEFAULT"), Grantor shall have a license (which license shall terminate
automatically and without further notice upon the occurrence and during the
continuation of a Default) to collect, but not prior to accrual, the rents,
issues and profits under the Leases and, where applicable, subleases, such
rents, issues and profits to be held in trust for Administrative Agent, on
behalf of the other Lenders, and to otherwise deal with all Leases as permitted
by this Assignment. Each month, provided no Default has occurred and is
continuing, Grantor may retain such rents, issues and profits as were collected
that month and held in trust for Administrative Agent; PROVIDED, HOWEVER, that
all rents, issues and profits collected by Grantor shall be applied first to the
payment of principal and interest and all other sums due and payable hereunder
and under the Loan Instruments and thereafter to the ordinary and necessary
expenses of owning and operating the Property. Upon the revocation of such
license, all rents, issues and profits shall be paid directly to Administrative
Agent, on behalf of the other Lenders, and not through Grantor, all without the
necessity of any further action by Administrative Agent, including, without
limitation, any action to obtain possession of all or any portion of the
Property or any action for the appointment of a receiver. Grantor hereby
authorizes and directs the tenants under the Leases to pay rents, issues and
profits to Administrative Agent upon written demand by Administrative Agent,
without further consent of Grantor, without any obligation of such tenants to
determine whether a Default has in fact occurred and regardless of whether
Administrative Agent has taken possession of any portion of the Property, and
the tenants may rely upon any written statement delivered by Administrative
Agent to the tenants. Any such payments to Administrative Agent shall constitute
payments to Grantor under the Leases, and Grantor hereby irrevocably appoints
Administrative Agent as its attorney-in-fact to do all things, after and during
the continuation of a Default, which Grantor might otherwise do with respect to
the Property and the Leases thereon, including, without limitation, (i)
collecting rents, issues and profits with or without suit and applying the same,
less expenses of collection, to any of the obligations or sums due to Lenders
hereunder or under the Loan Instruments or to expenses of operating and
maintaining the Property (including reasonable reserves for anticipated
expenses), at the option of the Administrative Agent, all in such manner as may
be determined by Administrative Agent, (ii) leasing, in the name of Grantor, the
whole or any part of the Property which may become vacant, and (iii) employing
agents therefor and paying such agents reasonable compensation for their
services. The curing of such Default, unless other Defaults also then exist,
shall entitle Grantor to recover its aforesaid license to do any such things
which Grantor might otherwise do with respect to the Property and the Leases
thereon and to again collect such rents, issues and profits. The powers and
rights granted in this paragraph shall be in addition to the other remedies
herein provided for upon the occurrence of a Default and may be exercised
independently of or concurrently with any of said remedies. Nothing in the
foregoing shall be construed to impose any obligation upon Administrative Agent,
or any Lender, to exercise any power or right granted in this paragraph or to
assume any liability
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under any Lease of any part of the Property and no liability shall attach to
Administrative Agent and the other Lenders for failure or inability to collect
any rents, issues and profits under any such Lease.
8. AUTHORIZATION TO TENANTS. Grantor hereby irrevocably agrees and
directs that the lessee under any Lease shall, upon demand and notice from
Administrative Agent that Administrative Agent has revoked the license contained
in SECTION 7 hereof, pay all rents, income, and profits under such Lease to
Administrative Agent, on behalf of the Lenders, without liability on the part of
such lessee for determining the validity or propriety of Administrative Agent's
revocation of such license, and notwithstanding any claim by Grantor that
Administrative Agent's revocation of such license is invalid or improper.
Grantor shall have no claim against any such lessee for any rents or other sums
paid by such lessee to Administrative Agent.
9. NO RESPONSIBILITY UNTIL ENTRY. Prior to Administrative Agent's
actual entry and taking possession of the premises immediately affected by any
Lease, this Assignment shall not operate to place responsibility upon
Administrative Agent and the other Lenders for the condition, safety, control,
care, management, or repair of such premises. Nothing contained herein shall be
construed to bind Administrative Agent at any time to the performance of any of
the terms or provisions contained in any Lease, or otherwise to impose any
obligation on Administrative Agent and the other Lenders, including, without
limitation, any liability under any covenant of quiet enjoyment contained in any
Lease in the event that any Lease shall be terminated or any lessee dispossessed
upon foreclosure of any of the Loan Instruments. Grantor agrees to indemnify and
hold Lenders harmless of and from any and all claims, liabilities, losses,
expenses, or damages which Administrative Agent and the other Lenders may incur
under any Lease, or by reason of this Assignment, except on account of willful
misconduct or gross negligence.
