Exhibit
10.4


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 AN
ASSIGNMENT OF LEASES AND RENTS


BEHRINGER HARVARD 101 SOUTH TRYON LP, as assignor

(Assignor)


To


CITIGROUP
GLOBAL MARKETS REALTY CORP., as assignee

(Assignee)


ASSIGNMENT
OF LEASES AND RENTS


	
  

  	
   

  	
  Dated:

  	
   

  	
  As of October 26, 2006

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Location:

  	
   

  	
  101 South Tryon Street

  
	
   

  	
   

  	
   

  	
   

  	
  Charlotte, North Carolina 28280

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  File No.:

  	
   

  	
  20655-00010

  



 















 


THIS
ASSIGNMENT OF LEASES AND RENTS (this “Assignment”)
dated and effective as of the 26th day of October, 2006 made by BEHRINGER HARVARD 101 SOUTH TRYON
LP, a Delaware
limited partnership, having an office at 15601 Dallas Parkway, Suite
600, Addison, Texas 75001 (“Assignor”)
to CITIGROUP GLOBAL MARKETS REALTY CORP.,
a New York corporation, having an address at 388 Greenwich Street, Floor 11,
New York, New York 10013 (together with its successors and assigns, hereinafter
referred to as “Assignee”).


W  I  T  N  E
S  S  E  T  H :


WHEREAS, Assignor is the
(i) owner of a leasehold and fee simple title to that certain parcel of real
property (the “Premises”) described in Exhibit
A attached hereto, together with the buildings, structures, fixtures,
additions, enlargements, extensions, modifications, repairs, replacements and
other improvements now or hereafter located thereon (collectively, the “Property”);


WHEREAS, Assignor and
Assignee have entered into a certain 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 Assignee has agreed to make a secured loan to Assignor in the maximum
principal amount of up to ONE HUNDRED FIFTY-MILLION AND 00/100 DOLLARS
($150,000,000.00) (the “Loan”);


WHEREAS, Assignor has
executed a note in such principal amount (as the same may be amended, modified,
restated, severed, consolidated, renewed, replaced, or supplemented from time
to time, the “Note”), which is secured by, inter  alia, that certain deed
of trust, assignment of leases and rents and security agreement (as amended
from time to time, the “Security Instrument”,
the Security Instrument, the Note, this Assignment and 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) on the Property;


WHEREAS, it is a
condition to the obligation of Assignee to make the Loan to Assignor pursuant
to the Loan Agreement that Assignor execute and deliver this Assignment; and


WHEREAS, capitalized
terms used in this Assignment without definition have the respective meanings
assigned to such terms in the Loan Agreement or the Security Instrument, as the
case may be, the terms of each of which are specifically incorporated by
reference herein.


NOW, THEREFORE, for good
and valuable consideration, receipt of which by the parties hereto is hereby
acknowledged, and additionally for the purpose of additionally securing the
Debt, Assignor hereby assigns, transfers, conveys and sets over unto Assignee,
all right, title and interest of Assignor in and to all Leases and all Rents;


TO HAVE AND TO HOLD the
same unto Assignee, and its successors and assigns forever, upon the terms and
conditions and for the uses hereinafter set forth.









 



And
Assignor hereby further agrees as follows:


1.             Certain
Representations, Warranties and Covenants. 
Subject to the terms of the Loan Agreement, Assignor represents,
warrants and covenants to Assignee that:


(a)           The payment of the Rents to accrue
under any Lease will not be waived, released, reduced, discounted or otherwise
discharged or compromised by Assignor;


(b)           Assignor has not performed, and will
not perform, any acts, and has not executed, and will not execute, any
instrument that would prevent Assignee from exercising its rights under this
Assignment; and


(c)           Assignor hereby authorizes and
directs any tenant under any of the Leases and any successor to all or any part
of the interests of any such tenant to pay directly to the Clearing Account, in
accordance with the terms of the Loan Agreement, the Rents due and to become
due under such tenant’s Lease, and such authorization and direction shall be
sufficient warrant to the tenant to make future payments of Rents directly to
the Clearing Account in accordance with the terms of the Loan Agreement without
the necessity for further consent by Assignor.


2.             Assignment;
Deferred Exercise of Rights.


(a)           As part of the consideration for the
Debt, Assignor does hereby absolutely and unconditionally assign to Assignee
all right, title and interest of Assignor in and to all present and future
Leases and Rents, and this Assignment constitutes a present and absolute
assignment and is intended to be unconditional and not as an assignment for
additional security only.  It is further
intended that it not be necessary for Assignee to institute legal proceedings,
absent any requirements of law or regulation to the contrary, to enforce the
provisions hereof.  Assignor hereby
authorizes Assignee or its agents to collect the Rents; provided, however, that
prior to an Event of Default, and subject at all times to the requirement that
payments and deposits of Rents be made directly to the Clearing Account,
Assignor shall have a revocable license, but limited as provided in this
Assignment and in any of the other Loan Documents, to otherwise deal with, and
enjoy the rights of the lessor under, the Leases.


