Exhibit 10.104


 


COLLATERAL ASSIGNMENT OF CONTRACTS AND PLANS AND OTHER

AGREEMENTS AFFECTING REAL ESTATE


 


THIS COLLATERAL
ASSIGNMENT OF CONTRACTS AND PLANS AND OTHER AGREEMENTS AFFECTING REAL ESTATE
(this “Assignment”) made
this 8th day of March, 2007 by FRISCO
SQUARE Fl-1, LTD., a Texas limited partnership (“Assignor”),  to COMPASS BANK (“Assignee”),


 


W I T N E S S E T H:


 


Assignor, for a
valuable consideration paid by Assignee, the receipt and sufficiency of which
are hereby acknowledged, does hereby absolutely and unconditionally Assign,
Transfer and Set Over to Assignee all right, title and interest of Assignor in,
to and under the following items relating to the construction, use, operation
and maintenance of certain improvements described in Schedule I (the
“Improvements”) on the land
(the “Land”) described in Exhibit
A attached hereto and made a part hereof (the Land and the Improvements are
hereinafter collectively called the “Subject
Property”):


 


A.       All licenses, permits, approvals,
certificates and agreements with or from all boards, agencies, departments,
governmental or otherwise, relating directly or indirectly to the ownership,
use, operation and maintenance of the Subject Property, or the construction of
the Improvements, whether heretofore or hereafter issued or executed
(collectively, the “Licenses”),  such boards, agencies, departments,
governmental or otherwise being hereinafter collectively referred to as “Governmental Authorities”.


 


B.        All contracts, subcontracts, agreements,
service agreements, warranties and purchase orders, together with any and all
renewals, extensions and modifications thereof and all amendments, exhibits and
addenda thereto, which have been or will be executed by or on behalf of
Assignor, or which have been assigned to Assignor, in connection with the use,
operation and maintenance of the Property, or the construction of improvements
on the Property (the “Contracts”),  including, without limitation, the
Contracts described on Schedule I attached hereto and made a part hereof.
The parties with whom or to whom such Contracts have been or are given are
hereinafter collectively referred to as the “Contractors”.


 


C.        All plans, specifications, notes,
drawings, approvals, certifications and similar work product, and any and all
modifications thereof (collectively, the “Plans”)  prepared and hereafter prepared by the
Contractors.


 


All of the foregoing are
herein sometimes called the “Additional
Collateral”. The Additional Collateral is subject to a license
hereby granted by Assignee to Assignor to exercise its rights under the
Additional Collateral and to use the Plans, which license is limited as
hereinafter provided.


 


This Assignment is
made by Assignor as security for the payment of the following note,
obligations, indebtedness and liabilities: (a) one certain promissory note of
even date herewith in the principal amount of Eight Million Eight Hundred
Eighty-Nine Thousand and No/100 Dollars ($8,889,000.00) made by Assignor
and payable to the order of Assignee, including, without


 

















 


limitation, all
principal, interest, prepayment fees and charges, attorneys’ fees and interest
at the Default Rate (as such term is defined therein), both principal and
interest being payable as therein provided and being finally due and payable
twenty-four (24) months from the date thereof (subject to being extended as
provided in the Loan Agreement), together with all amendments, modifications
and extensions thereof, and all other notes given in substitution therefor or
in modification, increase, renewal or extension thereof, in whole or in part,
such note and all amendments, modifications and extensions thereof and all
other notes given in substitution therefor or in modification, increase,
renewal or extension thereof, in whole or in part, being hereinafter called the
“Note”;  and (b) all indebtedness now or hereafter
incurred or arising pursuant to the provisions of, or secured by, the Deed of
Trust, Security Agreement, Fixture Filing and Assignment of Leases and Rents of
even date with the Note (the “Deed of
Trust”)  made by
Assignor to secure the payment of the Note and covering the Subject Property
and certain other property described therein and the Construction Loan
Agreement (“Loan Agreement”)  of even date with the Note between
Assignor and Assignee which sets forth the terms and conditions for
disbursement of the loan evidenced by the Note; SUBJECT, HOWEVER, to the terms,
provisions and conditions herein set forth.