10. GRANTOR TO PERFORM AND ENFORCE LEASES. Grantor shall perform,
both before and after any revocation by Administrative Agent of the license
contained in SECTION 7 hereof, all of Grantor's covenants, agreements, and
obligations as lessor under any Leases, and shall not suffer or permit to occur
any release of liability of any lessee or the accrual of any right in any lessee
to withhold any rent or other sum payable under the terms of any Lease. Grantor
shall give prompt notice to Administrative Agent of any notice of default
received from any lessee or from any other person relative to the Property, and
shall furnish Administrative Agent with a copy of any such notice. If requested
by Administrative Agent, Grantor shall enforce each Lease and all remedies
available to Grantor against the lessee thereunder in the event of any default
by such lessee.
11. NO IMPAIRMENT OF ADMINISTRATIVE AGENT'S INTERESTS. Grantor shall
not make any other or further assignments of any Lease or of any interest
therein, or of any of the rents payable thereunder. Grantor shall not modify or
amend the terms of any guaranty of any Lease or cancel or terminate any such
guaranty, nor consent to the assignment of any Lease, or any subletting
thereunder, without the prior written consent of Administrative Agent, which
consent shall not be unreasonably withheld.
12. ADMINISTRATIVE AGENT'S RIGHTS TO PERFORM. In the event Grantor
shall fail to make any payment or to perform any act required of Grantor under
the terms hereof, then (without waiving any rights of Administrative Agent under
the provisions of SECTION 13 hereof)
ASSIGNMENT OF LEASES AND RENTS AND OTHER INCOME - Page 4
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Administrative Agent may, but shall not be obligated to, without notice to or
demand on Grantor, and without releasing Grantor from any obligation hereof,
make or perform the same in such manner and to such extent as Administrative
Agent may deem necessary to protect the security hereof, including specifically,
without limitation, appearing in and defending any action or proceeding
purporting to affect the security hereof or the rights or powers of Grantor or
Administrative Agent, performing or discharging any obligation, covenant, or
agreement of Grantor under any Lease, and, in exercising any of such powers,
paying all necessary costs and expenses, employing counsel, and incurring and
paying reasonable attorneys' fees. Any sum advanced or paid by Administrative
Agent for any such purpose shall be immediately due and payable to
Administrative Agent, on behalf of the Lenders, by Grantor, and shall bear
interest at the Past Due Rate (as that term is defined in the Credit Agreement)
from the date paid or advanced by Administrative Agent until repaid by Grantor.
13. CROSS DEFAULT PROVISION. Any default by Grantor in the
performance or observance of any covenant or condition hereof shall be deemed a
Default or Event of Default under each of the Loan Instruments, entitling
Administrative Agent, on behalf of the Lenders, to exercise all or any remedies
available to Administrative Agent and the other Lenders under the terms of any
or all Loan Instruments, and any Default or Event of Default under any other
Loan Instrument (subject to any applicable grace periods) shall be deemed a
Default hereunder, entitling Administrative Agent, on behalf of the Lenders, to
exercise any or all remedies provided for herein.
14. NO WAIVER. Failure by Administrative Agent to exercise any right
which it may have hereunder shall not be deemed a waiver thereof unless so
agreed in writing by Administrative Agent, on behalf of the Lenders, and the
waiver by Administrative Agent of any default by Grantor hereunder shall not
constitute a continuing waiver or a waiver of any other default or of the same
default on any future occasion.
15. RIGHTS OF SUCCESSORS TO ADMINISTRATIVE AGENT. Administrative
Agent shall have the right to assign all of Grantor's right, title, and interest
in any or all Leases (to the extent of the interests therein conferred upon
Administrative Agent by the terms hereof) to any subsequent holder or owner of
the Loan Instruments, or to any person who shall acquire title to the Property
through foreclosure or otherwise. From and after the acquisition of title to the
Property by any person, through foreclosure or conveyance in lieu of
foreclosure, no assignee of Grantor's interest in any Lease shall be liable to
account to Grantor for the rents, income, and profits thereafter accruing.
16. EFFECT OF RELEASE OF DEED OF TRUST. The recording of any valid
release of the Deed of Trust shall operate as a release of this Assignment in
favor of the then owner of the Property, provided that the recording of any
valid partial release of said Deed of Trust shall operate as a release hereof
only with respect to that portion of the Property thereby released from said
Deed of Trust, the term "Property" as used herein being deemed thereafter to
refer only to that portion of the Property remaining encumbered by said Deed of
Trust, and the term "Grantor"
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as used herein being deemed thereafter to refer only to the owner or owners of
such remaining portion of the Property. Notwithstanding anything to the contrary
contained herein, if, in the event of a foreclosure of the Deed of Trust, less
than the full amount then owing under the Loan Instruments is bid at any
resulting foreclosure sale, this Assignment shall not be released but shall
remain in full force and effect after such foreclosure sale and be assigned to
the purchaser of the Property at such foreclosure sale.
