--------------------------------------------------------------------------------
BEHRINGER HARVARD ASHFORD PERIMETER H, LLC, as Borrower
(Borrower)
to
BEAR XXXXXXX COMMERCIAL MORTGAGE, INC., as Lender
(Lender)
ASSIGNMENT OF LEASES AND RENTS
Dated: As of January 6, 2005
Location: Ashford Perimeter, Atlanta, Georgia
County: DeKalb County
PREPARED BY AND UPON
RECORDATION RETURN TO:
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
--------------------------------------------------------------------------------
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "ASSIGNMENT") made as of the
6th day of January, 2005, by BEHRINGER HARVARD ASHFORD PERIMETER H, LLC, a
Delaware limited liability company, as assignor, having its principal place of
business c/o Behringer Harvard Funds, 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000 ("BORROWER") to BEAR XXXXXXX COMMERCIAL MORTGAGE, INC., a New York
corporation, as assignee, having an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("LENDER").
W I T N E S S E T H:
WHEREAS, this Assignment is given in connection with a loan in the
principal sum of Thirty-Five Million Four Hundred Thousand and No/100 Dollars
($35,400,000.00) (the "LOAN") made by Lender to Borrower pursuant to that
certain Loan Agreement, dated as of the date hereof (as the same may hereafter
be amended, restated, replaced, supplemented, renewed, extended or otherwise
modified from time to time, the "LOAN Agreement") and evidenced by that certain
Promissory Note, dated the date hereof, given by Borrower to Lender (as the same
may hereafter be amended, restated, replaced, supplemented, renewed, extended or
otherwise modified from time to time, the "NOTE");
WHEREAS, Borrower desires to secure the payment of the Debt (as defined
in the Loan Agreement) and the performance of all of its obligations under the
Note, the Loan Agreement and the other Loan Documents; and
WHEREAS, this Assignment is given pursuant to the Loan Agreement, and
payment, fulfillment, and performance by Borrower of its obligations thereunder
and under the other Loan Documents is secured hereby, and each and every term
and provision of the Loan Agreement and the Note, including the rights,
remedies, obligations, covenants, conditions, agreements, indemnities,
representations and warranties therein, are hereby incorporated by reference
herein as though set forth in full and shall be considered a part of this
Assignment.
NOW THEREFORE, in consideration of the making of the Loan by Lender and
the covenants, agreements, representations and warranties set forth in this
Assignment:
ARTICLE 1 - ASSIGNMENT
Section 1.1 PROPERTY ASSIGNED. Borrower hereby absolutely and
unconditionally assigns and grants to Lender the following property, rights,
interests and estates, now owned, or hereafter acquired by Borrower:
(a) LEASES. All leases, subleases or subsubleases, lettings,
licenses, concessions or other agreements made a part thereof (whether written
or oral and whether now or hereafter in effect), pursuant to which any Person is
granted a possessory interest in, or a right to use or occupy, all or any
portion of any space in that certain lot or piece of land, more particularly
described in Exhibit A annexed hereto and made a part hereof, together with the
buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter located
thereon (collectively, the "PROPERTY")
and every modification, amendment or other agreement relating to such leases,
subleases, subsubleases, or other agreements entered into in connection with
such leases, subleases, subsubleases, or other agreements and every guarantee of
the performance and observance of the covenants, conditions and agreements to be
performed and observed by the other party thereto, 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 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" 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, rent equivalents, income, receivables,
revenues, receipts, insurance proceeds, deposits and profits arising from the
Leases and renewals thereof together with all rents, rent equivalents, income,
fees, receivables, accounts, profits (including, but not limited to, all oil and
gas or other mineral royalties and bonuses), charges for services rendered and
any and all payment and consideration of whatever form or nature received by
Borrower or its agents or employees from any and all sources relating to the
use, enjoyment and occupancy of the Property 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," collectively, the "LEASE
GUARANTIES") given by any guarantor in connection with any of the Leases or
leasing commissions (individually, a "LEASE GUARANTOR," collectively, the "LEASE
GUARANTORS") to Borrower.
