Exhibit 10.4


 


DEED
OF TRUST, SECURITY AGREEMENT,


FINANCING
STATEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING


 


(THIS DOCUMENT SECURES FUTURE ADVANCES TO FINANCE


CONSTRUCTION OF IMPROVEMENTS ON THE ENCUMBERED


REAL PROPERTY)


 


GRANTOR’S ORGANIZATIONAL
IDENTIFICATION NUMBER (DELAWARE): 4609472


GRANTOR’S COLORADO
IDENTIFICATION NUMBER: 20081646542


 


THIS DEED OF
TRUST, SECURITY AGREEMENT, FINANCING STATEMENT, ASSIGNMENT OF LEASES AND RENTS
AND FIXTURE FILING (this “Deed of Trust”) is given as of the 31st day of
December, 2008, by the Grantor named below to the Trustee named below, for the
use and benefit of the Beneficiary named below.


 


ARTICLE 1



PARTIES, PROPERTY, AND DEFINITIONS


 


The following
terms and references shall have the meanings indicated:


 


1.1                               Grantor.  BEHRINGER HARVARD 1875 LAWRENCE, LLC, a
Delaware limited liability company, whose legal address is 15601 Dallas
Parkway, Suite 600, Addison, Texas 75001, together with any future owner
of the Property or any part thereof or interest therein.


 


1.2                               Beneficiary.
 MUTUAL OF OMAHA BANK, a federally
chartered savings bank, whose legal address is 4455 LBJ Freeway, Suite 907,
Dallas, Texas 75244, Attention: Chris Martineau, together with any future
holder of the Note.


 


1.3                               Trustee.  The Public Trustee for the City and
County of Denver, Colorado.


 


1.4                               Note.  Grantor’s promissory note of even date
herewith, payable to the order of Beneficiary in the principal face amount of
$23,500,000.00, with a maturity date of December 31, 2012, together with all renewals, extensions
and modifications of such promissory note. 
All terms and provisions of the Note are incorporated by this reference
in this Deed of Trust.


 


1.5                               Property.  The tract or tracts of land described in Exhibit A
attached, together with the following:


 

















 


(a)                                  All
buildings, structures, and improvements now or hereafter located on such tract
or tracts, as well as all rights-of-way, easements, and other appurtenances
thereto;


 


(b)                                 All
of Grantor’s right, title and interest in any land lying between the boundaries
of such tract or tracts and the center line of any adjacent street, road,
avenue, or alley, whether opened or proposed;


 


(c)                                  All
of the rents, income, receipts, revenues, issues and profits of and from such
tract or tracts and improvements, whether such rents, income, receipts,
revenues, issues or profits are attributable to the period, or are collected,
prior to or subsequent to any default by Grantor;


 


(d)                                 All
(i) water and water rights (whether decreed or undecreed; tributary,
nontributary or not nontributary, surface or underground, or appropriated or
unappropriated); (ii) ditches and ditch rights; (iii) springs and
spring rights; (iv) reservoirs and reservoir rights; and (v) shares
of stock in water, ditch and canal companies and all other evidence of such
rights, which are now owned or hereafter acquired by Grantor and which are
appurtenant to or which have been used in connection with such tract or tracts
or improvements;


 


(e)                                  All
minerals, crops, timber, trees, shrubs, flowers, and landscaping features now
or hereafter located on, under or above such tract or tracts;


 


(f)                                    All
machinery, apparatus, equipment, fittings, and fixtures now or hereafter owned
by Grantor (whether actually or constructively attached, and including all
trade, domestic, and ornamental fixtures) and now or hereafter located in,
upon, or under such tract or tracts or improvements and used or usable in
connection with any present or future operation thereof, including, without
limitation: all heating, air conditioning, freezing, lighting, laundry,
incinerating and power equipment; engines; pipes; pumps; tanks; motors;
conduits; switchboards; plumbing, lifting, cleaning, fire prevention, fire
extinguishing, refrigerating, ventilating, cooking, and communications apparatus;
boilers, water heaters, ranges, furnaces, and burners; appliances; vacuum
cleaning systems; elevators; escalators; shades; awnings; screens; storm doors
and windows; stoves; refrigerators; attached cabinets; partitions; ducts and
compressors; rugs and carpets; draperies; and all additions thereto and
replacements therefor;


 


(g)                                 All
development rights associated with such tract or tracts, whether previously or
subsequently transferred to such tract or tracts from other real property or
now or hereafter susceptible of transfer from such tract or tracts to other
real property;


 


(h)                                 All
awards and payments, including interest thereon, resulting from the exercise of
any right of eminent domain or any other public or private taking of, casualty
or injury to, or decrease in the value of, any of such property, including,
without limitation, any and all insurance payments and proceeds relating to
such property;


 


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(i)                                     All
other and greater rights and interests of every nature in such tract or tracts
and in the possession or use thereof and income therefrom, whether now owned or
subsequently acquired by Grantor; and


 


1.6                               Chattels.  All goods, fixtures, inventory,
equipment, building and other materials, supplies, and other tangible personal
property of every nature now owned or hereafter acquired by Grantor and used,
intended for use, or reasonably required in the construction, development, or
operation of the Property, together with all accessions thereto, replacements
and substitutions therefor, and proceeds thereof.


