Exhibit 10.12
ASSIGNMENT OF LEASES AND
RENTS
[WHITEWATER]
THIS ASSIGNMENT OF LEASES AND RENTS (this
“ Assignment ”) is made this 13 th
day of February, 2008, by BEHRINGER HARVARD WHITEWATER, LLC, a
Delaware limited liability company (“ Grantor
”), whose address is 15601 Dallas Parkway, Suite 600,
Addison, Texas 75001 Attention: Gerald J. Reihsen, III, and
BANK OF AMERICA, N.A., a national banking association, as
Administrative Agent (in such capacity, together with any successor
Administrative Agent hereafter appointed by the Lenders, “
Administrative Agent ”), for itself and on behalf of
the Loan Parties (defined below), whose address is 901 Main Street,
20th Floor, Dallas, Texas 75202 Attn: Real Estate
Administration.
RECITALS
A.
Behringer Harvard Opportunity OP I, LP, a Texas limited partnership
(the “ Operating Partnership ”) and certain of
its Subsidiaries, including Grantor, (the “ Subsidiary
Obligors ”) (the Operating Partnership and Subsidiary
Obligors are sometimes referred to herein, collectively, as “
Borrowers ”) may from time to time be indebted to the
Loan Parties pursuant to that certain Credit Agreement dated as of
even date herewith (as modified, amended, renewed, restated or
supplemented from time to time, the “ Credit Agreement
”), among Borrowers, Administrative Agent, L/C Issuer, Swap
Bank and the Lenders (herein so called) now or hereafter made a
party to the Credit Agreement (Administrative Agent, L/C Issuer,
Swap Bank and Lenders, together with their respective successors
and assigns, are herein called the “ Loan Parties
”). The Credit Agreement evidences, in part, a
$75,000,000 loan (with an option to increase the amount of such
loan up to $150,000,000 as provided in the Credit Agreement) (the
“ Loan ”).
B.
In connection with and pursuant to the terms of the Credit
Agreement, Grantor hereby executes and delivers this Assignment to
Administrative Agent, for the ratable benefit of the Loan
Parties.
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AGREEMENT
1.
Definitions . Capitalized terms used herein but not
otherwise defined herein shall have the meaning assigned to such
terms in the Credit Agreement.
2.
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 ”).
3.
Loan Documents . Grantor has executed that certain Mortgage,
Assignment of Rents and Leases, Security Agreement, Fixture Filing
and Financing Statement (the “ Mortgage ”), of
even date herewith (this Assignment, the Credit Agreement, the
Mortgage, and all instruments and all other documents executed in
connection with the Loan are hereinafter referred to collectively
as the “ Loan Documents ”). The terms
“Credit Agreement”, “Mortgage”, and
“Loan Documents” shall be deemed to include any and all
modifications, amendments, extensions, renewals and substitutions,
supplements or restatements, in whole or in part,
thereof.
4.
Assignment . As an inducement to the Loan Parties to
extend certain financial accommodations to Borrowers and as
additional security for the Secured Indebtedness (as defined in the
Mortgage), Grantor does hereby absolutely and unconditionally
assign, transfer and set over to Administrative Agent, for the
ratable benefit of the Loan Parties, all Rents (hereinafter
defined) and all of Grantor’s rights, title and interest in
and under all Leases (hereinafter defined), subject however to a
license hereby granted by Administrative Agent to Grantor to
collect and receive and expend all of the Rents until the
occurrence of a Default. Upon the occurrence of a
Default, Administrative Agent shall have the right, power and
privilege (but shall be under no duty) to terminate Grantor’s
license to collect the Rents, which shall to the fullest extent
permitted by applicable law, be sufficient action by Administrative
Agent to entitle Administrative Agent to immediate and direct
payment of the Rents (including delivery to Administrative Agent of
Rents collected for a period in which the termination of
Grantor’s license to collect the Rents occurs and for any
subsequent period), for application as provided in this Assignment,
all without the necessity of any further action by Administrative
Agent, including without limitation, any action to obtain
possession of any portion of the Property. Leases and Rents
are defined as follows:
(1)
any leases, licenses, concession agreements, franchises and other
occupancy agreements and other agreements demising, leasing or
granting rights of possession or use or, to the extent of the
interest therein of Grantor, any sublease, subsublease or
sublicense, which now or hereafter may affect the Property or any
part thereof or interest therein, including any agreement relating
to a loan or other advance of funds made in connection with any
such lease, license, concession agreement, franchise or other
occupancy agreement and such sublease, subsublease or sublicense,
and every amendment, restatement, supplement consolidation or other
modification of or other agreement relating to or entered into in
connection with such lease, license, concession agreement,
franchise or other occupancy agreement and such sublease,
subsublease or
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sublicense, 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 any guarantees of leasing commissions
(collectively, the “ Leases ”); and
(2)
all rents, issues, profits, royalties, receipts, revenues, accounts
receivable, security deposits and other deposits (subject to the
prior right of Tenants making such deposits) and income, including
fixed, additional and percentage rents, occupancy charges,
operating expense reimbursements, reimbursements for increases in
taxes, sums paid by Tenants to Grantor to reimburse Grantor for
amounts originally paid or to be paid by Grantor or its agents or
Affiliates for which such Tenants were liable, as, for example,
tenant improvements costs in excess of any work letter, lease
takeover costs, moving expenses and tax and operating expense
pass-throughs for which a Tenant is solely liable, parking, valet,
maintenance, common area, tax, insurance, utility and service
charges and contributions, proceeds of sale of electricity, gas,
heating, air-conditioning and other utilities and services,
deficiency rents and liquidated damages, and other benefits (all of
the foregoing being hereinafter referred to collectively as the
“ Rents ”).