(f) 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 and collect 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 Debt or the Other 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.
-2-
(h) ENTRY. The right, at Lender's option, upon revocation of the
license granted herein, to enter upon the Property in person, by agent 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 and any or all other actions designated by Lender
for the proper management and preservation of the Property.
(j) 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. It is intended by
Borrower 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 the Cash Management Agreement, Lender grants to Borrower a revocable license
to collect, receive, use and enjoy the Rents and other sums due under the Lease
Guaranties and Borrower shall hold such Rents and all sums received pursuant to
any Lease Guaranty, or a portion thereof sufficient to discharge all current
sums due on the Debt, in trust for the benefit of Lender 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 Lender or to such other
party as Lender directs all Rents and all sums due under any Lease Guaranties
upon receipt from Lender of written notice to the effect that Lender is then the
holder of this Assignment and that an Event of Default (as defined in the Loan
Agreement) exists, and to continue so to do until otherwise notified by Lender.
Section 2.3 INCORPORATION BY REFERENCE. All representations,
warranties, covenants, conditions and agreements contained in the Loan Agreement
and the other Loan Documents as same may be modified, renewed, substituted 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.
ARTICLE 3 - REMEDIES
Section 3.1 REMEDIES OF LENDER. Upon or at any time after the
occurrence of an Event of Default, the license granted to Borrower in Section
2.1 of this Assignment shall automatically be revoked, and Lender shall
immediately be entitled to possession of all Rents and sums due under any Lease
Guaranties, whether or not Lender enters upon or takes control of the Property.
In addition, Lender may, at its option, without waiving such Event of Default,
without regard to the adequacy of the security for the Debt, either in person or
by agent, nominee or attorney, with or without bringing any action or
proceeding, or by a receiver appointed by a court, 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,
and take possession of the Property and all books, records and accounts relating
-3-
thereto and have, hold, manage, lease and operate the Property on such terms and
for such period of time as Lender may deem proper and either with or without
taking possession of the Property in its own name, demand, xxx for or otherwise
collect and receive all Rents and sums due under all Lease Guaranties, including
those past due and unpaid with full power to make from time to time all
alterations, renovations, repairs or replacements thereto or thereof as Lender
may deem proper and may apply the Rents and sums received pursuant to any Lease
Guaranties to the payment of the following in such order and proportion as
Lender 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 being limited thereto, the salaries, fees and wages
of a managing agent and such other employees or agents as Lender may deem
necessary or desirable and all expenses of operating and maintaining the
Property, including, without being limited thereto, all taxes, charges, claims,
assessments, water charges, sewer rents and any other liens, and premiums for
all insurance which Lender may deem necessary or desirable, and the cost of all
alterations, renovations, repairs or replacements, and all expenses incident to
taking and retaining possession of the Property; and (b) the Debt, together with
all costs and reasonable attorneys' fees. In addition, upon the occurrence of an
Event of Default, Lender, at its option, may (1) complete any construction on
the Property in such manner and form as Lender deems advisable, (2) exercise all
rights and powers of Borrower, including, without limitation, the right to
negotiate, execute, cancel, enforce or modify any Leases, obtain and evict
tenants, and demand, xxx for, collect and receive all Rents from the Property
and all sums due under any Lease Guaranties, (3) require Borrower to pay monthly
in advance to Lender, 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 Lender 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 Lender pursuant to the power and rights granted to
Lender hereunder shall be deemed to be a waiver by Lender of its rights and
remedies under the Loan Agreement, the Note, or the other Loan Documents and
this Assignment is made and accepted without prejudice to any of the rights and
remedies possessed by Lender under the terms thereof. The right of Lender to
collect the Debt and to enforce any other security therefor held by it may be
exercised by Lender either prior to, simultaneously with, or subsequent to any
action taken by it 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 Loan Agreement, the Note, the other Loan Documents or
otherwise with respect to the Loan in any action or proceeding brought by Lender
to collect same, or any portion thereof, or to enforce and realize upon the lien
and security interest created by this Assignment, the Loan Agreement, the Note,
or any of the other Loan Documents (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 Lender in any separate action or proceeding).
