This instrument was prepared by
and upon recordation should be
returned to:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
LINCOLN PLAZA, SUITE 4000
▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Exhibit 99.2
ASSIGNMENT OF RENTS AND LEASES
THIS ASSIGNMENT OF RENTS AND LEASES (the "ASSIGNMENT") made and executed
as of 8th day of September, 2005, by BEHRINGER HARVARD LANDMARK LP, a Texas
limited partnership, whose MAILING ADDRESS is ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("BORROWER") to, in favor of and for the benefit of STATE
FARM BANK, F.S.B., a federal savings bank, whose mailing address is ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("STATE FARM"),
W I T N E S S E T H:
WHEREAS, State Farm has made a loan to Borrower (the "LOAN") which is
evidenced by that certain Promissory Note executed by the Borrower to and in
favor of State Farm of even date herewith in the principal amount of TWENTY-TWO
MILLION AND NO/100 DOLLARS ($22,000,000.00) (the "NOTE").
WHEREAS, the Note is secured by (I) a Deed of Trust and Security
Agreement executed by Borrower and in favor of State Farm of even date herewith
(the "DEED OF TRUST") granting to State Farm, among other things, a first
priority lien and encumbrance upon the Real Estate (as defined in the Deed of
Trust) and Improvements (as defined in the Deed of Trust) legally described in
EXHIBIT A attached to this Assignment (the "PREMISES"); and (II) certain other
Loan Documents (as defined in the Deed of Trust), also executed by the Borrower
to and in favor of State Farm of even date herewith, the terms and provisions of
which Deed of Trust and other Loan Documents are by this reference thereto
incorporated herein and made a part hereof.
WHEREAS, as a material inducement to State Farm to make the Loan and as
further security for the Loan, Borrower makes this Assignment.
NOW, THEREFORE, for $10.00 and other good and valuable considerations,
the receipt and sufficiency of which are hereby acknowledged, Borrower agrees as
follows:
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1. ASSIGNMENT OF RENTS AND LEASES.
1.1 DEFINITIONS. For purposes of this Assignment, the following
definitions shall apply:
1.1.1 "CREDIT LEASES". The lease(s) on or with respect to the
Premises, including any sublease(s), assignment(s), and replacement lease(s)
therefor, listed and described on EXHIBIT B attached to this Assignment.
1.1.2 "OTHER LEASES". Any lease(s) on or with respect to the
Premises other than the Credit Leases.
1.1.3 "LEASES". Collectively, the Credit Leases and the Other
Leases.
1.1.4 "GUARANTEES". Any and all guarantees of the payment of
rent by and performance of all other obligations of the tenant(s) under the
Leases.
1.1.5 OTHER DEFINITIONS. Capitalized terms not otherwise
defined in this Assignment shall have the meanings ascribed to such terms in the
Note, the Deed of Trust and other Loan Documents.
1.2 ASSIGNMENT OF RENTS. Subject to the terms and conditions of this
Assignment, Borrower hereby absolutely, unconditionally and irrevocably
transfers, conveys, assigns and grants to State Farm all of Borrower's right,
title and interest in and to all rents, issues, profits, proceeds, income,
revenues, royalties, advantages, avails, claims against guarantors, security and
other deposits (whether in cash or other form), advance rentals, damages,
insurance and condemnation proceeds and any and all other payments or benefits
now or hereafter derived, directly or indirectly, from the Real Estate and
Improvements, whether under the Leases or otherwise (collectively the "RENTS").
1.3 ASSIGNMENT OF LEASES. Subject to the terms and conditions of
this Assignment, Borrower hereby absolutely, unconditionally and irrevocably
assigns and grants to State Farm all of Borrower's right, title and interest as
landlord in, to and under all Leases, together with any and all Guarantees.
1.4 ABSOLUTE ASSIGNMENTS. The foregoing assignments of Rents and
Leases are present and absolute assignments and not collateral assignments.
State Farm's right to the Rents and Leases is not contingent upon its possession
of the Premises.
1.5 LICENSE. State Farm hereby grants to and confers upon Borrower a
revocable license to collect and retain the Rents as the same become due and
payable under the Leases, but not in excess of 30 days in advance of their due
date, so long as, and only so long as, no Event of Default (as herein defined)
exists under this Assignment, the Note, the Deed of Trust or any of the other
Loan Documents (the "LICENSE"). Upon the occurrence of an Event of Default under
this Assignment, the Note, the Deed of Trust or any of the other Loan Documents,
the License granted
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and conferred herein may be immediately and automatically revoked upon notice
from State Farm to Borrower, and thereupon shall immediately cease and terminate
without further notice.
