Exhibit
10.3


PREPARED BY AND
UPON

RECORDATION RETURN TO:


Thacher Proffitt
& Wood LLP


Two World
Financial Center


New York, New York
10281


Attn: Donald F. Simone, Esq.


INSTRUCTIONS
TO RECORDER:  INDEX THIS DOCUMENT AS A
DEED OF TRUST, AN ASSIGNMENT OF LEASES AND RENTS, A SECURITY AGREEMENT AND A
FIXTURE FILING


BEHRINGER HARVARD 101 SOUTH TRYON LP,
as grantor

(Borrower)


To


DONALD F.
SIMONE, ESQ.,


as trustee


(Trustee)


for the benefit of


CITIGROUP
GLOBAL MARKETS REALTY CORP., as beneficiary

(Lender)


DEED OF
TRUST, ASSIGNMENT OF LEASES AND

RENTS, SECURITY AGREEMENT AND FIXTURE

FILING


	
  

  	
   

  	
  Dated:

  	
   

  	
  As of October 26, 2006

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Location:

  	
   

  	
  101 South Tryon Street

  
	
   

  	
   

  	
   

  	
   

  	
  Charlotte, North Carolina 28280

  
	
   

  	
   

  	
  File No.:

  	
   

  	
  20655-00010

  



 















 


THIS DEED OF TRUST, ASSIGNMENT OF
LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this
“Security Instrument”), is made as of
October 26, 2006, by BEHRINGER HARVARD 101 SOUTH TRYON LP, a Delaware limited partnership, having its principal
place of business at 15601 Dallas Parkway, Suite 600, Addison, Texas 75001, as
grantor (“Borrower”) to DONALD F. SIMONE, ESQ., having an address at c/o Thacher
Proffitt & Wood LLP, Two World Financial Center, New York, New York 10281,
as trustee (“Trustee”), for the benefit of
CITIGROUP GLOBAL MARKETS REALTY CORP.,
a New York corporation, having an address at 388 Greenwich Street, Floor 11,
New York, New York 10013, as beneficiary (together with its successors and
assigns, hereinafter referred to as “Lender”).


Borrower and Lender have
entered into a Loan Agreement, dated as of the date hereof (as amended,
modified, restated, consolidated or supplemented from time to time, the “Loan Agreement”) pursuant to which
Lender is making a secured loan to Borrower in the maximum principal amount of
up to ONE HUNDRED FIFTY-MILLION AND 00/100 DOLLARS ($150,000,000.00) (the “Loan”).  Capitalized terms used herein without
definition are used as defined in the Loan Agreement.  The Loan is evidenced by a Promissory Note,
dated the date hereof, made by Borrower to Lender in such principal amount
(as the same may be amended, modified, restated, severed, consolidated,
renewed, replaced, or supplemented from time to time, the “Note”).


Borrower is the owner of
the leasehold and fee simple title to certain parcels of real property (the “Premises”) described in Exhibit A
attached hereto, and the buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and other
improvements now or hereafter located thereon (the “Improvements”).


To secure the payment of
the Note and all sums which may or shall become due thereunder or under any of
the other documents evidencing, securing or executed in connection with the
Loan (the Note, this Security Instrument, the Loan Agreement and such other
documents, as any of the same may, from time to time, be modified, amended or
supplemented, being hereinafter collectively referred to as the “Loan Documents” which Loan Documents
are incorporated herein by reference for all purposes), including (i) the
payment of interest and other amounts which would accrue and become due but for
the filing of a petition in bankruptcy (whether or not a claim is allowed
against Borrower for such interest or other amounts in any such bankruptcy
proceeding) or the operation of the automatic stay under Section 362(a) of
Title 11 of the United States Code (the “Bankruptcy Code”),
and (ii) the costs and expenses of enforcing any provision of any Loan Document
(all such sums being hereinafter collectively referred to as the “Debt”), Borrower has given, granted,
bargained, sold, alienated, enfeoffed, conveyed, confirmed, warranted, pledged,
assigned and hypothecated and by these presents does hereby give, grant,
bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, assign and
hypothecate unto Trustee in trust for the benefit of Lender, WITH POWER OF
SALE, the Premises and the Improvements and the following:


(i)            all of Borrower’s right, title and
interest as tenant and otherwise (the “Pitts Leasehold Estate”)
under that certain Lease, dated October 18, 1973, between Richard A. Pitts (“Pitts”), as lessor, and Independence
Square Associates (“ISA”), as lessee, a
memorandum of which was recorded on June 7, 1978, in the Mecklenburg County
Clerk’s Office (the “Clerk’s Office”);
as assigned by those certain Deed and Assignments









 



dated June 30,
1978 between ISA, as assignor, and Metropolitan Life Insurance Company (“Met Life”), CCA Proeprty Company No.
5, Ltd. (“CCA”) and Carlson Properties
Inc. (“Carlson”), as assignee; as
assigned by those certain North Carolina Special Warranty Deeds and Assignments
of Leases and Leasehold Estates, dated July 20, 1978 between Met Life, CCA and
Carlson, as assignor and Independence Venture, as assignee, as amended by that
certain Assignment and Assumption of Ground Leases, dated October 18, 1988,
between Independence Venture, as assignor, and LFCI, Inc. (“LFCI”), PTCI, Inc. (“PTCI”) and S.C.T.F., Inc. (“SCTF”), as assignee; as amended by
that certain Assignment of Ground Leases, dated December 21, 1998, between
LFCI, PTCI and SCTF, as assignor, and HSD/Horton Associates (“HSD”), as assignee; as assigned by
that certain Assignment of Ground Lease dated May 13, 2004 between HSD, as
assignor and Trizec Holdings, LLC, successors in interest to Trizec Holdings,
Inc., as assignee, as amended by that certain Assignment and Assumption of
Ground Lease, dated as of the date hereof, between Trizec Holdings, LLC, as
assignor, and Borrower, as assignee (as the same may hereafter be amended,
restated, supplemented, modified, extended or renewed from time to time, the “Pitts Ground Lease”);