 


1.         Assignor hereby represents and warrants
to Assignee that: (a) the Contracts described in Schedule I are the only
Contracts between Assignor and the Contractor and Architect (as such terms are
defined in the Loan Agreement) relating to the construction of the
Improvements; (b) the Plans described in Schedule I are the sole and
exclusive plans, specifications and drawings to be used in connection with the
construction of the Improvements; (c) there are no amendments, exhibits or
addenda to such Contracts or the Plans, other than those described in Schedule
I; (d) Assignor is the sole owner of the entire right, title and interest
of owner in, to and under the Additional Collateral, has the full and complete
right to use the Plans and has good title to and good right to assign the
Additional Collateral to Assignee and no other person or entity has any right,
title or interest in the Additional Collateral except for the right title and
interest of the respective Contractors in the Plans; (e) the Licenses and
Contracts are, or will be when issued or entered into, in full force and effect
and there has been no default by Assignor or the respective Contractors
thereunder and no event has occurred which with the passage of time or the
giving of notice, or both, would constitute such a default; (f) Assignor has
not executed any prior assignments of, or in any way transferred or encumbered
or created or permitted any lien upon or charge against, the Additional
Collateral; (g) Assignor has performed no act or executed any other instrument
which might prevent Assignee from enjoying and exercising any of its rights and
privileges evidenced hereby. Assignor shall furnish to Assignee, upon Assignee’s
request, a complete list of all Contracts and Licenses. Further, if requested,
Assignor shall deliver to Assignee originals or certified copies of all
Contracts and Licenses, and other written agreements, correspondence and
memoranda between Assignor and Contractors and Governmental Authorities,
setting forth the contractual and other arrangements between them. To the
extent that Assignor does not have original or certified copies of the
foregoing in its possession, Assignor shall deliver copies of those of the
foregoing which are in its possession with a certification that to Assignor’s
knowledge and belief, they are true and correct copies.


 


2.         Assignor hereby covenants and agrees
with Assignee that, so long as the indebtedness evidenced by the Note or any
part thereof or any other indebtedness secured by the Deed of Trust shall
remain unpaid, (a) Assignor shall faithfully perform each and every one of its
duties and obligations under the Additional Collateral and observe, satisfy and
comply with each


 

















 


and every term, covenant,
condition, agreement, requirement, restriction and provision of the Additional
Collateral to be performed by Assignor; (b) Assignor shall enforce the
performance of each and every term, covenant, condition, agreement,
requirement, restriction and provision of the Additional Collateral to be
performed by the respective Contractors and shall not waive, excuse, condone,
discount, set off, compromise or in any manner release or discharge the
Contractors under the Contracts from any of the foregoing;

(c) Assignor shall not alter, modify or amend the Additional Collateral in any
material way, except by agreement in writing signed by Assignor, Assignee and
the applicable Contractor; (d) Assignor shall not cancel or terminate the
Licenses or Contracts; (e) Assignor shall give prompt notice to Assignee of any
claim of or notice of default under the Additional Collateral given to or by
Assignor, together with a copy of any such notice or claim if the same is in
writing; (f) Assignor will make no assignment, pledge or other disposition of
the Additional Collateral; (g) Assignor will not subordinate the Additional
Collateral to any deed of trust or mortgage or any other encumbrance of any
kind or permit, consent or agree to such subordination; (h) Assignor shall at
all times defend Assignee’s first and prior right in and to the Additional
Collateral against any and all claims adverse to the claim of Assignee; and (i)
Assignor shall appear in and defend any action arising out of, or in any manner
connected with, the Additional Collateral or the duties, obligations,
liabilities and responsibilities of Assignor or any guarantor or surety
thereunder or with respect thereto and, upon request by Assignee, shall make
appearance in the name and on behalf of Assignee, but at the expense of
Assignor.


