Exhibit 99.5
ASSIGNMENT OF LEASES AND RENTS,
made by
WOODCREST ROAD ASSOCIATES, L.P.
AND
WOODCREST ROAD URBAN RENEWAL, LLC
ASSIGNOR
in favor of
CITIGROUP GLOBAL MARKETS REALTY CORP.
ASSIGNEE
DATED AS OF JANUARY ___, 2006
THIS DOCUMENT PREPARED BY AND
RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
Sidley Austin LLP
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
THIS ASSIGNMENT OF LEASES AND RENTS (this "ASSIGNMENT") dated and
effective as of the ____ day of January, 2006 made by Behringer Harvard
WOODCREST ROAD ASSOCIATES, L.P., a Pennsylvania limited partnership having an
office at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("BEHRINGER LP")
and WOODCREST ROAD URBAN RENEWAL, LLC, a New Jersey limited liability company,
having an office at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000
("BEHRINGER LLC") (All references herein to "ASSIGNOR" shall mean and refer to
each of Behringer LP and Behringer LLC, or to any or all of such Behringer LP
and/or Behringer LLC, as appropriate to the context, with the choice of context
to be made by Assignee (as hereinafter defined), in Assignee's reasonable
discretion) to CITIGROUP GLOBAL MARKETS REALTY CORP., a New York corporation
(together with its successors and assigns, hereinafter referred to as
"ASSIGNEE"), having an address at 000 Xxxxxxxxx Xxxxxx, Xxxxx 00, Xxx Xxxx, Xxx
Xxxx 00000.
W I T N E S S E T H :
WHEREAS, Assignor is the (i) owner of a leasehold, subleasehold and fee
simple title to that certain parcel of real property (the "PREMISES") described
in EXHIBIT A attached hereto, together with the buildings, structures, fixtures,
additions, enlargements, extensions, modifications, repairs, replacements and
other improvements now or hereafter located thereon (collectively, the
"PROPERTY");
WHEREAS, Assignor and Assignee have entered into a certain Loan
Agreement dated as of the date hereof (as amended, modified, restated,
consolidated or supplemented from time to time, the "LOAN AGREEMENT") pursuant
to which Assignee has agreed to make a secured loan to Assignor in the maximum
principal amount of up to Fifty Million Four Hundred Thousand and No/Dollars
($50,400,000) (the "LOAN").
WHEREAS, Assignor has executed a note in such principal amount (as the
same may be amended, modified, restated, severed, consolidated, renewed,
replaced, or supplemented from time to time, the "NOTE"), which is secured by,
INTER ALIA, that certain mortgage, assignment of leases and rents and security
agreement (as amended from time to time, the "MORTGAGE", the Mortgage, the Note,
this Assignment and the Loan Agreement and such other documents, as any of the
same may, from time to time, be modified, amended or supplemented, being
hereinafter collectively referred to as the "LOAN DOCUMENTS" which Loan
Documents are incorporated herein by reference for all purposes) on the
Property.
WHEREAS, it is a condition to the obligation of Assignee to make the
Loan to Assignor pursuant to the Loan Agreement that Assignor execute and
deliver this Assignment; and
WHEREAS, capitalized terms used in this Assignment without definition
have the respective meanings assigned to such terms in the Loan Agreement or the
Mortgage, as the case may be, the terms of each of which are specifically
incorporated by reference herein.
NOW, THEREFORE, for good and valuable consideration, receipt of which by
the parties hereto is hereby acknowledged, and additionally for the purpose of
additionally
securing the Debt, Assignor hereby assigns, transfers, conveys and sets over
unto Assignee, all right, title and interest of Assignor in and to all Leases
and all Rents;
TO HAVE AND TO HOLD the same unto Assignee, and its successors and
assigns forever, upon the terms and conditions and for the uses hereinafter set
forth.
And Assignor hereby further agrees as follows:
1. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS. Subject to
the terms of the Loan Agreement, Assignor represents, warrants and covenants to
Assignee that:
(a) The payment of the Rents to accrue under any Lease will
not be waived, released, reduced, discounted or otherwise discharged or
compromised by Assignor;
(b) Assignor has not performed, and will not perform, any
acts, and has not executed, and will not execute, any instrument that would
prevent Assignee from exercising its rights under this Assignment; and
(c) Assignor hereby authorizes and directs any tenant under
any of the Leases and any successor to all or any part of the interests of any
such tenant to pay directly to the Clearing Account, in accordance with the
terms of the Loan Agreement, the Rents due and to become due under such tenant's
Lease, and such authorization and direction shall be sufficient warrant to the
tenant to make future payments of Rents directly to the Clearing Account in
accordance with the terms of the Loan Agreement without the necessity for
further consent by Assignor.