(ii)           all of Borrower’s right, title and
interest as tenant and otherwise (the “Orr Leasehold Estate”)
under that certain Lease (“Orr Lease No. 1”),
dated May 28, 1971, between Orr Corporation (“Orr”),
as lessor, and North Carolina National Bank (“NCNB”),
as lessee; as amended by that certain Lease Assignment Agreement, dated
September 14, 1973, between NCNB, as assignor, and ISA, as assignee, which was
recorded on February 15, 1974, in the Clerk’s Office; and that certain Lease (“Orr Lease No. 2”), dated October 18,
1973, between Orr, as lessor, and ISA, as lessee; Orr Lease No. 1 and Orr Lease
No. 2 having been consolidated by that certain Amendment to and Consolidation
of Lease Agreements, dated May 25, 1976, between Orr, as lessor, and NCNB and
ISA, as lessee, a memorandum of which was recorded on May 26, 1976 in the Clerk’s
Office; as amended by that certain Modification of Lease, dated June 30, 1978,
between Orr and ISA, which was recorded on June 30, 1978 in the Clerk’s Office;
as assigned by those certain Deeds and Assignmetns dated as of June 30, 1978
between ISA, as assignor, and Metropolitan Life Insurance Company (“Met Life”), CCA Property Company No.
5, Ltd. (“CCA”) and Carlson Properties
Inc. (“Carlson”), as assignee, as
assigned by those certain North Carolina Special Warranty Deeds and Assignments
of Leases and Leasehold Estates, each dated as of July 20, 1978 between Met
Life, CCA and Carlson, as assignors and Independence Venture, as assignee, as
amended by that certain Assignment and Assumption of Ground Leases, dated
October 18, 1988, between Independence Venture, as assignor, and LFCI, Inc. (“LFCI”) PTCI, Inc. (“PTCI”) and S.C.T.F., Inc. (“SCTF”), as assignee; as assigned by
that certain Assignment of Ground Leases dated December 21, 1998, between LFCI,
PTCI and SCTF, as assignor, and HSD/Horton Associates (“HSD”),
as assignee; as assigned by that certain Assignment of Ground Lease, dated May
13, 2004, between HSD, as assignor, and Trizec Holdings, LLC, successor in
interest to Trizec Holdings, Inc., as assignee; as amended by that certain
Assignment and Assumption of Ground Lease, dated as of the date hereof, between
Trizec Holdings, LLC, as assignor, and Borrower, as assignee (as the same may
hereafter be amended, restated, supplemented, modified, extended or renewed
from time to time, the “Orr Ground Lease”; the Pitts Ground Lease together with
the Orr Ground Lease, hereinafter, individually and collectively as the context
may require, the “Ground Lease”), demising the
Premises;









 



(iii)          all of Borrower’s interest as owner in
fee simple of the Premises; and


(iv)          any and all after-acquired right,
title and interest of Borrower, its successors and assigns in and to the Pitts
Leasehold Estate, the Orr Leasehold Estate, the Pitts Ground Lease, the Orr
Ground Lease or any other portion of the Premises or the Improvements.


TOGETHER WITH:  all right, title, interest and estate of
Borrower now owned, or hereafter acquired, in and to the following property,
rights, interests and estates (the Premises, the Improvements, and the
property, rights, interests and estates hereinafter described are collectively
referred to herein as the “Property”):


(a)           all easements, rights-of-way, strips
and gores of land, streets, ways, alleys, passages, sewer rights, water, water
courses, water rights and powers, air rights and development rights, rights to
oil, gas, minerals, coal and other substances of any kind or character, and all
estates, rights, titles, interests, privileges, liberties, tenements,
hereditaments and appurtenances of any nature whatsoever, in any way belonging,
relating or pertaining to the Premises and the Improvements; and the reversion
and reversions, remainder and remainders, and all land lying in the bed of any
street, road, highway, alley or avenue, opened, vacated or proposed, in front
of or adjoining the Premises, to the center line thereof; and all the estates,
rights, titles, interests, dower and rights of dower, curtesy and rights of
curtesy, property, possession, claim and demand whatsoever, both at law and in
equity, of Borrower of, in and to the Premises and the Improvements; and every
part and parcel thereof, with the appurtenances thereto;


(b)           all machinery, furniture,
furnishings, equipment, computer software and hardware, fixtures (including all
heating, air conditioning, plumbing, lighting, communications and elevator
fixtures), inventory, materials, supplies and other articles of personal
property and accessions thereof, renewals and replacements thereof and
substitutions therefor, and other property of every kind and nature, tangible
or intangible, owned by Borrower, or in which Borrower has or shall have an
interest, now or hereafter located upon the Premises or the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Premises and the Improvements (hereinafter
collectively referred to as the “Equipment”),
including any leases of, deposits in connection with, and proceeds of any sale
or transfer of any of the foregoing, and the right, title and interest of
Borrower in and to any of the Equipment that may be subject to any “security
interest” as defined in the Uniform Commercial Code, as in effect in the State
where the Property is located (the “UCC”),
superior in lien to the lien of this Security Instrument;


(c)           all awards or payments, including
interest thereon, that may heretofore or hereafter be made with respect to the
Premises or the Improvements, whether from the exercise of the right of eminent
domain or condemnation (including any transfer made in lieu of or in
anticipation of the exercise of such right), or for a change of grade, or for
any other injury to or decrease in the value of the Premises or Improvements;


(d)           all leases and other agreements or
arrangements heretofore or hereafter entered into providing for the use,
enjoyment or occupancy of, or the conduct of any activity upon or in, the
Premises or the Improvements, including any extensions, renewals, modifications
or amendments thereof (hereinafter collectively referred to as the “Leases”) and all rents, rent









 



equivalents, moneys
payable as damages (including payments by reason of the rejection of a Lease in
a Bankruptcy Proceeding or in lieu of rent or rent equivalents), royalties
(including all oil and gas or other mineral royalties and bonuses), income,
fees, receivables, receipts, revenues, deposits (including security, utility
and other deposits), accounts, cash, issues, profits, charges for services
rendered, and other consideration of whatever form or nature received by or
paid to or for the account of or benefit of Borrower or its agents or employees
(other than fees paid under the Management Agreement and salaries paid to
employees) from any and all sources arising from or attributable to the
Premises and the Improvements, including all receivables, customer obligations,
installment payment obligations and other obligations now existing or hereafter
arising or created out of the sale, lease, sublease, license, concession or
other grant of the right of the use and occupancy of the Premises or the
Improvements, or rendering of services by Borrower or any of its agents or
employees, and proceeds, if any, from business interruption or other loss of
income insurance (hereinafter collectively referred to as the “Rents”), together with all proceeds
from the sale or other disposition of the Leases and the right to receive and
apply the Rents to the payment of the Debt;


(e)           all proceeds of and any unearned
premiums on any insurance policies covering the Property (in the case of a
blanket policy of insurance, to the extent allocable to the Property),
including the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Property;


(f)            the right, in the name and on behalf
of Borrower, to appear in and defend any action or proceeding brought with
respect to the Property and to commence any action or proceeding to protect the
interest of Lender in the Property;


(g)           all accounts (including reserve
accounts), escrows, documents, instruments, chattel paper, claims, deposits and
general intangibles, as the foregoing terms are defined in the UCC, and all
franchises, trade names, trademarks, symbols, service marks, books, records,
plans, specifications, designs, drawings, surveys, title insurance policies,
permits, consents, licenses, management agreements, contract rights (including
any contract with any architect or engineer or with any other provider of goods
or services for or in connection with any construction, repair or other work
upon the Property), approvals, actions, refunds of real estate taxes and
assessments (and any other governmental impositions related to the Property)
and causes of action that now or hereafter relate to, are derived from or are
used in connection with the Property, or the use, operation, maintenance,
occupancy or enjoyment thereof or the conduct of any business or activities
thereon (hereinafter collectively referred to as the “Intangibles”);
and


(h)           all proceeds, products, offspring,
rents and profits from any of the foregoing, including those from sale,
exchange, transfer, collection, loss, damage, disposition, substitution or
replacement of any of the foregoing.