(b)           Upon the occurrence and during the
continuance of an Event of Default, and without the necessity of Assignee
entering upon and taking and maintaining full control of the Property in
person, by agent or by court-appointed receiver, the license referred to in
paragraph (a) above shall immediately be revoked and Assignee shall have the
right at its option, to exercise all rights and remedies contained in the Loan
Documents, or otherwise available at law or in equity.


3.             Rents
Held in Trust by Assignor.  Rents
held or received by Assignor shall be held or received by Assignor as trustee
for the benefit of Assignee only and shall immediately be deposited directly to
the Clearing Account in accordance with the terms of the Loan Agreement.


4.             Effect
on Rights Under Other Documents. 
Nothing contained in this Assignment and no act done or omitted by
Assignee pursuant to the powers and rights granted it



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hereunder shall be
deemed to be a waiver by Assignee of its rights and remedies under any of the
other Loan Documents, and this Assignment is made and accepted without
prejudice to any of the rights and remedies possessed by Assignee under the
terms of the other Loan Documents.  The
rights of Assignee under the other Loan Documents may be exercised by Assignee
either prior to, simultaneously with, or subsequent to any action taken by it
hereunder.  This Assignment is intended
to be supplementary to and not in substitution for or in derogation of any
assignment of rents or grant of a security interest contained in any of the
other Loan Documents.


5.             Event
of Default. Upon or at any time after the occurrence and during the
continuance of an Event of Default, then in addition to and without limiting
any of Assignee’s rights and remedies hereunder and under the other Loan
Documents and as otherwise available at law or in equity:


(a)           Assignee may, at its option, without
waiving such Event of Default and without regard to the adequacy of the
security for the Debt, either in person or by agent, without bringing any action
or proceeding, or by a receiver appointed by a court, without taking possession
of the Property in its own name, demand, sue for or otherwise collect and
receive all Rents, including those past-due and unpaid, for application to the
payment of the Debt in accordance with the terms of the Loan Documents, and
Assignee may enter into, and to the extent that Assignor would have the right
to do so, cancel, enforce or modify any Lease. 
The exercise by Assignee of the option granted it in this Section and the
collection of the Rents and the application thereof as herein provided shall
not be considered a waiver of any Event of Default.


(b)           Assignor hereby acknowledges and
agrees that payment of any item of Rent by a Person to Assignee as hereinabove
provided shall constitute payment in full of such item of Rent by such Person,
as fully and with the same effect as if it had been paid to Assignor.


(c)           Assignee in respect of the Leases and
Rents shall have all of the rights and remedies of a secured party under the
Uniform Commercial Code as in effect in the State in which such rights and
remedies are asserted as described in Section 12(b) to the extent of such
rights thereunder and additional rights and remedies to which a secured party
is entitled under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted.


6.             Application
of Rents and Proceeds.  After the
occurrence and during the continuance of an Event of Default, Rents received or
held by Assignor or Assignee shall be applied in accordance with the terms of
the Loan Documents.


7.             Attorney-in-Fact.  Upon the occurrence and during the
continuance of any Event of Default, Assignor hereby appoints Assignee the
attorney-in-fact of Assignor to take any action and execute any instruments
that Assignor is obligated, or has covenanted and agreed under the Loan
Agreement or the other Loan Documents to take or execute, which appointment as
attorney-in-fact is irrevocable and coupled with an interest.  Without limiting the generality of the
foregoing provisions of this Section 7, upon the occurrence and during the
continuance of an Event of Default, Assignor does hereby irrevocably appoint
Assignee as its attorney-in-fact with



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full power, in the
name and stead of Assignor to demand, collect, receive and give complete
acquittance for any and all of the Rents now due or that may hereafter become
due, and at Assignee’s discretion, to file any claim, to take any other action,
to institute any proceeding or to make any settlement of any claim, either in
its own name or in the name of Assignor or otherwise, which Assignee may deem
necessary or desirable in order to collect and enforce the payment of Rents.


8.             Termination.  Assignee, by the acceptance of this
Assignment, agrees that when all of the Debt shall have been paid in full, this
Assignment shall terminate, and Assignee shall execute and deliver to Assignor,
upon such termination such instruments of termination or re-assignment and
Uniform Commercial Code termination statements, all without recourse and
without any representation or warranty whatsoever, as shall be reasonably
requested by Assignor provided, that, upon the termination and release of
record of the Security Instrument, this Agreement shall automatically
terminate, and the rights assigned hereunder re-assigned to Assignor, without
the need for a termination or re-assignment of record.


9.             Expenses.  Assignor agrees to pay to Assignee all
out-of-pocket expenses (including expenses for attorneys’ fees and costs of
every kind) of, or incident to, the enforcement of any of the provisions of
this Assignment or performance by Assignee of any obligation of Assignor
hereunder which Assignor has failed or refused to perform.