2. ASSIGNMENT; DEFERRED EXERCISE OF RIGHTS.
(a) As part of the consideration for the Debt, Assignor does
hereby absolutely and unconditionally assign to Assignee all right, title and
interest of Assignor in and to all present and future Leases and Rents, and this
Assignment constitutes a present and absolute assignment and is intended to be
unconditional and not as an assignment for additional security only. It is
further intended that it not be necessary for Assignee to institute legal
proceedings, absent any requirements of law or regulation to the contrary, to
enforce the provisions hereof. Assignor hereby authorizes Assignee or its agents
to collect the Rents; provided, however, that prior to an Event of Default, and
subject at all times to the requirement that payments and deposits of Rents be
made directly to the Clearing Account, Assignor shall have a revocable license,
but limited as provided in this Assignment and in any of the other Loan
Documents, to otherwise deal with, and enjoy the rights of the lessor under, the
Leases.
(b) Upon the occurrence and during the continuance of an
Event of Default, and without the necessity of Assignee entering upon and taking
and maintaining full control of the Property in person, by agent or by
court-appointed receiver, the license referred to in paragraph (a) above shall
immediately be revoked and Assignee shall have the right at its option, to
exercise all rights and remedies contained in the Loan Documents, or otherwise
available at law or in equity.
2
3. RENTS HELD IN TRUST BY ASSIGNOR. Rents held or received by
Assignor shall be held or received by Assignor as trustee for the benefit of
Assignee only and shall immediately be deposited directly to the Clearing
Account in accordance with the terms of the Loan Agreement.
4. EFFECT ON RIGHTS UNDER OTHER DOCUMENTS. Nothing contained in
this Assignment and no act done or omitted by Assignee pursuant to the powers
and rights granted it hereunder shall be deemed to be a waiver by Assignee of
its rights and remedies under any of the other Loan Documents, and this
Assignment is made and accepted without prejudice to any of the rights and
remedies possessed by Assignee under the terms of the other Loan Documents. The
rights of Assignee under the other Loan Documents may be exercised by Assignee
either prior to, simultaneously with, or subsequent to any action taken by it
hereunder. This Assignment is intended to be supplementary to and not in
substitution for or in derogation of any assignment of rents or grant of a
security interest contained in any of the other Loan Documents.
5. EVENT OF DEFAULT. Upon or at any time after the occurrence and
during the continuance of an Event of Default, then in addition to and without
limiting any of Assignee's rights and remedies hereunder and under the other
Loan Documents and as otherwise available at law or in equity:
(a) Assignee may, at its option, without waiving such Event
of Default and without regard to the adequacy of the security for the Debt,
either in person or by agent, without bringing any action or proceeding, or by a
receiver appointed by a court, without taking possession of the Property in its
own name, demand, sue for or otherwise collect and receive all Rents, including
those past-due and unpaid, for application to the payment of the Debt in
accordance with the terms of the Loan Documents, and Assignee may enter into,
and to the extent that Assignor would have the right to do so, cancel, enforce
or modify any Lease. The exercise by Assignee of the option granted it in this
Section and the collection of the Rents and the application thereof as herein
provided shall not be considered a waiver of any Event of Default.
(b) Assignor hereby acknowledges and agrees that payment of
any item of Rent by a Person to Assignee as hereinabove provided shall
constitute payment in full of such item of Rent by such Person, as fully and
with the same effect as if it had been paid to Assignor.
(c) Assignee in respect of the Leases and Rents shall have
all of the rights and remedies of a secured party under the Uniform Commercial
Code as in effect in the State in which such rights and remedies are asserted as
described in Section 12(b) to the extent of such rights thereunder and
additional rights and remedies to which a secured party is entitled under the
laws in effect in any jurisdiction where any rights and remedies hereunder may
be asserted.
6. APPLICATION OF RENTS AND PROCEEDS. After the occurrence and
during the continuance of an Event of Default, Rents received or held by
Assignor or Assignee shall be applied in accordance with the terms of the Loan
Documents.