Without limiting the
generality of any of the foregoing, in the event that a case under the
Bankruptcy Code is commenced by or against Borrower, pursuant to
Section 552(b)(2) of the Bankruptcy Code, the security interest granted by
this Security Instrument shall automatically extend to all Rents acquired by
the Borrower after the commencement of the case and shall constitute cash
collateral under Section 363(a) of the Bankruptcy Code.









 



TO HAVE AND TO HOLD
the Property unto and to the use and benefit of Lender and its successors and
assigns, forever;


PROVIDED, HOWEVER,
these presents are upon the express condition that, if Borrower shall well and
truly pay to Lender the Debt at the time and in the manner provided in the Loan
Documents and shall well and truly abide by and comply with each and every
covenant and condition set forth in the Loan Documents in a timely manner,
these presents and the estate hereby granted shall cease, terminate and be
void;


AND Borrower represents
and warrants to and covenants and agrees with Lender as follows:


PART I - GENERAL PROVISIONS


1.             Payment of Debt and Incorporation of Covenants Conditions and Agreements.  Borrower shall pay the Debt at the time and
in the manner provided in the Loan Documents. 
All the covenants, conditions and agreements contained in the Loan
Documents are hereby made a part of this Security Instrument to the same extent
and with the same force as if fully set forth herein.  Without limiting the generality of the foregoing,
Borrower (i) agrees to insure, repair, maintain and restore damage to the
Property, escrow and pay Taxes and Other Charges, and comply with Legal
Requirements, in accordance with the Loan Agreement, and (ii) agrees that
the Proceeds of Insurance and Awards for Condemnation shall be settled, held
and applied in accordance with the Loan Agreement.


2.             Leases and Rents.


(a)           Borrower does hereby absolutely and
unconditionally assign to Lender all of Borrower’s right, title and interest in
all current and future Leases and Rents, it being intended by Borrower that
this assignment constitutes a present, absolute assignment and not an
assignment for additional security only. 
Such assignment shall not be construed to bind Lender to the performance
of any of the covenants or provisions contained in any Lease or otherwise
impose any obligation upon Lender. 
Nevertheless, subject to the terms of this paragraph, Lender grants to
Borrower a revocable license to operate and manage the Property and to collect
the Rents subject to the requirements of the Loan Agreement (including the
deposit of Rents into the Clearing Account). 
Upon an Event of Default, without the need for notice or demand, the
license granted to Borrower herein shall automatically be revoked, and Lender
shall immediately be entitled to possession of all Rents in the Clearing
Account, the Deposit Account (including all Subaccounts thereof) and all Rents
collected thereafter (including Rents past due and unpaid), whether or not
Lender enters upon or takes control of the Property.  Borrower hereby grants and assigns to Lender
the right, at its 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 Rents.  Unless
prohibited by applicable law, any Rents collected after the revocation of such
license may be applied toward payment of the Debt in such priority and
proportions as Lender in its sole discretion shall deem proper.


(b)           Borrower shall not enter into, modify,
amend, cancel, terminate or renew any Lease except as provided in Section 5.10
of the Loan Agreement.









 



3.             Use of Property. 
Except as provided in the Loan Agreement, (a) Borrower shall not
initiate, join in, acquiesce in or consent to any change in any private
restrictive covenant, zoning law or other public or private restriction,
limiting or defining the uses which may be made of the Property; (b) if under
applicable zoning provisions the use of the Property is or shall become a
nonconforming use, Borrower shall not cause or permit such nonconforming use to
be discontinued or abandoned without the consent of Lender; and (c) Borrower
shall not (i) change the use of the Property, or (ii) permit or
suffer to occur any waste on or to the Property.


4.             Transfer or Encumbrance of the Property.


(a)           Borrower acknowledges that
(i) Lender has examined and relied on the creditworthiness and experience
of the principals of Borrower in owning and operating properties such as the
Property in agreeing to make the Loan, (ii) Lender will continue to rely
on Borrower’s ownership of the Property as a means of maintaining the value of
the Property as security for the Debt, and (iii) Lender has a valid
interest in maintaining the value of the Property so as to ensure that, should
Borrower default in the repayment of the Debt, Lender can recover the Debt by a
sale of the Property.  Borrower shall not
sell, convey, alienate, mortgage, encumber, pledge or otherwise transfer the
Property or any part thereof, or suffer or permit any Transfer to occur, other
than a Permitted Transfer or as otherwise expressly permitted under the Loan
Documents.


(b)           Lender shall not be required to
demonstrate any actual impairment of its security or any increased risk of
default hereunder in order to declare the Debt immediately due and payable upon
Transfer in violation of this Paragraph 4. 
This provision shall apply to every sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Property (and every other
Transfer) regardless of whether voluntary or not.  Any Transfer made in contravention of this
Paragraph 4 shall be null and void and of no force and effect, to the
fullest extent permitted by law. 
Borrower agrees to bear and shall pay or reimburse Lender on demand for
all reasonable expenses (including reasonable attorneys’ fees and
disbursements, title search costs and title insurance endorsement premiums)
incurred by Lender in connection with the review, approval and documentation of
any Permitted Transfer.


5.             Changes in Laws Regarding Taxation.  If any law is enacted or adopted or amended
after the date of this Security Instrument which deducts the Debt from the
value of the Property for the purpose of taxation or which imposes a tax,
either directly or indirectly, on the Debt or Lender’s interest in the
Property, Borrower will pay such tax, with interest and penalties thereon, if
any.  If Lender is advised by its counsel
that the payment of such tax or interest and penalties by Borrower would be unlawful,
taxable to Lender or unenforceable, or would provide the basis for a defense of
usury, then Lender shall have the option, by notice of not less than 90 days,
to declare the Debt immediately due and payable.


6.             No Credits on Account of the Debt.  Borrower shall not claim or demand or be
entitled to any credit on account of the Debt for any part of the Taxes or
Other Charges assessed against the Property, and no deduction shall otherwise
be made or claimed from the assessed value of the Property for real estate tax
purposes by reason of this Security Instrument or the Debt.  If such claim, credit or deduction shall be
required by law, Lender shall have the option, by notice of not less than 90
days, to declare the Debt immediately due and payable.









