ASSIGNMENT OF RENTS, LEASES AND RECEIVABLESAssignment Agreement |
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BEHRINGER HARVARD SHORT TERM OPPORTUNITY FUND I LP | BANK OF AMERICA, N.A. | Behringer Harvard Mockingbird Commons GP, LLC | BEHRINGER HARVARD MOCKINGBIRD COMMONS, LLC | Greenberg Traurig, LLP. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Search Assignment Agreement by:
Exhibit 10.5
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Ralph G. Santos
Greenberg Traurig, LLP
2200 Ross Avenue
Suite 5200
Dallas, Texas 75201
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[SPACE ABOVE LINE FOR RECORDER’S USE ONLY] |
ASSIGNMENT OF RENTS, LEASES AND RECEIVABLES
THIS ASSIGNMENT OF RENTS, LEASES AND RECEIVABLES (this “Assignment”) made as of the day of September, 2007, by BEHRINGER HARVARD MOCKINGBIRD COMMONS, LLC, a Delaware limited liability company, having its principal place of business at 15601 Dallas Parkway, Suite 600, Addison, Texas 75001, as assignor (“Borrower”) to BANK OF AMERICA, N.A., a national banking association, as Administrative Agent (“Administrative Agent”) on behalf of itself and certain other Lenders (herein so called) having an address of 901 Main Street, 21st Floor, Dallas, Texas 75201, as assignee.
INTRODUCTORY PROVISIONS:
The following matters are true and correct, are a part of this Assignment, and form the basis for this Assignment:
A. Borrower owns certain real property in Dallas County, Texas (the “Hotel Tract”) more particularly described on Exhibit A attached hereto and made a part hereof for all purposes, upon which is situated, a hotel and other amenities related thereto (collectively, the “Hotel”). The Hotel Tract and the Hotel are collectively referred to as the “Property”.
B. Borrower has executed the Note of even date pursuant to the terms of the Loan Agreement.
C. The Note is secured by the Deed of Trust and the Loan Documents.
D. Borrower desires to assign the Leases, Rents and Receivables to the Administrative Agent for the ratable benefit of all Lenders.
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms which are not defined in this Assignment shall have the respective meanings set forth in the Deed of Trust. As used in this Assignment, the following terms shall have the meanings set forth below:
Bankruptcy Code: The United States Bankruptcy Code, 11 U.S.C. § 101 et seq., as the same may be amended from time to time.
Bankruptcy Claims: All of Borrower’s claims and rights to the payment of damages and other claims arising from any rejection by a lessee of any Lease under the Bankruptcy Code.
Deed of Trust: The Deed of Trust, Security Agreement, Fixture Filing and Financing Statement dated of even date herewith given by Borrower for the benefit of Administrative Agent covering Borrower’s leasehold estate in the Property, for the purposes of securing the payments under the Note.
Leases: Any and all existing or future lease, sublease (to the extent of Borrower’s rights thereunder) or other agreement under the terms of which any person has or acquires any right to occupy or use the Property, or any part thereof, or interest therein, and all extensions, renewals, modifications and replacements of each such lease, sublease, or agreement, whether or not in writing, providing for the use, enjoyment or occupancy of all or any part of Property in which Borrower is the lessor thereunder, together with any extension, renewal or replacement of the same, whether entered into before or after the filing by or against Borrower of any petition for relief under the Bankruptcy Code.
Lease Guaranties: All claims and rights under any and all lease guaranties, letters of credit and any other credit support (individually, a “Lease Guaranty”, and collectively, the “Lease Guaranties”) given to Borrower by any guarantor in connection with any of the Leases (individually, a “Lease Guarantor”, and collectively, the “Lease Guarantors”).
Lease Rent Notice: A notice from Administrative Agent to each lessee under the Leases (with a copy to Borrower) that each such lessee under the Leases is directed to pay to Administrative Agent all Rents thereafter accruing, provided, however, no Lease Rent Notice shall be sent to hotel guests.
Loan Agreement: The Construction Loan Agreement dated of even date herewith, executed by and between Borrower and Administrative Agent and any other Lender now or hereafter made a party thereto.
Loan Documents: Certain documents (other than this Assignment) now or hereafter executed by Borrower and/or others and by or in favor of Administrative Agent which by their terms wholly or partially secure or guarantee the payments under the Note or are defined as “Loan Documents” in the Deed of Trust.