Notwithstanding anything contained herein to
the contrary, in no event shall this Assignment be deemed to reduce
the Indebtedness by an amount in excess of the actual amount of
cash received by Grantor under any Lease, whether before, during or
after the occurrence of a Default, and Grantor acknowledges that in
no event shall the Indebtedness be reduced by the value from time
to time of the Rents of or from the Property. In addition,
Administrative Agent reserves the right, at any time, whether
before or after the occurrence of a Default, to re-characterize
this Assignment as merely constituting security for the
indebtedness of Grantor to the Loan Parties, which
re-characterization shall be made by written notice delivered to
Grantor. Grantor’s receipt of any rents, issues, and
profits pursuant to this assignment after the institution of
foreclosure proceedings, either by court action or by the private
power of sale contained in the Mortgage, shall not cure a Default,
or affect such proceedings or sale. THIS ASSIGNMENT SHALL NOT
CONSTITUTE OR EVIDENCE ANY PAYMENT WHATSOEVER ON ACCOUNT OF THE
INDEBTEDNESS, AND THE INDEBTEDNESS SHALL BE REDUCED BY AMOUNTS IN
THE COLLECTION ACCOUNT ONLY IF AND TO THE EXTENT THAT SUCH AMOUNTS
ARE ACTUALLY PAID TO ADMINISTRATIVE AGENT, FOR THE RATABLE BENEFIT
OF THE LOAN PARTIES, AND APPLIED BY THE LOAN PARTIES IN REDUCTION
OF THE UNPAID PRINCIPAL BALANCE OF THE INDEBTEDNESS.
5.
Warranties and Covenants as to Leases . Grantor
represents, warrants, and covenants to Administrative Agent and the
Loan Parties that (i) it has delivered to Administrative Agent
a true and correct copy of all Leases and each guarantee thereof
(if any), affecting any part of the Property, together with an
accurate and complete rent roll for the Property, and no such Lease
or guarantee contains any option to purchase all or any portion of
the Property or any interest therein or contains any right of first
refusal relating to any sale of the Property or any portion thereof
or interest therein; (ii) 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
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and
title to assign the same and the Rents 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; (iii) there is no outstanding assignment or pledge of
the Leases or of the Rents due or to become due thereunder;
(iv) there are no existing defaults under the terms of the
Leases on the part of Grantor or, to the best knowledge of Grantor,
any other party thereto; and (v) that no Rents payable under
the Leases 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; and that the
existing Leases contain no cancellation clauses in favor of the
Tenants 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.
6.
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.
7.
Administrative Agent Rights as to Leases and Rents .
This is a current, direct and absolute assignment, and
Administrative Agent, on behalf of the Loan Parties, shall have the
right, at its option after the occurrence of and during the
continuation of a Default, to enter and take possession of the
Property and to perform all acts necessary for the operation and
maintenance of the Property 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 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 sue for
possession of the premises covered by any Lease, and to relet such
premises and collect the Rents accruing by reason of such
reletting. Administrative Agent shall apply the Rents as
specified in Section 8 below.
8.
License to Grantor Until Default . Until the
occurrence of a Default, Grantor shall have a license (which
license shall terminate automatically and without further notice
upon the occurrence of a Default) to collect, but not prior to
accrual, the Rents under the Leases and, where applicable,
subleases, such Rents to be held in trust for Administrative Agent,
for the ratable behalf of the Loan Parties, 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 as were collected that month and held in trust
for Administrative Agent; pro
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