 



7.             Further Acts, Etc. 
Borrower shall, at its sole cost, do, execute, acknowledge and deliver
all and every such further acts, deeds, conveyances, mortgages, assignments,
notices of assignment, transfers and assurances as Lender shall, from time to
time, require, for the better assuring, conveying, assigning, transferring, and
confirming unto Lender the property and rights hereby mortgaged, given,
granted, bargained, sold, alienated, enfeoffed, conveyed, confirmed, pledged,
assigned and hypothecated or intended now or hereafter so to be, or which
Borrower may be or may hereafter become bound to convey or assign to Lender, or
for carrying out the intention or facilitating the performance of the terms of
this Security Instrument, or for filing, registering or recording this Security
Instrument or for facilitating the sale and transfer of the Loan and the Loan
Documents in connection with a Secondary Market Transaction as described in
Section 9.1 of the Loan Agreement. 
Upon foreclosure, the appointment of a receiver or any other relevant action,
Borrower shall, at its sole cost, cooperate fully and completely to effect the
assignment or transfer of any license, permit, agreement or any other right
necessary or useful to the operation of the Property.  Borrower grants to Lender an irrevocable
power of attorney coupled with an interest for the purpose of exercising and
perfecting any and all rights and remedies available to Lender at law and in
equity, including such rights and remedies available to Lender pursuant to this
paragraph.  Notwithstanding anything to
the contrary in the immediately preceding sentence, Lender shall not execute
any document as attorney-in-fact of Borrower unless (x)  Borrower shall
have failed or refused to execute the same within five (5) Business Days after
Lender’s request therefor, or (y) in Lender’s good faith determination it
would be materially prejudiced by the delay involved in making such a
request.  Lender shall give prompt notice
to Borrower of any exercise of the power of attorney as provided for in this Paragraph
7, along with copies of all documents executed in connection therewith.


8.             Recording of Security Instrument, Etc.  Borrower forthwith upon the execution and
delivery of this Security Instrument and thereafter, from time to time, shall
cause this Security Instrument, and any security instrument creating a lien or
security interest or evidencing the lien hereof upon the Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect the lien or security interest
hereof upon, and the interest of Lender in, the Property.  Borrower shall pay all filing, registration
or recording fees, all expenses incident to the preparation, execution and
acknowledgment of and all federal, state, county and municipal, taxes, duties,
imposts, documentary stamps, assessments and charges arising out of or in
connection with the execution and delivery of, this Security Instrument, any
Security Instrument supplemental hereto, any security instrument with respect
to the Property or any instrument of further assurance, except where prohibited
by law so to do.  Borrower shall hold
harmless and indemnify Lender, its successors and assigns, against any
liability incurred by reason of the imposition of any tax on the making or
recording of this Security Instrument.


9.             Right to Cure Defaults. 
Upon the occurrence of any Event of Default, Lender may, but without any
obligation to do so and without notice to or demand on Borrower and without
releasing Borrower from any obligation hereunder, perform the obligations in
Default in such manner and to such extent as Lender may deem necessary to
protect the security hereof.  Lender is
authorized to enter upon the Property for such purposes or appear in, defend or
bring any action or proceeding to protect its interest in the Property or to
foreclose this Security Instrument or collect the Debt, and the cost and
expense thereof (including reasonable attorneys’









 



fees and disbursements to the extent
permitted by law), with interest thereon at the Default Rate for the period
after notice from Lender that such cost or expense was incurred to the date of
payment to Lender, shall constitute a portion of the Debt, shall be secured by
this Security Instrument and the other Loan Documents and shall be due and
payable to Lender upon demand.


10.           Remedies.


(a)           Upon the occurrence of any Event of
Default, Lender may take such action, without notice or demand, as it deems
advisable to protect and enforce its rights against Borrower and in and to the
Property, by Lender itself or otherwise, including the following actions, each
of which may be pursued concurrently or otherwise, at such time and in such
order as Lender may determine, in its sole discretion, without impairing or
otherwise affecting the other rights and remedies of Lender:


(i)            declare
the entire Debt to be immediately due and payable;


(ii)           give
such notice of default and of election to cause the Trust Property to be sold
as may be required by law or as may be necessary to cause Beneficiary to
exercise the power of sale granted herein; Beneficiary shall then record and
give such notice of Beneficiary’s sale as then required by law and, after the
expiration of such time as may be required by law, may sell the Trust Property
at the time and place specified in the notice of sale, as a whole or in
separate parcels as directed by Beneficiary, or by Trustor to the extent
required by law, at public auction to the highest bidder for cash in lawful
money of the United States, payable at time of sale, all in accordance with
applicable law.  Beneficiary, from time
to time, may postpone or continue the sale of all or any portion of the Trust
Property by public declaration at the time and place last appointed for the
sale and no other notice of the postponed sale shall be required unless
provided by applicable law.  Upon any
sale, Beneficiary shall deliver its deed conveying the property sold, without
any covenant or warranty, expressed or implied, to the purchaser or purchasers
at the sale.  The recitals in such deed
of any matters or facts shall be conclusive as to the accuracy thereof;


(iii)          institute
a proceeding or proceedings, judicial or nonjudicial, to the extent permitted
by law, by advertisement, by action or otherwise, for the complete foreclosure
of this Security Instrument, in which case the Property may be sold for cash or
upon credit in one or more parcels or in several interests or portions and in
any order or manner;


(iv)          with
or without entry, to the extent permitted and pursuant to the procedures
provided by applicable law, institute proceedings for the partial foreclosure
of this Security Instrument for the portion of the Debt then due and payable, subject
to the continuing lien of this Security Instrument for the balance of the Debt
not then due;


(v)           sell
for cash or upon credit the Property and all estate, claim, demand, right,
title and interest of Borrower therein and rights of redemption thereof,
pursuant to the power of sale, to the extent permitted by law, or









 



otherwise, at one or more sales, as an entirety or in parcels, at such
time and place, upon such terms and after such notice thereof as may be
required or permitted by law;


(vi)          institute
an action, suit or proceeding in equity for the specific performance of any
covenant, condition or agreement contained herein or in any other Loan
Document;


(vii)         recover
judgment on the Note either before, during or after any proceeding for the
enforcement of this Security Instrument;


(viii)        apply
for the ex-parte appointment of a trustee, receiver, liquidator or conservator
of the Property, without notice and without regard for the adequacy of the
security for the Debt and without regard for the solvency of the Borrower or of
any person, firm or other entity liable for the payment of the Debt;


(ix)           enforce
Lender’s interest in the Leases and Rents and enter into or upon the Property,
either personally or by its agents, nominees or attorneys and dispossess Borrower
and its agents and employees therefrom, and thereupon Lender may (A) use,
operate, manage, control, insure, maintain, repair, restore and otherwise deal
with the Property and conduct the business thereat; (B) complete any
construction on the Property in such manner and form as Lender deems advisable;
(C) make alterations, additions, renewals, replacements and improvements to or
on the Property; (D) exercise all rights and powers of Borrower with
respect to the Property, whether in the name of Borrower or otherwise,
including the right to make, cancel, enforce or modify Leases, obtain and evict
tenants, and demand, sue for, collect and receive Rents; and (E) unless
prohibited by applicable law, apply the receipts from the Property to the
payment of the Debt, after deducting therefrom all expenses (including
reasonable attorneys’ fees and disbursements) incurred in connection with the
aforesaid operations and all amounts necessary to pay the Taxes, insurance and
other charges in connection with the Property, as well as just and reasonable
compensation for the services of Lender, and its counsel, agents and employees;


(x)            require
Borrower to pay monthly in advance to Lender, or any receiver appointed to
collect the Rents, the fair and reasonable rental value for the use and
occupation of any portion of the Property occupied by Borrower, and require
Borrower to vacate and surrender possession of the Property to Lender or to
such receiver, and, in default thereof, evict Borrower by summary proceedings
or otherwise; or


(xi)           pursue
such other rights and remedies as may be available at law or in equity or under
the UCC, including the right to receive and/or establish a lock box for all
Rents and proceeds from the Intangibles and any other receivables or rights to
payments of Borrower relating to the Property.