Note: Collectively, whether one or more, each Deed of Trust Note issued by Borrower and pursuant to the terms of the Loan Agreement in the aggregate principal amount of up to $42,000,000 (together with all extensions, renewals, modifications, substitutions and amendments thereof), with interest from the date thereof at the rates set forth in the Loan
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Agreement, principal and interest to be payable in accordance with the terms and conditions provided in the Loan Agreement.
Operating Expenses: All costs and expenses related to the ownership, operation, management, repair and leasing of the Property, including, without limitation, ground lease payments, costs and expenses associated with the operation of any parking garage, insurance charges and premiums, Impositions, the costs of prevention of waste, ordinary repairs, maintenance, environmental audits, property management, security, normal fees paid to accountants, reasonable marketing and promotional expenses, reasonable legal expenses, and all costs related to compliance with applicable Governmental Requirements.
Receivables: All of Borrower’s rights and interests in and to all payments for goods or property sold or leased or for services rendered, whether or not yet earned by performance, and not evidenced by an instrument or chattel paper, in connection with the operation of the Property, including, without limiting the generality of the foregoing, (i) all accounts, contract rights, book debts, and notes arising from the operation of the Hotel or arising from the sale, lease or exchange of goods or other property and/or the performance of services, (ii) Borrower’s rights to payment from any consumer credit/charge card organizations or entities which sponsor and administer such cards as, by way of example but not limitation, the American Express Card, the Visa Card and the Mastercard, (iii) Borrower’s rights in, to and under all purchase orders for goods, services or other property, (iv) Borrower’s rights to any goods, services or other property represented by any of the foregoing, (v) monies due to or to become due to Borrower under all contracts for the sale, lease or exchange of goods or other property and/or the performance of services including the right to payment of any interest or finance charges in respect thereto (whether or not yet earned by performance on the part of Borrower), and (vi) all collateral security and guaranties of any kind given by any person or entity with respect to any of the foregoing. Receivables shall include those now existing or hereafter created, substitutions therefor, proceeds (whether cash or non-cash, movable or immovable, tangible or intangible) received upon the sale, exchange, transfer, collection or other disposition or substitution thereof and any and all of the foregoing and proceeds therefrom.
Rents: All right, title and interest of Borrower in and to all income, rents, room rates, issues, profits, revenues, deposits, accounts and other benefits from the operation of the Hotel, including, without limitation, all revenues and credit card receipts collected from guest rooms, restaurants, bars, mini-bars, meeting rooms, banquet rooms and recreational facilities and otherwise, all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of sale, lease, sublease, license, concession or other grant of the right of the possession, use or occupancy of all or any portion of the Property, or personality located thereon, or rendering of services by Borrower or any entity generating such income for the benefit of Borrower, including, without limitation, any operator or manager of the hotel or the commercial space located in the Property or acquired from others including, without limitation, from the rental of any office space, retail space, commercial space, guest room or other space, halls, stores or offices located on the Property, including any deposits securing reservations of such space, exhibit or sales space of every kind, license, lease, sublease and concession fees and rentals, health club and spa membership fees, food and beverage wholesale and retail sales, service charges, vending machine sales and proceeds, if any, from business interruption or other loss of income insurance relating to the use, enjoyment or
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occupancy of the Property, whether paid or accruing before or after the filing by or against Borrower of any petition for relief under Debtor Relief Laws.
“Revenues”: Rents and Receivables.
Additional Definitions. As used herein, the following terms shall have the following meanings:
(a) “Hereof”, “hereby”, “hereto”, “hereunder”, “herewith”, and similar terms mean of, by, to, under and with respect to, this “Assignment or to the other documents or matters being referenced.
(b) “Heretofore” means before, “hereafter” means after, and “herewith” means concurrently with, the date of this “Assignment.
(c) All pronouns, whether in masculine, feminine or neuter form, shall be deemed to refer to the object of such pronoun whether same is masculine, feminine or neuter in gender, as the context may suggest or require.
(d) All terms used herein, whether or not defined in Section 1.1 hereof, and whether used in singular or plural form, shall be deemed to refer to the object of such term whether such is singular or plural in nature, as the context may suggest or require.