17. NOTICES. All notices or other communications required or
permitted to be given pursuant to this Assignment shall be in writing and shall
be considered as properly given if sent by overnight courier delivery, or by
delivering the same in person to the intended addressee. Notice given by
overnight courier shall be effective 24 hours from its deposit with the courier
service. Notice given in any other manner shall be effective only if and when
received by the addressee. Any notices delivered hereunder shall be addressed to
the following unless otherwise notified in accordance herewith:
Administrative Agent:
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Bank of America, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Real Estate Administration
Grantor:
--------
Behringer Harvard Cyprus, LLC
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, III
18. ADMINISTRATIVE AGENT AFFIDAVITS OF DEBT DUE. The affidavit of
any officer of Administrative Agent stating that any part of the indebtedness
secured hereby remains unpaid shall constitute conclusive evidence of the
validity, effectiveness, and continuing force of this Assignment, and any person
may and is hereby authorized to rely upon such affidavit.
19. RIGHTS CUMULATIVE. The rights and remedies of Administrative
Agent under this Assignment are cumulative and are not in lieu of, but are in
addition to, any other rights or remedies which Administrative Agent shall have
under the Credit Agreement, the Deed of Trust, or any other Loan Instrument.
20. ADMINISTRATIVE AGENT NOT MORTGAGEE-IN-POSSESSION. Nothing herein
shall be construed to constitute Administrative Agent as a
"mortgagee-in-possession" in the absence of its taking actual possession of the
Property pursuant to the powers granted herein or in any other Loan Instrument
or to impose any liability or obligation on Administrative Agent under or with
respect to the Leases. Any rental income or any other monies collected by
Administrative Agent in connection with the Property shall be applied by
Administrative Agent to any sums then due
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Lenders under the Loan Instruments, including any liabilities, losses, damages,
claims, demands, costs, expenses, or fees incurred by Administrative Agent in
connection with or arising from the Loan Instruments or the Property, in such
order as Administrative Agent may elect.
21. BINDING EFFECT. The provisions of this Assignment shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
22. SEVERABILITY. If any provision under this Assignment shall be
invalid, illegal, or unenforceable, it shall not affect or impair the validity,
legality, and enforceability of any other provision of this Assignment.
23. AMENDMENT. This Assignment may not be amended, modified, or
changed, nor shall any waiver of any provision hereof be effective, except only
by an instrument in writing signed by the party against whom enforcement of any
waiver, amendment, change, modification, or discharge is sought.
24. CAPTIONS. The captions and headings in this Assignment are for
convenience only and shall not be considered in interpreting the provisions of
this Assignment.
25. GOVERNING LAW. This Assignment shall be governed by and
construed in accordance with the laws of the United States and of the State of
Colorado.
26. NO CONSTRUCTION AGAINST PREPARER. This Assignment has been
prepared by Administrative Agent and its professional advisors and reviewed by
Grantor and its professional advisors. Administrative Agent, Grantor, and their
separate advisors believe that this Assignment is the product of all of their
efforts, that it expresses their agreement, and that it should not be
interpreted in favor of either Administrative Agent or Grantor or against either
Administrative Agent or Grantor merely because of their efforts in preparing it.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Grantor has executed this Assignment on the date
first above written.
GRANTOR:
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BEHRINGER HARVARD CYPRUS, LLC, a
Colorado limited liability company
By: Behringer Harvard Operating Partnership
I LP, a Texas limited partnership, its
sole member
By: Behringer Harvard REIT I Inc., a
Maryland corporation, its sole
general partner
By:
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Name: Xxxxxx X. Xxxxxxx, III
Title: Executive Vice President
STATE OF TEXAS ss.
ss. ss. Dallas
COUNTY OF DALLAS ss.
The foregoing instrument was acknowledged before me this ______ day of
December, 2004, Xxxxxx X. Xxxxxxx, Executive Vice President of Behringer Harvard
REIT I, Inc., a Maryland corporation, sole general partner of Behringer Harvard
Operating Partnership I, LP, a Texas limited partnership, sole member of
Behringer Harvard Cyprus, LLC, a Colorado limited liability company, on behalf
such corporation, partnership and company.
Witness my hand and official seal.
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Notary Public, State of Texas
My commission expires:
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ADMINISTRATIVE AGENT:
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BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent
By:
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
STATE OF TEXAS ss.
ss. ss. Dallas
COUNTY OF DALLAS ss.
The foregoing instrument was acknowledged before me this ______ day of
December, 2004, by Xxxxxx X. Xxxxxx, Senior Vice President of Bank of America,
N.A., a national banking association, on behalf of said association.
Witness my hand and official seal.
------------------------------------------------
Notary Public, State of Texas
My commission expires:
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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Lot 12, a Resubdivision at Panorama Office Park I, the Plat of which was
recorded October 9, 1987, at Reception No. 2897686, Plat Book 96 at Pages 36 and
37, County of Arapahoe, State of Colorado.