 


3.         Until an event of default shall have
occurred under the Loan Agreement, or until occurrence of an event or circumstance
which with the lapse of time or the giving of notice, or both, would constitute
such an event of default, Assignor shall be entitled under the license hereby
granted, but limited as provided herein, to exercise its rights under the
Additional Collateral and to use the Additional Collateral in accordance with
the terms and conditions of this Assignment and the Loan Agreement. Upon the
conveyance by Assignor of the fee title to the Subject Property, all right,
title, interest and powers granted under said license shall automatically pass
to and may be exercised by each such subsequent owner. Upon the occurrence of
an event of default under the Loan Agreement or the occurrence of an event or
circumstance which with the lapse of time or the giving of notice, or both,
would constitute such an event of default, Assignee shall have the right, power
and privilege (but shall be under no duty) to terminate the license granted to
Assignor hereunder and thereupon Assignee shall have any and/or all of the
following rights and remedies: (a) Assignee may exercise any and all rights and
remedies and undertake any and all actions which would be available to Assignor
under the Additional Collateral, (b) Assignee may effect new Contracts and
Licenses, cancel or surrender existing Contracts or Licenses, alter and amend
the terms of and renew existing Contracts and Licenses, and make concessions to
Governmental Authorities and Contractors and

(c) Assignee may exercise any and all proprietary rights in and to the Plans
and fully utilize the Plans for Assignee’s sole benefit. Upon termination of
said license, the Contractors and the Governmental Authorities shall be, and
are hereby, fully authorized and empowered to continue the work and duties
contemplated by the Additional Collateral under the sole direction of Assignee,
to be bound and obligated under the Additional Collateral to the same extent as
such parties are bound and obligated to Assignor thereunder, and to permit
Assignee to retain and use the Additional Collateral for any and all purposes
as Assignee may deem appropriate with respect to the Property. Any of the
Governmental Authorities, Contractors or any other person requiring contact
with the holder of the Additional Collateral may rely on the affidavit of an
officer, agent


 

















 


or attorney of Assignee
stating that there has been an event of default for the purposes of allowing
Assignee its rights in the Additional Collateral pursuant to this paragraph.


 


4.         Assignee will not be deemed in any
manner to have assumed any of the Additional Collateral, nor shall Assignee be
liable to Governmental Authorities or Contractors by reason of any default by
any party under the Licenses or Contracts. Assignee shall not be liable for any
loss sustained by Assignor resulting from Assignee’s exercise of rights under
the Additional Collateral, or from any other act or omission of Assignee under
this Assignment unless such loss is caused by the gross negligence or willful
misconduct of Assignee, nor shall Assignee be obligated to perform or discharge
any obligation, duty or liability under the Additional Collateral by reason of
this instrument or the exercise of rights or remedies hereunder. Assignor shall
and does hereby agree to indemnify Assignee for, and to hold Assignee harmless
from, any and all liability, loss or damage incurred under the Additional
Collateral by reason of this instrument or the exercise of rights or remedies
hereunder, and from any and all claims and demands whatsoever which may be
asserted against Assignee by reason of any alleged obligations or undertakings
on its part to perform or discharge any of the terms, covenants or agreements
contained in the Additional Collateral. THE
INDEMNITIES AND RELEASES CONTAINED IN THIS PARAGRAPH SHALL INCLUDE LIABILITY,
LOSS OR DAMAGE RESULTING FROM THE NEGLIGENCE OF ASSIGNEE AND ANY STRICT
LIABILITY, BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ASSIGNEE. Should
Assignee incur any liability under the Additional Collateral by reason of this
instrument or the exercise of rights or remedies hereunder, or in defense of
any such claims or demands, the amount thereof, including costs, expenses and
reasonable attorney’s fees, shall be secured hereby and by the Deed of Trust
and Assignor shall reimburse Assignee therefor immediately upon demand, failing
which Assignee may, at its option, declare all indebtedness secured hereby and
by the Deed of Trust to be immediately due and payable. This Assignment shall
not operate to place responsibility upon Assignee for the construction of the
Improvements or in any way for the Subject Property, nor for the carrying out
of any of the terms and conditions of the Additional Collateral.