In the event of a
sale, by foreclosure or otherwise, of less than all of the Property, this
Security Instrument shall continue as a lien on the remaining portion of the
Property.









 



(b)           The proceeds of any sale made under
or by virtue of this Paragraph 10, together with any other sums which then
may be held by Lender under this Security Instrument, whether under the
provisions of this paragraph or otherwise, shall be applied by Lender to the
payment of the Debt in such priority and proportion as Lender in its sole
discretion shall deem proper.


(c)           To the extent permitted by law,
Lender may adjourn from time to time any sale by it to be made under or by
virtue of this Security Instrument by announcement at the time and place
appointed for such sale or for such adjourned sale or sales; and, except as
otherwise provided by any applicable law, Lender, without further notice or
publication, may make such sale at the time and place to which the same shall
be so adjourned.


(d)           Upon the completion of any sale or
sales pursuant hereto, Lender, or an officer of any court empowered to do so,
shall execute and deliver to the accepted purchaser or purchasers a good and
sufficient instrument, or good and sufficient instruments, conveying, assigning
and transferring all estate, right, title and interest in and to the property
and rights sold.  Beneficiary is hereby
irrevocably appointed the true and lawful attorney of Trustor, in its name and
stead, to make all necessary conveyances, assignments, transfers and deliveries
of the Trust Property and rights so sold and for that purpose Beneficiary may
execute all necessary instruments of conveyance, assignment and transfer, and
may substitute one or more persons with like power, Trustor hereby ratifying
and confirming all that its said attorney or such substitute or substitutes
shall lawfully do by virtue hereof.  Any
sale or sales made under or by virtue of this Paragraph 10, whether made under
the power of sale herein granted or under or by virtue of judicial proceedings
or of a judgment or decree of foreclosure and sale, shall operate to divest all
the estate, right, title, interest, claim and demand whatsoever, whether at law
or in equity, of Borrower in and to the properties and rights so sold, and
shall be a perpetual bar both at law and in equity against Borrower and against
any and all persons claiming or who may claim the same, or any part thereof,
from, through or under Borrower, subject only to such redemption rights as are
required by law.


(e)           To the extent permitted by law, upon
any sale made under or by virtue of this Paragraph 10, whether made under
a power of sale or under or by virtue of judicial proceedings or of a judgment
or decree of foreclosure and sale, Lender may bid for and acquire the Property
or any part thereof and in lieu of paying cash therefor may make settlement for
the purchase price by crediting upon the Debt the net sales price after
deducting therefrom the expenses of the sale and costs of the action and any
other sums which Lender is authorized to deduct under this Security Instrument
or any other Loan Document.


(f)            No recovery of any judgment by
Lender and no levy of an execution under any judgment upon the Property or upon
any other property of Borrower shall affect in any manner or to any extent the
lien of this Security Instrument upon the Property or any part thereof, or any
liens, rights, powers or remedies of Lender hereunder, but such liens, rights,
powers and remedies of Lender shall continue unimpaired as before.


(g)           To the extent permitted by law,
Lender may terminate or rescind any proceeding or other action brought in
connection with its exercise of the remedies provided in this Paragraph 10
at any time before the conclusion thereof, as determined in Lender’s sole
discretion and without prejudice to Lender.









 



(h)           Lender may resort to any remedies and
the security given by this Security Instrument or in any other Loan Document in
whole or in part, and in such portions and in such order as determined by
Lender’s sole discretion.  No such action
shall in any way be considered a waiver of any rights, benefits or remedies
evidenced or provided by any Loan Document. 
The failure of Lender to exercise any right, remedy or option provided
in any Loan Document shall not be deemed a waiver of such right, remedy or
option or of any covenant or obligation secured by any Loan Document.  No acceptance by Lender of any payment after
the occurrence of any Event of Default and no payment by Lender of any obligation
for which Borrower is liable hereunder shall be deemed to waive or cure any
Event of Default, or Borrower’s liability to pay such obligation.  No sale of all or any portion of the
Property, no forbearance on the part of Lender, and no extension of time for
the payment of the whole or any portion of the Debt or any other indulgence
given by Lender to Borrower, shall operate to release or in any manner affect
the interest of Lender in the remaining Property or the liability of Borrower
to pay the Debt.  No waiver by Lender
shall be effective unless it is in writing and then only to the extent
specifically stated.  All costs and
expenses of Lender in exercising its rights and remedies under this
Paragraph 10 (including reasonable attorneys’ fees and disbursements to
the extent permitted by law), shall be paid by Borrower immediately upon notice
from Lender, with interest at the Default Rate for the period after notice from
Lender, and such costs and expenses shall constitute a portion of the Debt and
shall be secured by this Security Instrument.


(i)            The interests and rights of Lender
under the Loan Documents shall not be impaired by any indulgence, including (i)
any renewal, extension or modification which Lender may grant with respect to
any of the Debt, (ii) any surrender, compromise, release, renewal, extension,
exchange or substitution which Lender may grant with respect to the Property or
any portion thereof or (iii) any release or indulgence granted to any maker,
endorser, guarantor or surety of any of the Debt.


11.           Right
of Entry.  In addition to
any other rights or remedies granted under this Security Instrument, Lender and
its agents shall have the right to enter and inspect the Property at any
reasonable time during the term of this Security Instrument.  The cost of such inspections or audits shall
be borne by Borrower should Lender determine that an Event of Default exists,
including the cost of all follow up or additional investigations or inquiries
deemed reasonably necessary by Lender. 
The cost of such inspections, if not paid for by Borrower following
demand, may be added to the principal balance of the sums due under the Note
and this Security Instrument and shall bear interest thereafter until paid at
the Default Rate.


12.           Security
Agreement.


(a)           This Security Instrument is both a
real property deed of trust and a “security agreement” within the meaning of
the UCC.  The Property includes both real
and personal property and all other rights and interests, whether tangible or
intangible in nature, of Borrower in the Property.  Borrower by executing and delivering this
Security Instrument has granted and hereby grants to Lender, as security for
the Debt, a security interest in the Property to the full extent that the
Property may be subject to the UCC (such portion of the Property so subject to
the UCC being called in this paragraph the “Collateral”). 
This Security Instrument shall also constitute a “fixture filing” for
the purposes of the UCC and is to be filed for record in the real estate
records where any part of the Property (including said fixtures) is
situated.  As such, this Security
Instrument covers all items of the Collateral that are or are to become
fixtures.
