3
7. ATTORNEY-IN-FACT. Upon the occurrence and during the continuance
of any Event of Default, Assignor hereby appoints Assignee the attorney-in-fact
of Assignor to take any action and execute any instruments that Assignor is
obligated, or has covenanted and agreed under the Loan Agreement or the other
Loan Documents to take or execute, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing provisions of this Section 7, upon the occurrence and during the
continuance of an Event of Default, Assignor does hereby irrevocably appoint
Assignee as its attorney-in-fact with full power, in the name and stead of
Assignor to demand, collect, receive and give complete acquittance for any and
all of the Rents now due or that may hereafter become due, and at Assignee's
discretion, to file any claim, to take any other action, to institute any
proceeding or to make any settlement of any claim, either in its own name or in
the name of Assignor or otherwise, which Assignee may deem necessary or
desirable in order to collect and enforce the payment of Rents.
8. TERMINATION. Assignee, by the acceptance of this Assignment,
agrees that when all of the Debt shall have been paid in full, this Assignment
shall terminate, and Assignee shall execute and deliver to Assignor, upon such
termination such instruments of termination or re-assignment and Uniform
Commercial Code termination statements, all without recourse and without any
representation or warranty whatsoever, as shall be reasonably requested by
Assignor provided, that, upon the termination and release of record of the
Mortgage, this Agreement shall automatically terminate, and the rights assigned
hereunder re-assigned to Assignor, without the need for a termination or
re-assignment of record.
9. EXPENSES. Assignor agrees to pay to Assignee all out-of-pocket
expenses (including expenses for attorneys' fees and costs of every kind) of, or
incident to, the enforcement of any of the provisions of this Assignment or
performance by Assignee of any obligation of Assignor hereunder which Assignor
has failed or refused to perform.
10. FURTHER ASSURANCES. Assignor agrees that, from time to time upon
the written request of Assignee, it will give, execute, deliver, file and/or
record any financing statements, notice, instrument, document, agreement or
other papers and do such other acts and things that may be necessary and
desirable to create, preserve, perfect or validate this Assignment, to enable
Assignee to exercise and enforce its rights hereunder with respect to this
Assignment or to otherwise carry out the purposes and intent of this Assignment.
11. NO OBLIGATION BY ASSIGNEE. By virtue of this Assignment,
Assignee shall not be obligated to perform or discharge, nor does it hereby
undertake to perform or discharge, any obligation, duty or liability under any
of the Leases. This Assignment shall not operate to constitute Assignee as a
lender in possession of the Property or to place responsibility for the control,
care, management or repair of the Property upon Assignee, nor shall it operate
to make Assignee responsible or liable for any waste committed on the Property
by any tenant or other party in possession or for any dangerous or defective
condition of the Property or for any negligence in the management, upkeep,
repair or control thereof.
12. MISCELLANEOUS.
4
(a) No failure on the part of Assignee or any of its agents
to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by Assignee or any of its
agents of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. Subject to
Section 16 hereof, the remedies herein are cumulative and are not exclusive of
any remedies provided by law.
(b) WITH RESPECT TO MATTERS RELATING TO THE CREATION,
PERFECTION AND PROCEDURES RELATING TO THE ENFORCEMENT OF THIS ASSIGNMENT, THIS
ASSIGNMENT SHALL BE GOVERNED BY, AND BE CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, EXCEPT
AS EXPRESSLY SET FORTH ABOVE IN THIS PARAGRAPH AND TO THE FULLEST EXTENT
PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL
GOVERN ALL MATTERS RELATING TO THIS ASSIGNMENT AND THE OTHER LOAN DOCUMENTS AND
ALL OF THE INDEBTEDNESS OR OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. ALL
PROVISIONS OF THE LOAN AGREEMENT INCORPORATED HEREIN BY REFERENCE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, AS SET FORTH IN THE GOVERNING LAW PROVISION OF THE LOAN AGREEMENT.
(c) Subject to Section 16 hereof, all rights and remedies
set forth in this Assignment are cumulative, and Assignee may recover judgment
thereon, issue execution therefor, and resort to every other right or remedy
available at law or in equity, without first exhausting and without affecting or
impairing the security of any right or remedy afforded hereby; and no such right
or remedy set forth in this Assignment shall be deemed exclusive of any of the
remedies or rights granted to Assignee in any of the Loan Documents. Nothing
contained in this Assignment shall be deemed to limit or restrict the rights and
remedies of Assignee under the Loan Agreement or any of the other Loan
Documents.