 


5.         This Assignment is primary in nature to
the obligation evidenced and secured by the Note, the Deed of Trust and any
other document given to secure and collateralize the indebtedness secured by
the Deed of Trust. Assignor agrees that Assignee may enforce this Assignment
without first resorting to or exhausting any other security or collateral;
provided, however, that nothing herein contained shall prevent Assignee from
suing on the Note, foreclosing the Deed of Trust or exercising any other right
under the Loan Agreement or any other document securing the payment of the Note
or at law or equity.


 


6.         Nothing contained herein 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 the Note, the Deed of Trust and the Loan Agreement or a waiver or curing
of any default hereunder or under the Note, the Deed of Trust or the Loan
Agreement, and this Assignment is made and accepted without prejudice to any of
the rights and remedies possessed by Assignee under the terms of the Note, the
Deed of Trust and the Loan Agreement. The right of Assignee to collect said
principal, interest and other indebtedness secured hereby and by the Deed of
Trust and to enforce any other security therefor held by it may be exercised by
Assignee either prior to, simultaneously with, or subsequent to any action
taken by it hereunder.


 

















 


7.         If the Note and all other indebtedness
secured hereby are paid as the same becomes due and payable and if all of the
covenants, warranties, undertakings and agreements made in the Deed of Trust,
the Loan Agreement and this Assignment are kept and performed, this Assignment
shall become null and void and of no further force and effect but the
affidavit, certificate, letter or statement of any officer, agent or attorney
of Assignee showing any part of the Note or such other indebtedness to remain
unpaid or any of such covenants, warranties, undertakings and agreements not to
be kept or performed shall be and constitute conclusive evidence of the
validity, effectiveness and continuing force of this Assignment and any person
may, and is hereby authorized to, rely thereon.


 


8.         Assignee may take or release other
security for the payment of the Note and other indebtedness secured by the Deed
of Trust, may release any party primarily or secondarily liable therefor and
may apply any other security held by it to the satisfaction of the Note and
such other indebtedness without prejudice to any of its rights under this
Assignment.


 


9.         Assignee may at any time and from time
to time in writing (a) waive compliance by Assignor with any covenant herein
made by Assignor to the extent and in the manner specified in such writing; (b)
consent to Assignor doing any act which hereunder Assignor is prohibited from
doing, or consent to Assignor failing to do any act which hereunder Assignor is
required to do, to the extent and in the manner specified in such writing; or
(c) release the Additional Collateral or any interest therein, from this
Assignment. No such act shall in any way impair the rights of Assignee
hereunder except to the extent specifically agreed to by Assignee in such
writing.


 


10.       The rights and remedies of Assignee
hereunder shall not be impaired by any indulgence, including but not limited to
(a) any renewal, extension or modification which Assignee may grant with
respect to any indebtedness secured hereby, (b) any surrender, compromise,
release, renewal, extension, exchange or substitution which Assignee may grant
in respect of any item of the property covered by the Deed of Trust or by any
instrument securing the indebtedness secured thereby or any part thereof or any
interest therein, or (c) any release or indulgence granted to any endorser,
guarantor or surety of any indebtedness secured hereby.


 


11.       A determination that any provision of
this Assignment is unenforceable or invalid shall not affect the enforceability
or validity of any other provision and any determination that the application
of any provision of this Assignment to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity of such provision
as it may apply to any other persons or circumstances.