Information concerning the security interest
herein granted may be obtained from the parties at the addresses of the parties
set forth in the first paragraph of this Security Instrument.  If an Event of Default shall occur, Lender,
in addition to any other rights and remedies which it may have, shall have and
may exercise immediately and without demand, any and all rights and remedies
granted to a secured party upon default under the UCC, including, without
limiting the generality of the foregoing, the right to take possession of the
Collateral or any part thereof, and to take such other measures as Lender may
deem necessary for the care, protection and preservation of the
Collateral.  Upon request or demand of
Lender, Borrower shall at its expense assemble the Collateral and make it
available to Lender at a convenient place acceptable to Lender.  Borrower shall pay to Lender on demand any
and all expenses, including reasonable attorneys’ fees and disbursements,
incurred or paid by Lender in protecting the interest in the Collateral and in
enforcing the rights hereunder with respect to the Collateral.  Any notice of sale, disposition or other
intended action by Lender with respect to the Collateral, sent to Borrower in accordance
with the provisions hereof at least ten days prior to such action, shall
constitute commercially reasonable notice to Borrower.  The proceeds of any disposition of the
Collateral, or any part thereof, may be applied by Lender to the payment of the
Debt in such priority and proportions as Lender in its sole discretion shall
deem proper.  In the event of any change
in name, identity or structure of Borrower, Borrower shall notify Lender
thereof and promptly after request shall execute, file and record such UCC
forms as are necessary to maintain the priority of Lender’s lien upon and
security interest in the Collateral, and shall pay all expenses and fees in
connection with the filing and recording thereof.  If Lender shall require the filing or
recording of additional UCC forms or continuation statements, Borrower shall,
promptly after request, execute, file and record such UCC forms or continuation
statements as Lender shall deem necessary, and shall pay all expenses and fees
in connection with the filing and recording thereof, it being understood and
agreed, however, that no such additional documents shall increase Borrower’s
obligations under the Loan Documents. 
Borrower hereby irrevocably appoints Lender as its attorney-in-fact,
coupled with an interest, to file with the appropriate public office on its
behalf any financing or other statements signed only by Lender, as secured
party, in connection with the Collateral covered by this Security Instrument.


13.           Actions
and Proceedings.  Lender
has the right to appear in and defend any action or proceeding brought with
respect to the Property and to bring any action or proceeding, in the name and
on behalf of Borrower, which Lender, in its sole discretion, decides should be
brought to protect its or their interest in the Property.  Lender shall, at its option, be subrogated to
the lien of any mortgage, deed of trust or other security instrument discharged
in whole or in part by the Debt, and any such subrogation rights shall
constitute additional security for the payment of the Debt.


14.           Marshalling
and Other Matters. 
Borrower hereby waives, to the extent permitted by law, the benefit of
all homestead, appraisement, valuation, stay, extension, reinstatement and
redemption laws now or hereafter in force and all rights of marshalling in the
event of any sale hereunder of the Property or any part thereof or any interest
therein.  Further, Borrower hereby
expressly waives any and all rights of redemption from sale under any order or
decree of foreclosure of this Security Instrument on behalf of Borrower, and on
behalf of each and every person acquiring any interest in or title to the
Property subsequent to the date of this Security Instrument and on behalf of
all persons to the extent permitted by applicable law.  The lien of this Security Instrument shall be
absolute and unconditional and shall not in any manner be affected or impaired
by any acts or omissions whatsoever of Lender and, without limiting the









 



generality of the foregoing, the lien hereof
shall not be impaired by (i) any acceptance by Lender of any other security for
any portion of the Debt, (ii) any failure, neglect or omission on the part of
Lender to realize upon or protect any portion of the Debt or any collateral
security therefor or (iii) any release (except as to the property released),
sale, pledge, surrender, compromise, settlement, renewal, extension,
indulgence, alteration, changing, modification or disposition of any portion of
the Debt or of any of the collateral security therefor; and Lender may
foreclose, or exercise any other remedy available to Lender under other Loan
Documents without first exercising or enforcing any of its remedies under this
Security Instrument, and any exercise of the rights and remedies of Lender
hereunder shall not in any manner impair the Debt or the liens of any other
Loan Document or any of Lender’s rights and remedies thereunder.


15.           Notices.  All notices, consents, approvals and requests
required or permitted hereunder shall be in writing, and shall be sent, and
shall be deemed effective, as provided in the Loan Agreement.


16.           Inapplicable
Provisions.  If any term,
covenant or condition of this Security Instrument is held to be invalid,
illegal or unenforceable in any respect, this Security Instrument shall be
construed without such provision.


17.           Headings.  The paragraph headings in this Security
Instrument are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.


18.           Duplicate
Originals.  This Security
Instrument may be executed in any number of duplicate originals and each such
duplicate original shall be deemed to be an original.


19.           Definitions.  Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Security Instrument may be used interchangeably in singular or plural
form; and the word “Borrower”
shall mean “each Borrower and any subsequent owner or owners of a fee interest
in the Property or any part thereof, or any subsequent owner or owners of a
leasehold interest under each Ground Lease, the word “Lender” shall mean “Lender
and any subsequent holder of the Note,” the words “Property” shall
include any portion of the Property and any interest therein, the word “including” means “including
but not limited to” and the words “attorneys’ fees” shall include any and all
attorneys’ fees, paralegal and law clerk fees, including fees at the pre-trial,
trial and appellate levels incurred or paid by Lender in protecting its
interest in the Property and Collateral and enforcing its rights hereunder.


20.           Homestead.  Borrower hereby waives and renounces all
homestead and exemption rights provided by the Constitution and the laws of the
United States and of any state, in and to the Property as against the
collection of the Debt, or any part thereof.


21.           Assignments.  Lender shall have the right to assign or
transfer its rights under this Security Instrument in connection with any
transfer of its interest in the Loan, or any portion thereof, in accordance
with the Loan Agreement.  Any assignee or
transferee shall be entitled to all the benefits afforded Lender under this
Security Instrument.


22.           Waiver
of Jury Trial.  BORROWER AND
BY ITS FUNDING OF THE LOAN, LENDER, HEREBY AGREE NOT TO ELECT A TRIAL BY JURY
OF









 



ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE
ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS SECURITY INSTRUMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH.  THIS WAIVER OF RIGHT TO TRIAL
BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. 
EITHER PARTY HERETO IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.