Section 3.3 OTHER SECURITY. Lender may take or release other
security for the payment of the Debt, may release any party primarily or
secondarily liable therefor and may
-4-
apply any other security held by it to the reduction or satisfaction of the Debt
without prejudice to any of its rights under this Assignment.
Section 3.4 NON-WAIVER. The exercise by Lender 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
Loan Agreement, the Leases, this Assignment or the other Loan Documents. The
failure of Lender 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
Lender 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 Loan Agreement, the
Note or the other Loan Documents, (b) the release regardless of consideration,
of the whole or any part of the Property, or (c) any agreement or stipulation by
Lender extending the time of payment or otherwise modifying or supplementing the
terms of this Assignment, the Loan Agreement, the Note, or the other Loan
Documents. Lender may resort for the payment of the Debt to any other security
held by Lender in such order and manner as Lender, in its discretion, may elect.
Lender may take any action to recover the Debt, or any portion thereof, or to
enforce any covenant hereof without prejudice to the right of Lender thereafter
to enforce its rights under this Assignment. The rights of Lender under this
Assignment shall be separate, distinct and cumulative and none shall be given
effect to the exclusion of the others. No act of Lender 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, Lender shall have 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 Lender 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. Lender shall have the right, but not the obligation, to serve upon
Borrower within such ten-day period a notice stating that (i) Lender demands
that Borrower assume and assign the Lease to Lender pursuant to Section 365 of
the Bankruptcy Code and (ii) Lender covenants to cure or provide adequate
assurance of future performance under the Lease. If Lender 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 Lender of the covenant provided for in
clause (ii) of the preceding sentence.
ARTICLE 4 - NO LIABILITY, FURTHER ASSURANCES
-5-
Section 4.1 NO LIABILITY OF LENDER. This Assignment shall not be
construed to bind Lender to the performance of any of the covenants, conditions
or provisions contained in any Lease or Lease Guaranty or otherwise impose any
obligation upon Lender. Lender 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
and 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, and hereby agrees to,
indemnify Lender for, and to hold Lender harmless from, any and all liability,
loss or damage which 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
which may be asserted against Lender 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 Lender incur
any such liability, the amount thereof, including costs, expenses and reasonable
attorneys' fees, shall be secured by this Assignment, the Mortgage and the other
Loan Documents and Borrower shall reimburse Lender therefor immediately upon
demand and upon the failure of Borrower so to do Lender may, at its option,
declare all sums secured by this Assignment, the Mortgage and the other Loan
Documents 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 Lender, 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
Lender 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 Mortgage), 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 constituting Lender a "mortgagee in possession" in the
absence of the taking of actual possession of the Property by Lender. In the
exercise of the powers herein granted Lender, no liability shall be asserted or
enforced against Lender, all such liability being expressly waived and released
by Borrower.
(a) FURTHER ASSURANCES. Borrower will, at the cost of Borrower, and
without expense to Lender, 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, require for the better
assuring, conveying, assigning, transferring and confirming unto Lender 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
Lender, 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 Lender to execute
in the name of Borrower to the extent Lender 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
-6-
Section 5.1 CONFLICT OF TERMS. In case of any conflict between the
terms of this Assignment and the terms of the Loan Agreement, the terms of the
Loan Agreement shall prevail.
Section 5.2 NO ORAL CHANGE. This Assignment and any provisions
hereof may not be modified, amended, waived, extended, changed, discharged or
terminated orally, or by any act or failure to act on the part of Borrower or
Lender, 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.
Section 5.3 GENERAL DEFINITIONS. All capitalized terms not defined
herein shall have the respective meanings set forth in the Loan Agreement.
