Exhibit 99.3
LOAN # 3960002-9001
ASSIGNMENT OF ENGINEER CONTRACT, PLANS AND SPECIFICATIONS
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AND CONSENT TO ASSIGNMENT
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FOR VALUE RECEIVED, BEHRINGER HARVARD NORTHWEST HIGHWAY LP, a Texas
limited partnership ("BORROWER") does hereby sell, assign, pledge, transfer and
set over to THE FROST NATIONAL BANK ("LENDER"), all of its rights, title and
interest in and to the following (collectively referred to hereinafter as the
"PLANS"): (i) all architectural and engineering, and design work prepared by any
civil engineering, landscape engineering, architectural and/or
mechanical/electrical engineering or architectural firm in conjunction with the
Improvements (hereinafter defined), (ii) any governmental permit for and/or
relating to the Improvements, (iii) any surveys, plot plans, plats and other
such survey or engineering items pertaining to the Improvements, (iv) any other
plans, specifications, drawings, appraisals or sketches relating to the
Improvements, and (v) the Engineering Contract (defined below), if any. This
Assignment is made as security for the payment and performance of the
Obligation, as defined in that certain Construction Loan Agreement (the "LOAN
AGREEMENT") of even date herewith, executed by and between Xxxxxxxx and Xxxxxx,
and including, without limitation, payment of the indebtedness evidenced by that
one certain promissory note (the "NOTE") dated of even date herewith, executed
by Xxxxxxxx and payable to the order of Lender in the original principal amount
not to exceed $4,550,000.00 (collectively the "OBLIGATION"). The term
"Improvements" as used herein shall mean the Improvements (as defined in the
Loan Agreement) to be developed and constructed by Borrower upon the Land (as
defined in the Loan Agreement). "Engineering Contract" means a written agreement
between Borrower and the Engineer (defined below) for engineering and related
services pertaining to the design and construction of the Improvements.
Xxxxxxxx agrees that Xxxxxx does not assume any of Xxxxxxxx's
obligations or duties concerning any of the items, rights and/or interests
assigned to Lender hereunder including, without limitation, the obligation to
pay for the preparation of such items, rights and/or interests, until and unless
Lender shall exercise its right, granted hereby, to the use of such items,
rights and/or interests.
Xxxxxxxx agrees that Xxxxxx may use the Plans for any purpose relating
to the Improvements including, but not limited to, inspections of construction
and the completion of the Improvements.
Neither Lender's acceptance of this Assignment nor consent to the use of
the Plans shall constitute a warranty, representation or approval of any kind by
Lender with respect to the Plans. Lender has no obligation or liability
whatsoever in connection with the Plans and no responsibility for the adequacy
thereof or for the construction of the Improvements contemplated by the Plans.
All inspections and/or site observations of the Plans, Property and/or
Improvements by or on behalf of Lender, if any, shall be deemed made for the
sole and exclusive benefit and use of Lender. Lender has no duty to Borrower,
any guarantor, any contractor or any other third party to inspect the
Improvements for any purpose, and Lender shall have no obligation or liability
to Borrower, any guarantor, any contractor or any other third party arising out
of any inspection or site observation by Lender or Lender's agents. No such
inspection or site observation, no failure to make any inspection or site
observation, and no
ASSIGNMENT OF ENGINEER CONTRACT, PLANS
AND SPECIFICATIONS AND CONSENT TO ASSIGNMENT PAGE 1
Exhibit 99.3
failure to make objections following any inspection or site observation by
Lender or any agent of Lender shall constitute: (1) a representation by or on
behalf of Lender to Borrower, any guarantor, any contractor or any other third
party that the Improvements comply with the Plans, Loan Documents or any
applicable law, regulation, ordinance or other governmental requirement (the
"GOVERNMENTAL REQUIREMENTS"), and/or (2) a waiver of Lender's right thereafter
to require that the Improvements be constructed or otherwise brought into
compliance with the Plans, Loan Documents or any applicable Governmental
Requirement.
Borrower hereby irrevocably constitutes and appoints Lender as its
attorney-in-fact to demand, receive, and enforce Xxxxxxxx's rights with respect
to the items, rights and/or interests covered hereby to give appropriate
receipts, releases and satisfactions for and on behalf of Borrower and to do any
and all acts in the name of Lender with the same force and effect as if Xxxxxxxx
had accomplished such act itself.
Borrower hereby represents and warrants to Lender that, except for any
assignment which may have been made to Lender, no previous assignment of its
interest in such items, rights and/or interests covered hereby has been made,
and Xxxxxxxx agrees not to assign, sell, pledge, transfer, mortgage or otherwise
encumber its interest in such items, rights and/or interests so long as this
Assignment is in effect.
This Assignment shall be binding upon and inure to the benefit of the
heirs, legal representatives, assigns and successors in interest of Xxxxxxxx and
Xxxxxx.
This Assignment shall remain in full force and effect until the
Obligation is paid in full and the lien of the Mortgage (as defined in the Loan
Agreement) is released from the Property covered thereby, in which event this
Assignment shall become null and void and of no further force and effect. Lender
shall not exercise any rights hereunder unless an Event of Default (as defined
in the Loan Agreement) shall have occurred under the provisions of the Loan
Agreement.
IN WITNESS WHEREOF, Xxxxxxxx has caused this Assignment to be executed
effective as of the ______ day of April, 2005.
BORROWER:
Behringer Harvard Northwest Highway LP, a Texas limited
partnership
By: Behringer Harvard Northwest Highway GP, LLC, a
Texas limited liability company, its General
Partner
By: ___________________________________________
Name: Xxxxxx X. Xxxxxxx, III
Title: Secretary
ASSIGNMENT OF ENGINEER CONTRACT, PLANS
AND SPECIFICATIONS AND CONSENT TO ASSIGNMENT PAGE 2
Exhibit 99.3
ENGINEER'S CONSENT TO ASSIGNMENT AND AGREEMENT
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____________________________________ ("ENGINEER") is the project
engineer in connection with the Improvements.
Engineer has received and reviewed this document, and by Engineer's
signature below: (a) consents to the assignment and encumbrance hereunder of the
Plans and of Borrower's Rights in the Engineering Contract, if any; (b) agrees
to continue performance under and in accordance with the Engineering Contract,
if any, at the request and for the benefit of Lender or its designee; (c)
certifies that the Plans comply with generally accepted engineering practice and
all applicable Governmental Requirements (and have been approved by the City of
Dallas for construction), and that the Improvements if constructed substantially
in accordance with the Plans will have direct and free access (adequate for the
intended uses of the Land and Improvements) to and connection with one or more
dedicated public streets and thoroughfares and water, storm and sanitary sewer,
gas, electric and telephone lines, pipes and services; and (d) subordinates all
liens, security interests and claims of Engineer against the Property, Borrower
and the Plans, to those of Lender under the Loan Documents.
IN WITNESS WHEREOF, Engineer has caused this Consent and Agreement to be
executed to be effective as of the ______ day of April, 2005.
ENGINEER:
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By: _________________________________________
Name: _______________________________________
Title: ______________________________________
ASSIGNMENT OF ENGINEER CONTRACT, PLANS
AND SPECIFICATIONS AND CONSENT TO ASSIGNMENT PAGE 3