Any capitalized term utilized herein has the meaning as specified in the Deed of Trust given by Borrower, unless such term is otherwise specifically defined herein.
ARTICLE II
ASSIGNMENT
Section 2.1 Property Assigned. As additional security for the Secured Indebtedness, Borrower does absolutely and unconditionally assign Borrower’s entire right, title and interest in and to the following property, rights, interests and estates, whether now owned, or hereafter acquired (the “Assignment Property”):
(a) Revenues. Any and all Revenues;
(b) Bankruptcy Claims. Any and all Bankruptcy Claims;
(c) Lease Guaranties. Any and all Lease Guaranties;
(d) Proceeds. All proceeds from any sale or other disposition of the Leases, the Revenues, the Lease Guaranties and the Bankruptcy Claims;
(e) Other Rights of Borrower. All rights, powers, privileges, options and other benefits of Borrower (i) to make claim for, receive, collect and apply all Revenues payable or receivable in connection with the operation of the Hotel (and to apply the same to the payment of the Secured Indebtedness or the other Obligations), and (ii) as lessor under the Leases and under the Lease Guaranties, including without limitation the immediate and continuing right to make claim for, receive, collect and apply all Rents
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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 Secured Indebtedness or the other Obligations).
(f) Entry and Possession. The right, at Administrative Agent’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 Revenues and enforce the Leases and Contracts.
(g) 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 5.1 of this Assignment and any or all other actions reasonably designated by Administrative Agent for the proper management and preservation of the Property. Administrative Agent agrees it will not exercise such Power of Attorney until after the occurrence of an Event of Default.
(h) Other Rights and Agreements. Any and all other rights of Borrower in and to the items set forth in subsections (a) through (g) above, and all amendments, modifications, replacements, renewals, extensions, supplements, restatements and substitutions thereof.
ARTICLE III
CONSIDERATION
Section 3.1 Consideration. This Assignment is made in consideration of that certain loan made by Administrative Agent to Borrower evidenced by the Note, Loan Agreement and secured by the Deed of Trust and the Loan Documents.
ARTICLE IV
TERMS OF ASSIGNMENT
Section 4.1 Present Assignment. For Ten Dollars ($10.00) and other good and valuable consideration, including the Secured Indebtedness evidenced by the Note, the receipt and sufficiency of which are hereby acknowledged and confessed, Borrower has absolutely GRANTED, BARGAINED, SOLD, CONVEYED, TRANSFERRED, ASSIGNED AND SET OVER and by these presents does absolutely and unconditionally GRANT, BARGAIN, SELL, CONVEY, TRANSFER, ASSIGN AND SET OVER, the Assignment Property unto Administrative Agent on behalf of itself and the Lenders, in order to provide a source of future payment of the Secured Indebtedness and the Obligations, subject only to the Permitted Exceptions applicable thereto and the License (herein defined), it being the intention of Borrower and Administrative Agent that this conveyance be presently effective; TO HAVE AND TO HOLD the Assignment Property unto Administrative Agent on behalf of itself and the Lenders, forever, and Borrower does hereby bind itself, its successors, and assigns to warrant and forever defend the title to the Assignment Property unto Administrative Agent against every person whomsoever lawfully claiming or to claim the same or any part thereof; provided, however, that if Borrower shall pay or cause to be paid the Secured Indebtedness as and when same shall become due and payable and shall perform and discharge or cause to be performed and
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discharged the Obligations on or before the date same are to be performed and discharged, then this Assignment shall terminate and be of no further force and effect, and all rights, titles, and interests conveyed pursuant to this Assignment shall become vested in Borrower without the necessity of any further act or requirement by Borrower or Administrative Agent.