(d) Until the indebtedness and all other obligations secured
by the Loan Documents is paid in full, Assignor will, upon request, deliver from
time to time to Assignee executed originals to the extent available, otherwise
photocopies certified by Assignor as true, correct and complete, of executed
originals, of any and all existing Leases to which Assignor is a party, and
executed originals, or photocopies of executed originals, so certified by
Assignor, if an executed original is not available, of all other and future
Leases to which Assignor is a party, and upon request of Assignee, will
specifically transfer and assign to Assignee such other and future Leases upon
the same terms and conditions as herein contained.
(e) Assignor represents that it: (i) has been advised that
Assignee engages in the business of real estate financings and other real estate
transactions and investments which may be viewed as adverse to or competitive
with the business of Assignor or its affiliates; (ii) is represented by
competent counsel and has consulted counsel before executing this Assignment;
and (iii) has relied solely on its own judgment and on its counsel and advisors
in entering into the transaction(s) contemplated hereby without relying in any
manner on any
5
statements, representations or recommendations of Assignee or any parent,
subsidiary or affiliate of Assignee.
13. NO ORAL CHANGE. This Assignment may not be amended except by an
instrument in writing signed by Xxxxxxxx and Assignee.
14. SUCCESSORS AND ASSIGNS. Assignor may not assign its rights under
this Assignment except as permitted under the Loan Agreement. Subject to the
foregoing, this Assignment shall be binding upon, and shall inure to the benefit
of, Assignor and Assignee and their respective successors and assigns.
15. NOTICES. All notices, requests and other communications provided
for herein shall be given or made in writing in the manner specified in the Loan
Agreement.
16. EXCULPATION. It is expressly agreed that recourse against
Assignor for failure to perform and observe its obligations contained in this
Assignment shall be limited as and to the extent provided in Section 10.1 of the
Loan Agreement.
17. COUNTERPARTS. This Assignment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
18. JOINT AND SEVERAL. Each Person constituting Assignor hereunder
shall have joint and several liability for the obligations of Assignor hereunder
except as otherwise provided in the Loan Documents.
6
IN WITNESS WHEREOF, this Assignment has been duly executed by Assignor
as of the day and year first above written.
Woodcrest Road Urban Renewal, LLC,
a New Jersey limited liability company
By: Behringer Harvard Woodcrest III, LLC,
a Delaware limited liability company, its sole
member and manager
By: ________________________________________
Xxxxxx X. Xxxxxxx, III, Secretary
Woodcrest Road Associates, L.P.,
a Pennsylvania limited partnership
By: Behringer Harvard Woodcrest I, LLC
a Delaware limited liability company, its sole
general partner
By: ________________________________________
Xxxxxx X. Xxxxxxx, III, Secretary
7
STATE OF )
)SS:
COUNTY OF )
I CERTIFY that on January ___, 2006,
XXXXXX X. XXXXXXX, III, personally appeared before me and this person
acknowledged under oath to my satisfaction, that:
(a) this person signed and sealed the attached document as Secretary
of Behringer Harvard Woodcrest III, LLC, the limited liability company which is
the manager and sole member of Woodcrest Road Urban Renewal, LLC the limited
liability company named in this document;
(b) this document was signed and made by this person as the
company's voluntary act and deed and was duly authorized by the manager in its
capacity as sole member and manager of the company; and
(c) this person delivered the attached document as the voluntary act
and deed of the company as manager and sole member of the company.
---------------------------------
Notary Public
STATE OF )
)SS:
COUNTY OF )
I CERTIFY that on January ___, 2006,
XXXXXX X. XXXXXXX, III, personally appeared before me and this person
acknowledged under oath to my satisfaction, that:
(a) this person signed and sealed the attached document as Secretary
of Behringer Harvard Woodcrest I, LLC, the limited liability company which is
the sole general partner of Woodcrest Road Associates, L.P. the limited
partnership named in this document;
(b) this document was signed and made by this person as the limited
partnership's voluntary act and deed and was duly authorized by the company in
its capacity as sole general partner of the limited partnership; and
(c) this person delivered the attached document as the voluntary act
and deed of the company as sole general partner of the limited partnership.
---------------------------------
Notary Public