23.           Consents.  Any consent or approval by Lender in any
single instance shall not be deemed or construed to be Lender’s consent or
approval in any like matter arising at a subsequent date, and the failure of
Lender to promptly exercise any right, power, remedy, consent or approval
provided herein or at law or in equity shall not constitute or be construed as
a waiver of the same nor shall Lender be estopped from exercising such right,
power, remedy, consent or approval at a later date.  Any consent or approval requested of and
granted by Lender pursuant hereto shall be narrowly construed to be applicable
only to Borrower and the matter identified in such consent or approval and no
third party shall claim any benefit by reason thereof, and any such consent or
approval shall not be deemed to constitute Lender a venturer or partner with
Borrower nor shall privity of contract be presumed to have been established
with any such third party.  If Lender
deems it to be in its best interest to retain assistance of persons, firms or
corporations (including attorneys, title insurance companies, appraisers,
engineers and surveyors) with respect to a request for consent or approval,
Borrower shall reimburse Lender for all costs reasonably incurred in connection
with the employment of such persons, firms or corporations.


24.           Employee
Benefit Plan.  During the
term of this Security Instrument, unless Lender shall have previously consented
in writing, (i) Borrower shall take no action that would cause it to become an “employee
benefit plan” as defined in 29 C.F.R. Section 2510.3-101, or “assets of a
governmental plan” subject to regulation under the state statutes, and
(ii) Borrower shall not sell, assign or transfer the Property, or any
portion thereof or interest therein, to any transferee that does not execute
and deliver to Lender its written assumption of the obligations of this
covenant.  Borrower shall protect,
defend, indemnify and hold Lender harmless from and against all loss, cost,
damage and expense (including all attorneys’ fees, excise taxes and costs of
correcting any prohibited transaction or obtaining an appropriate exemption)
that Lender may incur as a result of Borrower’s breach of this covenant.  This covenant and indemnity shall survive the
extinguishment of the lien of this Security Instrument by foreclosure or action
in lieu thereof; furthermore, the foregoing indemnity shall supersede any
limitations on Borrower’s liability under any of the Loan Documents.


25.           Loan
Repayment and Defeasance. 
The lien of this Security Instrument shall be terminated, released and
reconveyed of record by Lender prior to the Maturity Date only in accordance
with the terms and provisions set forth in the Loan Agreement.









 



26.           Governing
Law.  This Security
Instrument shall be governed by, and be construed in accordance with, the laws
of the state in which the Property is located without regard to conflict of law
provisions thereof.


27.           Exculpation.  The liability of Borrower hereunder is
limited pursuant to Section 10.1 of the Loan Agreement.


28.           Counterparts.  This Security Instrument may be executed in
any number of counterparts, each of which when so executed and delivered shall
be an original, but all of which shall together constitute one and the same
instrument.


29.           Joint
and Several.  Each Person
constituting Borrower hereunder shall have joint and several liability for the
obligations of Borrower hereunder except as otherwise provided in the Loan
Documents.


30.           Trustee;
Successor Trustee. 
Trustee shall not be liable for any error of judgment or act done by
Trustee, or be otherwise responsible or accountable under any circumstances
whatsoever, except if the result of Trustee’s gross negligence or willful
misconduct.  Trustee shall not be
personally liable in case of entry by him or anyone acting by virtue of the
powers herein granted him upon the Trust Property for debts contracted or
liability or damages or damages incurred in the management or operation of the
Trust Property.  Trustee shall have the
right to rely on any instrument, document or signature authorizing or
supporting any action taken or proposed to be taken by him hereunder or
believed by him to be genuine.  Trustee
shall be entitled to reimbursement for actual expenses incurred by him in the
performance of his duties hereunder and to reasonable compensation for such of
his services hereunder as shall be rendered. 
Trustor will, from time to time, reimburse Trustee for and save and hold
him harmless from and against any and all loss, cost, liability, damage and
reasonable expense whatsoever incurred by him in the performance of his duties.  All monies received by Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated in any manner from any other
monies (except to the extent required by law) and Trustee shall be under no
liability for interest on any monies received by him hereunder.  Trustee may resign by giving of notice of
such resignation in writing to Beneficiary. 
If Trustee shall die, resign or become disqualified from acting in the
execution of this trust or shall fail or refuse to exercise the same when
requested by Beneficiary or if for any or no reason and without cause
Beneficiary shall prefer to appoint a substitute trustee to act instead of the
original Trustee named herein, or any prior successor or substitute trustee, Beneficiary
shall, without any formality or notice to Trustor or any other person, have
full power to appoint a substitute trustee and, if Beneficiary so elects,
several substitute trustees in succession who shall succeed to all the estate,
rights, powers and duties of the aforenamed Trustee.  Each appointment and substitution shall be
evidenced by an instrument in writing which shall recite the parties to, and
the book and page of record of, this Security Instrument, and the description
of the real property herein described, which instrument, executed and
acknowledged by Beneficiary, shall (i) be conclusive proof of the proper
substitution and appointment of such successor Trustee or Trustees, (ii) duly
assign and transfer all the estates, properties, rights, powers and trusts of
Trustee so ceasing to act and (iii) be notice of such proper substitution and
appointment to all parties in interest. 
In addition, such Trustee ceasing to act shall duly assign, transfer,
and deliver any of the property and monies held by Trustee to the successor
Trustee so appointed in its or his place. 
The Trustee may act in the execution of this









 



trust and may authorize one or more parties
to act on his behalf to perform the ministerial functions required of him
hereunder, including without limitation, the transmittal and posting of any
notices and it shall not be necessary for any Trustee to be present in person
at any foreclosure sale.


PART II - North Carolina Provisions


31.           Inconsistencies.  In the event of any inconsistencies between
the terms and conditions of this Part II and the other provisions of this
Security Instrument, the terms and conditions of this Part II shall control and
be binding.


32.           The following language shall be added
immediately prior to the first sentence of the paragraph beginning “To secure
the payment of the Note and all sums which may or shall become due thereunder”::  “IN CONSIDERATION OF $1.00 AND OTHER GOOD AND
SUFFICIENT CONSIDERATION,”.


33.           Conditions
to Grant.  The words “TO HAVE AND TO HOLD the Property unto and
to the use and benefit of Lender and its successors and assigns, forever” are
hereby deleted and the following words are substituted therefore:


“TO HAVE AND
TO HOLD, the above granted and described Property unto Trustee in
fee simple forever,”


34.           The following words are hereby added
immediately after the words “these presents and the estate hereby granted shall
cease, terminate and be void” at the end of the paragraph beginning “PROVIDED,
HOWEVER, these presents are upon the express condition that,”:


and may be canceled of
record at the request and at the cost of Borrower.  In addition to all other methods of
cancellation afforded by law, Borrower shall be entitled to have this Security
Instrument cancelled of record upon presentation of this Security Instrument
marked “Paid and Satisfied” by Trustee and/or Lender to the Register of Deeds
of the county in which the Property is located.