Upon any such revocation and termination of the License, State Farm
shall have the right to notify all tenants under the Leases to pay the Rents
then due and thereafter coming due directly to State Farm. After such revocation
and termination of the License, any and all Rents received by the Borrower shall
be remitted to State Farm not later than THREE (3) BUSINESS DAYS following
Borrower's receipt of the same.
Borrower hereby authorizes and directs any tenant under the Leases, upon
receipt of written notice from State Farm stating that an Event of Default has
occurred or exists under the Note, the Deed of Trust or any of the other Loan
Documents, to pay directly to State Farm the Rents then due and thereafter
coming due under the Leases. Borrower agrees that any tenant shall have the
right to rely upon any such notice from State Farm without any obligation, and
without any right, to inquire as to whether any such Event of Default has
actually occurred or exists and notwithstanding any claim of Borrower to the
contrary. Borrower shall have no claim (and hereby waives any claim) against any
tenant for the Rents paid by such tenant directly to State Farm following its
receipt of any such notice from State Farm.
1.6 COVENANTS.
1.6.1 NEGATIVE COVENANTS. As to the Leases, generally, except
as provided in SECTION 1.6.3, Borrower hereby covenants and agrees that it shall
not, without the prior written consent of State Farm, (I) alter or modify in any
material respect, cancel, terminate, discharge or compromise the Leases or the
Rents due or to become due thereunder or change the terms of any Guarantees in
any material respect; (II) accept any Rents for more than one installment in
advance; (III) waive, release, reduce, discount or otherwise discharge or
compromise any Rents; (IV) waive, release, reduce, discount or otherwise
discharge or compromise any Guarantees; or (V) execute any other assignment of
the Leases or the Rents, whether absolute or conditional. State Farm shall have
a period of ten (10) business days from receipt of any request for its consent
for any of foregoing matters. If State Farm shall not have responded within such
period, its consent shall be deemed to have been given to Borrower with respect
to such matter.
1.6.2 AFFIRMATIVE COVENANTS. As to the Credit Leases only,
Borrower shall: (I) promptly notify State Farm in writing of any default or of
any attempted termination, relocation or buyout, or any notice of the same given
by either the Borrower or any tenant; (II) perform all of its covenants,
agreements and obligations as landlord under the Credit Leases, (III) not suffer
or permit to occur any release of liability of any tenant or guarantor or the
accrual of any right in any tenant or guarantor to withhold payment of Rents;
and (IV) use commercially reasonable efforts to enforce the terms of the Credit
Leases and all remedies available to the Borrower as landlord under the Credit
Leases against the tenants in any case of any material default by any tenant
under the Credit Leases.
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1.6.3 AS TO THE OTHER LEASES. As to the Other Leases,
Borrower, so long as Borrower is not in default under this Assignment or any
other Loan Documents and is otherwise acting in good faith and in a commercially
reasonable manner, shall have the right, should any tenant of one or more of the
Other Leases become insolvent, fail to perform its lease obligations or abandon
the leased premises, to (I) waive, release, reduce, discount or cancel any Rents
due under said Other Leases and/or (II) make any commercially prudent
modification to such Other Leases.
2. DEFAULT AND REMEDIES.
2.1 DEFAULT.
(A) It shall constitute an event of default ("EVENT OF
DEFAULT") of and under this Assignment and, at the option of State Farm,
under the other Loan Documents, if Borrower shall fail to perform or
observe any of the covenants, agreements or conditions of this
Assignment and any such failure shall remain unremedied for THIRTY (30)
DAYS after notice to Borrower of the occurrence of such failure (the
"GRACE PERIOD"); provided, however, that State Farm may, at its option,
extend any applicable Grace Period up to NINETY (90) DAYS if State Farm
determines in good faith that: (i) such default cannot reasonably be
cured within such Grace Period but can be cured within NINETY (90) DAYS;
(ii) no lien or security interest created by the Loan Documents shall be
impaired prior to the anticipated completion of such cure; and (iii)
State Farm's immediate exercise of any remedies provided in this
Assignment or by law is not necessary for the protection or preservation
of the Premises or State Farm's security interest therein or lien
thereon, and Borrower shall immediately commence and diligently pursue
the cure of such default; further provided, that the Grace Period may be
further extended up to, but not in excess of, ONE HUNDRED EIGHTY (180)
DAYS, in the aggregate, if (1) State Farm determines in good faith that
: (A) such default cannot be cured within NINETY (90) DAYS, but can be
cured within ONE HUNDRED EIGHTY (180) DAYS; (B) no lien or security
interest created by the Loan Documents shall be impaired prior to the
anticipated completion of such cure; and (C) State Farm's immediate
exercise of any remedies provided in this Assignment or by law is not
necessary for the protection or preservation of the Premises or State
Farm's security interest therein or lien thereon, and Borrower shall be
diligently pursuing the cure of such default, and (2) Borrower provides
other additional assurance reasonably satisfactory to State Farm that
State Farm's rights in the Premises will not be jeopardized during any
such period.