Section 4.2 Limited License. Administrative Agent hereby grants to Borrower a limited license (the “License”) subject to termination of the License and the other terms and provisions hereof, to (i) exercise and enjoy all incidences of the status of a lessor with respect to the Rents, including without limitation, the right to collect, demand, sue for, attach, levy, recover, and receive the Rents, and to give proper receipts, releases, and acquittances therefore, and (ii) collect, demand, sue for, attach, levy, recover, and receive the Receivables, and to give proper receipts, releases, and acquittances therefore. Borrower hereby agrees to collect and retain all Revenues and apply the Revenues collected by Borrower first to the payment of the Secured Indebtedness (to the extent then due and payable) next to payment of Operating Expenses and next to the performance and discharge of the Obligations (to the extent then due). Thereafter, Borrower may use the balance of the Revenues collected in any manner not inconsistent with the Loan Documents. Neither this Assignment nor the receipt of Revenues by Administrative Agent shall effect a pro tanto payment of the debt evidenced by, or arising under the Secured Indebtedness, and such Revenues shall be applied as provided in this Section 4.2. Furthermore, and notwithstanding the provisions of this Section 4.2, no credit shall be given by Administrative Agent for any Revenues until the money collected is actually received by Administrative Agent at its principal office in Dallas, Texas, or at such other place as Administrative Agent shall designate in writing, and no such credit shall be given for any Revenues after termination of the License, after foreclosure or other transfer of the Property (or part thereof from which Revenues are derived pursuant to the Deed of Trust) to Administrative Agent or any other third party, except to the extent Administrative Agent actually applies such Revenues to the Secured Indebtedness.
Section 4.3 Notice to Lessees. During the continuation of a Default, Administrative Agent may deliver Lease Rent Notices to any or all lessees of all or any portion of the Property. Upon receipt from Administrative Agent of a Lease Rent Notice, each lessee under the Leases is hereby authorized and directed to pay directly to Administrative Agent all Rents thereafter accruing and the receipt of Rents by Administrative Agent shall be a release of such lessee to the extent of all amounts so paid. The receipt by a lessee under the Leases of a Lease Rent Notice shall be sufficient authorization for such lessee to make all future payments of Rents directly to Administrative Agent and each such lessee shall be entitled to rely on such Lease Rent Notice and shall have no liability to Borrower for any Rents paid to Administrative Agent after receipt of such Lease Rent Notice. Rents so received by Administrative Agent for any period prior to foreclosure under the Deed of Trust or acceptance of a deed in lieu of such foreclosure shall be applied by Administrative Agent to the payment of the following (in such order and priority as Administrative Agent shall determine): (a) all Operating Expenses; and all expenses incident to taking and retaining possession of the Property and/or collecting Rent as it becomes due and payable; and (b) the Secured Indebtedness and/or to the operation and management of the Property, including the payment of management, brokerage and attorney’s fees and expenses. In no event will the provisions of this Section 4.3 reduce the Secured Indebtedness except to the extent, if any, that Rents are actually received by Administrative Agent and applied upon or after said receipt to such Secured Indebtedness in accordance with the preceding sentence. Without
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impairing its rights hereunder, Administrative Agent may, at its option, at any time and from time to time, release to Borrower, Rents so received by Administrative Agent or any part thereof. As between Borrower and Administrative Agent, and any person claiming through or under Borrower, other than any lessee under the Leases who has not received a Lease Rent Notice, this Assignment is intended to be absolute, unconditional and presently effective (and not an assignment for additional security), and the Lease Rent Notice hereof is intended solely for the benefit of each such lessee and shall never inure to the benefit of Borrower or any person claiming through or under Borrower, other than a lessee who has not received such notice. It shall never be necessary for Administrative Agent to institute legal proceedings of any kind whatsoever to enforce the provisions of the Deed of Trust with respect to Rents or Receivables. BORROWER SHALL HAVE NO RIGHT OR CLAIM AGAINST ANY LESSEE FOR THE PAYMENT OF ANY RENTS TO ADMINISTRATIVE AGENT HEREUNDER, AND BORROWER HEREBY INDEMNIFIES AND AGREES TO HOLD FREE AND HARMLESS EACH LESSEE FROM AND AGAINST ALL LIABILITY, LOSS, COST, DAMAGE OR EXPENSE SUFFERED OR INCURRED BY SUCH LESSEE BY REASON OF SUCH LESSEE’S COMPLIANCE WITH ANY DEMAND FOR PAYMENT OF RENTS MADE BY ADMINISTRATIVE AGENT CONTEMPLATED BY THIS DEED OF TRUST.
Section 4.4 Termination of Assignment. Upon payment in full of the Secured Indebtedness and the delivery and recording of a reconveyance, release, satisfaction or discharge of the Deed of Trust duly executed by Administrative Agent, this Assignment shall become null and void and shall be of no further force and effect.
ARTICLE V
REMEDIES
Section 5.1