 


12.       This Assignment and the terms,
provisions, representations and warranties herein contained shall be binding
upon Assignor, and Assignor’s successors and assigns, and shall inure to the
benefit of Assignee, its successors and assigns, including any purchaser upon
foreclosure of the Deed of Trust, any receiver in possession of the property
described therein, and any corporation formed by or on behalf of Assignee which
assumes Assignee’s rights and obligations under the Loan Agreement. All
references in this Assignment to Assignor or Assignee shall be deemed to
include all such successors and assigns of such respective party.


 

















 


13.       Within this Assignment, words of any
gender shall be held and construed to include any other gender, and words in
the singular number shall be held and construed to include the plural and words
in the plural number shall be held and construed to include the singular,
unless the context otherwise requires.


 


14.       It is expressly agreed by the parties
hereto that this Assignment shall not be construed or deemed made for the
benefit of any third party or parties.


 


15.       This Assignment contains the entire
agreement between the parties hereto concerning the assignment of the
Additional Collateral. No variations, modifications or changes herein or hereof
shall be binding upon any party hereto, unless set forth in a document duly
executed by or on behalf of such party.


 


16.      THIS ASSIGNMENT AND THE OTHER LOAN
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO TEXAS’
PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THAT THE LAWS OF THE
UNITED STATES OF AMERICA AND ANY RULES, REGULATIONS, OR ORDERS ISSUED OR
PROMULGATED THEREUNDER, APPLICABLE TO THE AFFAIRS AND TRANSACTIONS ENTERED INTO
BY ASSIGNEE, OTHERWISE PREEMPT TEXAS LAW; IN WHICH EVENT SUCH FEDERAL LAW SHALL
CONTROL. ASSIGNOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION
OF ANY TEXAS OF FEDERAL COURT SITTING IN DALLAS, TEXAS OVER ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, AND
ASSIGNOR HEREBY AGREES AND CONSENTS THAT, IN ADDITION TO ANY METHODS OF SERVICE
OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY
SUCH SUIT, ACTION OR PROCEEDING IN ANY TEXAS OR FEDERAL COURT SITTING IN
DALLAS, TEXAS MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO ASSIGNOR AT THE ADDRESS OF ASSIGNOR FOR THE GIVING OF
NOTICES UNDER SECTION 10.13 OF THE LOAN AGREEMENT, AND SERVICE SO MADE
SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED.


 


17.       ASSIGNOR AND ASSIGNEE, BY ACCEPTANCE OF
THIS ASSIGNMENT, ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO TRIAL BY
JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR
IN ANY WAY RELATED TO, THIS ASSIGNMENT OR THE INDEBTEDNESS.


 

















 


IN WITNESS
WHEREOF, Assignor has executed this Assignment as of the date first above
written.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  FRISCO SQUARE F1-1,
  LTD. 

  a Texas limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Fairways FS F1-1, LLC,
  a Texas limited 

  liability company, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Cathy Sweeney

  
	
   

  	
   

  	
   

  	
  Name:

  	
    Cathy
  Sweeney

  
	
   

  	
   

  	
   

  	
  Title:

  	
           Manager

  
						



 

















 


SCHEDULE I TO

COLLATERAL ASSIGNMENT OF CONTRACTS AND PLANS

AND OTHER AGREEMENTS AFFECTING REAL ESTATE


 


1.         Description
of Specific Contracts:


 


(a)                    Agreement dated
November 27, 2006, by and between Assignor, as owner, and HCBeck, as general
contractor.


 


(b)                   Agreement dated
June 28, 2006, by and between Assignor, as owner, and Millett Engineering
Group, Inc., as structural engineer.


 


(c)                    Agreement
dated June 22, 2006, by and between Assignor, as owner, and JJA, as mechanical
and electrical engineer.


 


2.         Description
of Improvements:


 


A Class A four story
office/retail building containing approximately 62,487 square feet of space to
be constructed upon the land described in Exhibit A attached hereto and
made a part hereof, which is to be constructed in accordance with the Plans.


 


3.         Description
of Plans:


 


Plans and specifications
for the construction of the Improvements, including but not limited to, those
described on Schedule II attached hereto and made a part hereof.