(B) It shall constitute an Event of Default of and under
this Assignment if there shall occur under the Note, Deed of Trust and
other Loan Documents an Event of Default as defined in those Loan
Documents.
2.2 REMEDIES.
(A) Upon the occurrence of an Event of Default, the License
may be revoked upon notice from State Farm to Borrower, whereupon such
License shall immediately cease and
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terminate without further notice to the Borrower and without regard to
the adequacy or inadequacy of State Farm's security under this
Assignment, the Deed of Trust or the other Loan Documents. Thereupon,
State Farm shall be entitled to exercise any and all rights and remedies
provided in this Assignment, the Deed of Trust and the other Loan
Documents. The application of any Rents collected by State Farm shall be
in accordance with the terms of the Deed of Trust.
(B) The rights and remedies provided in this Assignment
shall not be deemed exclusive of any rights or remedies granted to State
Farm in the Deed of Trust or by law, but shall be deemed special and
additional rights and remedies and shall be cumulative with those rights
and remedies granted in the Deed of Trust or by law.
3. MISCELLANEOUS.
3.1 PERFECTION. This Assignment shall be perfected upon its
recordation in the official public records of Collin County, Texas. Neither
possession of the Rents nor the appointment of a Receiver of the Premises shall
be required for such perfection.
3.2 ASSIGNMENT. State Farm may assign its rights in and under this
Assignment to any subsequent holder of the Note and Deed of Trust and to any
person acquiring title to the Premises through foreclosure of the Deed of Trust
or otherwise.
3.3 OBLIGATIONS. State Farm shall not be obligated to perform or
discharge, nor, by its acceptance of this Assignment, does it undertake to
perform or discharge, any obligation, duty or liability of Borrower, as landlord
under the Leases, or otherwise. Nothing herein contained shall be construed as
causing State Farm to be a "Mortgagee in Possession" and State Farm shall have
no liability of a Mortgagee in Possession by exercising it rights under this
Assignment, all such liability being expressly waived and released by Borrower.
3.4 OWNERSHIP. Borrower represents and warrants that it is the
absolute owner of the Rents and Leases with full right, power and authority to
execute and deliver this Assignment. To the knowledge of Borrower, each of the
Leases is legally valid, binding upon and enforceable against the tenant named
therein, except as limited by bankruptcy, insolvency or other laws of general
application relating to an enforcement of creditor's rights and to the
application of principles of equity, and has not been changed or modified except
as stated in the Certificate of Borrower executed contemporaneously with this
Assignment. There is no outstanding assignment or pledge of the Rents or Leases
or any one thereof, nor are there any existing defaults under the Leases or any
one thereof. To the best of Borrower's knowledge, no tenant under any Lease has
any defenses, set offs or counterclaims against Borrower.
3.5 NOTICES. Any Notice required to be given hereunder shall be
given in the manner specified in the Deed of Trust.
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3.6 CONFLICT. In the event of a conflict between the provisions of
this Assignment and any other Loan Documents, this Assignment shall control.
3.7 COOPERATION. Borrower agrees to cooperate with any reasonable
request of State Farm to implement the provisions of this Assignment.
3.8 SUCCESSORS AND ASSIGNS. Whenever the word "Borrower" is used
herein, it is agreed and understood that the same includes and shall be binding
upon the Borrower's successors and assigns and any party holding title to the
Premises by, through or under the Borrower. All of the rights, powers,
privileges and immunities herein granted and assigned to State Farm shall also
inure to its successors and assigns, including all holders of the Note and Deed
of Trust. This Assignment shall be governed by the laws of the State in which
the Real Estate is located.