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
"each Borrower and any subsequent owner or owners of the Property or any part
thereof or interest therein," the word "Lender" shall mean "Lender and any
subsequent holder of the Note", the word "Note" shall mean "the Note and any
other evidence of indebtedness secured by the Loan Agreement", 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's, 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 Lender 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. This Assignment shall be governed in
accordance with the terms and provisions of Section 10.3 of the Loan Agreement.
Section 5.6 TERMINATION OF ASSIGNMENT. Upon payment in full of the
Debt, this Assignment shall become and be void and of no effect.
Section 5.7 NOTICES. All notices or other written communications
hereunder shall be delivered in accordance with Section 10.6 of the Loan
Agreement.
Section 5.8 WAIVER OF TRIAL BY JURY. BORROWER HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING
DIRECTLY OR INDIRECTLY TO THIS ASSIGNMENT, THE NOTE, OR THE OTHER LOAN DOCUMENTS
OR ANY ACTS OR OMISSIONS OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS
IN CONNECTION THEREWITH.
-7-
Section 5.9 EXCULPATION. The provisions of Section 9.4 of the Loan
Agreement are hereby incorporated by reference into this Assignment to the same
extent and with the same force as if fully set forth herein.
Section 5.10 SUCCESSORS AND ASSIGNS. This Assignment shall be binding
upon and inure to the benefit of Borrower and Lender and their respective
successors and assigns forever.
Section 5.11 HEADINGS, ETC. The headings and captions of various
paragraphs of this Assignment are for convenience of reference only and are not
to be construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
-8-
IN WITNESS WHEREOF, Borrower has executed this instrument the day and
year first above written.
BORROWER:
Signed, Sealed and Delivered
in the Presence of: BEHRINGER HARVARD ASHFORD
PERIMETER H, LLC, a Delaware limited
liability company
____________________________
Unofficial Witness
By: _____________________________
Name: Xxxxxx X. Xxxxxxx, III
____________________________ Title: Secretary
Notary Public
My Commission Expires:___________
[NOTARY SEAL]
EXHIBIT A
LEGAL DESCRIPTION
All that tract or parcel of land lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx, XxXxxx Xxxxxx, Xxxxxxx, being more particularly described as follows:
BEGINNING at a point located at the intersection of the easterly right-of-way of
Ashford Dunwoody Road (having a variable right-of-way width) and the on ramp due
east of Interstate 285 and running along the southerly right-of-way of I-285
North 59 degrees 08 minutes 17 seconds East a distance of 633.43 feet to a point
located on the western boundary line of property commonly known as Oak Forest
Hills Subdivision; thence leaving the aforesaid I-285 right-of-way run thence
South 00 degrees 39 minutes 20 seconds West a distance of 1,512.42 feet to a
point located on the easterly right-of-way of Ashford Dunwoody Road; thence
leaving the aforesaid western boundary line, run along the easterly right-of-way
line of Ashford Dunwoody Road the following five (5) courses and distances and
following the curvature thereof: (1) North 29 degrees 02 minutes 32 seconds West
a distance of 744.58 feet to a point (2) along the arc of a 3,025.31-foot radius
curve to the right having an arc distance of 98.03 feet to a point (said arc
being subtended by a chord bearing North 27 degrees 59 minutes 16 seconds West
and being 98.02 feet in length); (3) North 20 degrees 27 minutes 54 seconds West
a distance of 73.64 feet to a point; (4) North 17 degrees 24 minutes 21 seconds
West a distance of 330.79 feet to a concrete monument found; and (5) North 05
degrees 00 minutes 59 seconds East a distance of 65.48 feet to a point, said
point being the POINT OF BEGINNING.
The above described property contains 10.62 acres (462,638 square feet), more or
less, and is shown on and described according to that certain ALTA/ACSM Survey
prepared by Frontline Surveying & Mapping, Inc., for Harvard Property Trust,
LLC, and Lawyers Title Insurance Corporation dated December 16, 2004, bearing
the seal of Xxxxxx Xxxxxx Xxxx, Xx., Georgia Registered Land Surveyor No. 2402,
which survey is incorporated herein by this reference and made a part of this
legal description.
A-1