35.           Conditions
to Grant.  The following
paragraphs are hereby added immediately following the paragraph beginning “PROVIDED,
HOWEVER, these presents are upon the express condition that,” as new
paragraphs:


To the extent that any of
the above granted and described Property is not real property that the Trustee
is empowered to sell at a public sale pursuant to N.C. Gen. Stat. § 45-21.1 et
seq., or is not real property that could be sold at a public sale pursuant
to a judicial proceeding to foreclose the lien of this Security Instrument,
such Property will automatically be deemed to have been assigned and conveyed
to the Lender and a security interest granted to Lender in such Property,
effective as of the date of this Security Instrument.









 



THIS CONVEYANCE IS MADE
UPON THIS SPECIAL TRUST, that if Borrower shall pay the sums due under the Note
and Loan Agreement in accordance with its terms and shall comply with all the
covenants, terms and conditions of this Security Instrument and the Loan
Agreement, this conveyance shall be null and void and may be canceled of record
at the request and at the cost of Borrower.


36.           Waiver
of Release.  Borrower
hereby waives and releases any rights Borrower may have with regard to release
of liability or obligations of Borrower pursuant to N.C. Gen. Stat. §45-45.1.


37.           The words “any and all” are hereby
deleted from Section 19 of this Security Instrument entitled “Definitions”.


38.           Fixture
Filing.  This Security
Instrument shall constitute a financing statement filed as a fixture filing in
accordance with N.C. Gen. Stat. § 25-9-502 (or any amendment thereto).  For purposes of complying with the
requirements of N.C. Gen. Stat. § 25-9-502, the name of Borrower, as Debtor,
and Lender, as Secured Party, and the respective addresses of Borrower, as
Debtor, and Lender, as Secured Party, are set forth on the first page of this
Security Instrument; the types or items of collateral are described in the
definition of “Equipment” appearing in the paragraph of this Security
Instrument beginning “(b) all machinery, furniture, furnishings,”; and the
description of the land is set forth on Exhibit A attached hereto.  The collateral is or includes fixtures.


39.           Power
of Sale.  Upon the
occurrence of and during the continuation of an Event of Default, on the
application of Lender, it shall be lawful for and the duty of Trustee, and he
is hereby authorized and empowered to expose to sale and to sell the
hereinbefore described premises at public auction for cash, after having first
complied with all applicable requirements of North Carolina law with respect to
the exercise of powers of sale in deeds of trust, and upon such sale Trustee
shall convey title to the purchaser in fee simple.  Trustee shall apply the proceeds of such sale
first, to the payment of all costs and expenses of the sale, including Trustee’s
commission, if any, and a reasonable auctioneer’s fee if such expense has been
incurred; second, to the payment of taxes due and unpaid on the Property sold,
as provided by N.C. Gen. Stat. 
§45-21.31, unless the notice of sale provided that the Property be sold
subject to taxes thereon and the Property was so sold; third, to the payment of
special assessments, or any installments thereof, against the Property sold,
which are due and unpaid, as provided by N.C. Gen. Stat. §45-21.31, unless the
notice of sale provided that the Property be sold subject to special
assessments thereon and the Property was so sold; fourth, to the payment of the
Obligations secured by this Security Instrument; and the balance, if any, shall
be paid to any person or persons legally entitled thereto.  Borrower agrees that in the event of a sale
hereunder, Lender shall have the right to bid thereat.  Trustee may require the successful bidder at
any sale to deposit immediately with Trustee cash or certified check in an
amount not to exceed ten percent (10%) of his bid, provided notice of such
requirement is contained in the advertisement of the sale.  The bid may be rejected if the deposit is not
immediately made and thereupon the next highest bidder may be declared to be
the purchaser.  Such deposit shall be
refunded in case a resale is had; otherwise, it shall be applied to the
purchase price.  Pursuant to N.C. Gen.
Stat. § 25-9-604, Trustee is expressly authorized and empowered to expose to
sale and sell, together









 



with the real estate, any portion of the
Property which constitutes personal property. 
If personal property is sold hereunder, it need not be at the place of
sale; but the published notice shall state the time when and place where such
property may be inspected before sale.


The Property may be sold
in such parcels or lots without regard to principles of marshalling and may be
sold at one sale or in multiple sales, all as determined by Trustee.  A previous exercise of the power of sale
hereunder by Trustee shall not be deemed to extinguish the power of sale, which
power of sale shall continue in full force and effect until all the Property
shall have been finally sold and properly conveyed to the purchasers at the
sale.


40.           Attorneys’
Fees.  Notwithstanding any
provisions in this Security Instrument or any of the other Loan Documents to
the contrary, the obligation of Borrower to reimburse Lender, or Trustee for
attorneys’ fees under the Loan Documents shall be limited to reasonable
attorneys’ fees, notwithstanding the provisions of N.C. Gen. Stat. §6-21.2.


41.           Regarding
The Trustee.  Substitution of the Trustee is
permitted under this Security Instrument.


42.           Time
is of the Essence.  Time is of the essence with respect to
this Security Instrument.


43.           Future
Advances.  This Security
Instrument is given to secure not only the Debt, but also future advances of
the obligations made within fifteen (15) years of the date of this Security
Instrument to the same extent as if such future advances are made on the date
of the execution of this Security Instrument. 
The principal amount (including future advances) that may be so secured
may decrease or increase from time to time, but the total amount so secured at
any one time shall not exceed the maximum principal amount of $150,000,000.00,
plus all interest, costs, reimbursements, fees and expenses due under this
Security Instrument and secured hereby. 
Borrower shall not execute any document that impairs or otherwise
impacts the priority of any future advances secured by this Security
Instrument.  The amount of present
obligations secured hereby is $150,000,000.00.  Disbursements secured hereby shall not be
required to be evidenced by a “written instrument or notation” as described in
N.C. Gen. Stat. §45-68(2), it being the intent of the parties that the
requirements of Section 45-68(2) for a “written instrument or notation” for
each advance shall not be applicable to disbursements made under the Loan
Agreement and the Note.


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IN WITNESS
WHEREOF, THIS SECURITY INSTRUMENT has been executed by Borrower the day and
year first above written.


	
  

  	
  BEHRINGER
  HARVARD 101 SOUTH TRYON LP, a

  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Gerald J.
  Reihsen, III, Secretary

  



 









 



STATE of                                           


COUNTY of                                           


I certify that the
following person(s) personally appeared before me this day, and


(check
one of the following)


I
have personal knowledge of the identity of the principal(s); or


I
have seen satisfactory evidence of the principal’s identity, by a current state
or federal identification with the principal’s photograph in the form of

(check one of the following)


a driver’s
license, or


in the form of                                                 ;
or


a credible witness (i)
personally known to me, (ii) unaffected by this instrument and the transaction
to which it relates and (iii) who personally knows such principal(s), has sworn
to the identity of the principal(s).


Each acknowledging
to me that he or she voluntarily signed the foregoing document for the purpose
stated therein and in the capacity indicated: insert
principal(s) names(s) and title(s)  below


                                                as
                                                
of                                                 .


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
  Notary Public

  
	
  (Official Seal)

  	
  Printed Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  My commission
  expires:

  	
   

  
						










 



EXHIBIT A


(Legal Description)