3.9 WAIVER OF TRIAL BY JURY. BORROWER HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM FILED BY ANY PARTY, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING, DIRECTLY OR INDIRECTLY TO THIS ASSIGNMENT OR ANY ACTS OR
OMISSIONS OF THE BORROWER IN CONNECTION THEREWITH OR CONTEMPLATED THEREBY.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Borrower has executed this Assignment as of the day
and year first above written.
BORROWER:
BEHRINGER HARVARD LANDMARK LP,
a Texas limited partnership
By: Behringer Harvard Landmark GP, LLC
a Texas limited liability company,
its general partner
By:
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
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THE STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned authority, on this day personally appeared
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, Secretary of Behringer Harvard Landmark GP, LLC, a Texas
limited liability company, as general partner of BEHRINGER HARVARD LANDMARK LP,
a Texas limited partnership, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, in the capacity
therein stated, and as the act and deed of said limited partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
_______________, 2005.
{ S E A L }
_________________________________
Notary Public in and for
the State of Texas
My Commission Expires:
____________________
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EXHIBIT A
LEGAL DESCRIPTION OF REAL ESTATE
TRACT I:
--------
BEING a 8.625 acre tract of land out of the McJimp Bays Survey, Abstract No. 65,
and being all of ▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ ▇/▇▇▇▇ as recorded in Cabinet J, Slide 500 as
Clerk Document #96-0104853, Plat Records of Collin County, Texas (PRCCT), said
tract being more particularly described as follows:
BEGINNING at a 5/8 inch iron rod found for the intersection of the southeast
corner of a called 25.000 acre tract as conveyed to ▇▇▇▇ ▇▇▇▇▇ Estates, Inc. and
evidenced in a Special Warranty Deed recorded in Clerk's File Number ▇▇-▇▇▇▇▇▇▇
ORRPCCT, with the west right-of-way line of the Dallas North Tollway (a variable
width right-of-way), said point being the northeast corner of ▇▇▇ ▇, ▇▇▇▇▇
▇/▇▇▇▇ and the beginning of a curve to the right having a radius of 1899.86
feet, a delta of 02(degree)14'19" and a chord bearing and distance of South
03(degree)48'04" West, 74.22 feet;
THENCE southwesterly along said curve to the right, and along said west line, an
arc length of 74.23 feet to a 1/2 inch iron rod found for point of tangency;
THENCE South 04(degree)54'59" West, continuing along said West line, for a
distance of 312.11 feet to a 1/2 inch iron rod found for the point of curvature
of a curve to the left having a radius of 5784.58 feet, a delta of
01(degree)42'04" and a chord bearing and distance of South 04(degree)03'57"
West, 171.74 feet;
THENCE southwesterly, continuing along said west line for an arc length of
171.74 feet to a found "X" in concrete for point of tangency;
THENCE South 03(degree)12'55" West, continuing along said west line, for a
distance of 9.09 feet to a found "X" in concrete for corner, said point being
the northeast corner of ▇▇▇ ▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇/▇▇▇▇;
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇)▇▇'▇▇" West, along the north line of said Lot 3, being
also the south line of Lot 4 (common line) for a distance of 636.56 feet to a
found 5/8 inch iron rod for corner in the east line of Country Brook Section 4,
an addition to the City of Dallas according to the map or plat thereof recorded
in Clerk's File Number 96-0001181 L.R.C.C.T.;
THENCE North 00(degree)29'43" West, continuing along said east line, for a
distance of 473.88 feet to a 5/8 inch iron rod found corner in the north line of
said Country Brook Section 4;
THENCE South 89(degree)30'17" West, along said north line, for a distance of
26.30 feet to a 5/8 inch iron rod found for corner in the east line of Landmark
Addition, Phase Two, an addition to the City of Dallas according to the Map or
Plat recorded in Clerk's File Number 96-0001184 L.R.C.C.T.;
9
THENCE North 00(degree)29'43" West, leaving said north line and along said east
line of Landmark Addition, Phase Two, a distance of 91.12 feet to a 5/8 inch
iron rod found for corner in the south line of said ▇▇▇▇ ▇▇▇▇▇ Estates, (Owner's
Deed C.C.C. File No. ▇▇-▇▇▇▇▇▇▇);
THENCE North 89(degree)30'17" East, along said south line for a distance of
712.10 feet to the POINT OF BEGINNING and CONTAINING 375,707 square feet or
8.625 acres of land, more or less.