10.           Further
Assurances.  Assignor agrees that,
from time to time upon the written request of Assignee, it will give, execute,
deliver, file and/or record any financing statements, notice, instrument,
document, agreement or other papers and do such other acts and things that may
be necessary and desirable to create, preserve, perfect or validate this
Assignment, to enable Assignee to exercise and enforce its rights hereunder
with respect to this Assignment or to otherwise carry out the purposes and
intent of this Assignment.


11.           No
Obligation by Assignee.  By virtue of
this Assignment, Assignee shall not be obligated to perform or discharge, nor
does it hereby undertake to perform or discharge, any obligation, duty or
liability under any of the Leases.  This
Assignment shall not operate to constitute Assignee as a lender in possession
of the Property or to place responsibility for the control, care, management or
repair of the Property upon Assignee, nor shall it operate to make Assignee
responsible or liable for any waste committed on the Property by any tenant or
other party in possession or for any dangerous or defective condition of the
Property or for any negligence in the management, upkeep, repair or control
thereof.


12.           Miscellaneous.


(a)           No failure on the part of Assignee or
any of its agents to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by Assignee or any of
its agents of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
remedy.  Subject to Section 16
hereof, the remedies herein are cumulative and are not exclusive of any
remedies provided by law.



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(b)           WITH RESPECT TO MATTERS RELATING TO
THE CREATION, PERFECTION AND PROCEDURES RELATING TO THE ENFORCEMENT OF THIS
ASSIGNMENT, THIS ASSIGNMENT SHALL BE GOVERNED BY, AND BE CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IT
BEING UNDERSTOOD THAT, EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS PARAGRAPH
AND TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE
STATE OF NEW YORK SHALL GOVERN ALL MATTERS RELATING TO THIS ASSIGNMENT AND THE
OTHER LOAN DOCUMENTS AND ALL OF THE INDEBTEDNESS OR OBLIGATIONS ARISING
HEREUNDER OR THEREUNDER.  ALL PROVISIONS
OF THE LOAN AGREEMENT INCORPORATED HEREIN BY REFERENCE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AS SET
FORTH IN THE GOVERNING LAW PROVISION OF THE LOAN AGREEMENT.


(c)           Subject to Section 16 hereof,
all rights and remedies set forth in this Assignment are cumulative, and
Assignee may recover judgment thereon, issue execution therefor, and resort to
every other right or remedy available at law or in equity, without first
exhausting and without affecting or impairing the security of any right or
remedy afforded hereby; and no such right or remedy set forth in this
Assignment shall be deemed exclusive of any of the remedies or rights granted
to Assignee in any of the Loan Documents. 
Nothing contained in this Assignment shall be deemed to limit or
restrict the rights and remedies of Assignee under the Loan Agreement or any of
the other Loan Documents.


(d)           Until the indebtedness and all other
obligations secured by the Loan Documents is paid in full, Assignor will, upon
request, deliver from time to time to Assignee executed originals to the extent
available, otherwise photocopies certified by Assignor as true, correct and
complete, of executed originals, of any and all existing Leases to which
Assignor is a party, and executed originals, or photocopies of executed
originals, so certified by Assignor, if an executed original is not available,
of all other and future Leases to which Assignor is a party, and upon request
of Assignee, will specifically transfer and assign to Assignee such other and
future Leases upon the same terms and conditions as herein contained.


(e)           Assignor represents that it:  (i) has been advised that Assignee
engages in the business of real estate financings and other real estate
transactions and investments which may be viewed as adverse to or competitive
with the business of Assignor or its affiliates; (ii) is represented by
competent counsel and has consulted counsel before executing this Assignment;
and (iii) has relied solely on its own judgment and on its counsel and
advisors in entering into the transaction(s) contemplated hereby without
relying in any manner on any statements, representations or recommendations of
Assignee or any parent, subsidiary or affiliate of Assignee.


13.           No
Oral Change.  This Assignment may not
be amended except by an instrument in writing signed by Assignor and Assignee.


14.           Successors
and Assigns.  Assignor may not assign
its rights under this Assignment except as permitted under the Loan
Agreement.  Subject to the foregoing,
this



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Assignment shall
be binding upon, and shall inure to the benefit of, Assignor and Assignee and
their respective successors and assigns.


15.           Notices.  All notices, requests and other communications
provided for herein shall be given or made in writing in the manner specified
in the Loan Agreement.


16.           Exculpation.  It is expressly agreed that recourse against
Assignor for failure to perform and observe its obligations contained in this
Assignment shall be limited as and to the extent provided in Section 10.1 of
the Loan Agreement.


17.           Counterparts.  This Assignment 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.


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


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IN WITNESS WHEREOF, THIS
ASSIGNMENT has been executed by Assignor 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)



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