TRACT II:
---------
Being a 11.27 acre tract of land out of the McJimp Bays Survey, Abstract No. 85
and being all of ▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ ▇/▇▇▇▇ as recorded in Cabinet J, Slide 500 as
Clerk Document #96-0104853, Plat Records of Collin County, Texas (PRCCT), said
tract being more particularly described as follows:
BEGINNING at a 5/8 inch iron rod found for the intersection of the northeast
corner of ▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ ▇/▇▇▇▇, as recorded in Collin County, Texas (DRCCT),
with the west right-of-way line of the Dallas North Tollway (a variable width
right-of-way);
THENCE South 89(degree)30'17" West, along the north line of Lot 5, a distance of
656.71 feet to a 5/8 inch iron rod found for corner in the east line of Country
Brook Section 4, an Addition to the City of Dallas according to the Map or Plat
thereof recorded in Clerk's File No. 96-0001181, LRCCT;
THENCE North 45(degree)29'43" West, along said east line, for a distance of
15.41 feet to a 1/2 inch iron found for the point of curvature of a curve to the
right having a radius of 50 feet, a delta of 45(degree)00'00" and a chord
bearing and distance of North 22(degree)59'43" West, 38.27 feet;
THENCE northwesterly, continuing along said east line and along said curve to
the right an arc length of 39.27 feet to a 1/2 inch iron rod found for point of
tangency;
THENCE North 00(degree)29'43" West, continuing along said east line, for a
distance of 540.84 feet to a 1/2 inch iron rod found for the point of curvature
of a curve to the right having a radius of 50.00 feet, a delta of
45(degree)00'00" and a chord bearing and distance of North 22(degree)00'17"
East, 38.27 feet;
THENCE northeasterly, continuing along said east line and along said curve to
the right an arc length of 39.27 feet to a 1/2 inch iron rod found for point of
tangency;
THENCE North 44(degree)30'17" East, continuing along said east line, for a
distance of 71.21 feet to a 1/2 inch iron rod found for corner;
THENCE North 00(degree)29'43" West, continuing along said east line for a
distance of 54.46 feet to a 5/8 inch iron rod found for corner in the north line
of said Lot 3, said line being also the south line of ▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ ▇/▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇)▇▇'▇▇" East, along said north line, for a distance of
636.56 feet to a chiseled "X" found for corner in said west right-of--way line
of said Dallas Tollway;
10
THENCE South 03(degree)12'55" West, continuing along said west line, for a
distance of 234.96 feet to a 1/2 iron rod found for the point of curvature to
the left having a radius of 5054.07 feet, a delta of 03(degree)45'52" and a
chord bearing and distance of South 01(degree)19'59" West, 332.00 feet;
THENCE Southwesterly, continuing along said west line for an arc length of
332.06 feet to a 1/2 inch iron rod set for point of tangency;
THENCE South 00(degree)32'57" East, continuing along said west line, for a
distance of 5.09 feet to a 1/2 inch iron rod set for the point of curvature of a
curve to the left having a radius of 1919.86 feet, a delta of 04(degree)39'25"
and a chord bearing and distance of 02(degree)52'40" East, 156.00 feet;
THENCE Southwesterly, continuing along said west line and along said curve to
the left an arc length of 156.04 feet to the POINT OF BEGINNING and CONTAINING
491.22 square feet, or 11.27 acres of land, more or less.
TRACT III:
----------
Non-exclusive Easement Estates as created and defined by that certain Easement
and Maintenance Agreement, dated October 28, 1996, filed November 11, 1996,
recorded in Clerk's File No. 96-0097230, Real Property Records, Collin County,
Texas, Clarification Agreement recorded in Clerk's File No. 96-0107158; and by
that certain Declarations of Easements, dated November 11, 1996, filed November
21, 1996, recorded in Clerk's File No. 96-0100329, Real Property Agreements,
Collin County, Texas, First Amendment to Declarations of Easements recorded in
Clerk's File No. 96-0107156, Real Property Records, Collin County, Texas.
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EXHIBIT B
TENANT SQ. FT.
CompUSA Inc. 122,273 (Landmark I)
CompUSA Inc 135,154 (Landmark II)
Each of the leases with respect to the foregoing tenants is more particularly
described in that certain Borrower's Certificate executed in connection
herewith.
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