 


1.7                               Intangible
Personalty.  The right to use all
trademarks and trade names and symbols or logos used in connection therewith,
or any modifications or variations thereof, in connection with the operation of
the improvements existing or to be constructed on the Property, together with
all monies in the possession of Beneficiary (including, without limitation,
proceeds from insurance, retainages and deposits for taxes and insurance),
permits, licenses, certificates and authorizations necessary for the beneficial
development, ownership, use, occupancy, operation and maintenance of the
Property; security deposits, deposit accounts, reserve accounts and other bank
or similar accounts of Grantor (together with all amounts in any such accounts)
(including, without limitation, any and all of Grantor’s accounts maintained
with Beneficiary), income: revenues, contract rights and general intangibles,
in each case whether now owned or hereafter acquired, and including proceeds
thereof, relating in any way to, or arising in any manner from, Grantor’s
ownership, use, operation, leasing, or sale of all or any part of the Property,
specifically including but in no way limited to any right which Grantor may
have or acquire to transfer any development rights from the Property to other
real property, and any development rights which may be so transferred. Without
limiting the generality of the foregoing, the following rights shall be
included within the term “Intangible Personalty”:


 


(a)                                  All
of Grantor’s right, title and interest in and to all agreements and contracts
now or hereafter entered into by Grantor with any and all architects,
contractors, subcontractors, materialmen, laborers and other persons or
entities, which relate in any way to the construction of improvements on any
part of the Property and any and all agreements and contracts entered into by
Grantor; and


 


(b)                                 All
of Grantor’s right, title and interest in and to all plans and specifications
used or which may be used to design and construct improvements on any part of
the Property.


 


Nothing herein
shall be construed as imposing on Beneficiary, or as constituting an assumption
by Beneficiary of, any obligation of Grantor under any of the foregoing
contracts, agreements or documents.


 


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1.8                               Loan
Documents.  The Loan Agreement of
even date herewith between Beneficiary and Grantor (the “Loan Agreement”), the
Note, all of the deeds of trust, mortgages and other instruments and documents
securing the Note, including this Deed of Trust, the Environmental Indemnity
Agreement, the Limited Guaranty Agreement, the Absolute Assignment of Leases
and Rents, and each other document executed or delivered in support of the
transaction pursuant to which the Note has been executed and delivered.  The term “Loan Documents” also includes all
modifications, extensions, renewals, and replacements of each document referred
to above.


 


1.9                               Indebtedness.  All of the following:


 


(a)                                  Note.  The principal of, interest on, or other sums
now and hereafter evidenced by the Note and any and all modifications,
extensions, renewals and rearrangements of the Note.


 


(b)                                 Advances.  Any and all sums, together with interest
thereon, which may hereafter be advanced by Beneficiary or otherwise due under
the terms of this Deed of Trust or the other Loan Documents, it being the
parties’ intent that this Deed of Trust hereby secures all advances made by
Beneficiary, both obligatory and optional, up to the maximum principal amount
of $23,500,000.00, any protective advances made by Beneficiary and any other
advances made by Beneficiary and permitted under C.R.S. Section 38-39-106.


 


(c)                                  Other
Loan Documents.  All present and
future obligations which constitute indebtedness of Grantor or any other party
under the Loan Documents.


 


(d)                                 Environmental
Indemnity Agreement.  All obligations
of Grantor under the Environmental Indemnity Agreement dated the date hereof
between Grantor and Beneficiary.


 


Any term used
or defined in the Colorado Uniform Commercial Code, as in effect from time to
time, and not defined in this Deed of Trust has the meaning given to the term
in the Colorado Uniform Commercial Code, as in effect from time to time, when
used in this Deed of Trust.


 


ARTICLE 2



GRANTING CLAUSE


 


2.1                               Grant
to Trustee. As security for the Indebtedness, Grantor hereby grants,
bargains, sells, and conveys the Property to Trustee, in trust for the use and
benefit of Beneficiary, with power of sale, and subject to all provisions hereof.


 


2.2                               Security
Interest to Beneficiary. As additional security for the Indebtedness,
Grantor hereby grants to Beneficiary a security interest in the Chattels and in
the Intangible


 


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Personalty.  To the extent any of the Chattels or the
intangible Personalty may be or have been acquired with funds advanced by
Beneficiary under the Loan Documents, this security interest is a purchase
money security interest. This Deed of Trust constitutes a Security Agreement
under the Uniform Commercial Code of the state in which the Property is located
(the “Code”) with respect to any part of the Property, Chattels and Intangible
Personalty that may or might now or hereafter be or be deemed to be personal
property, fixtures or property other than real estate (all collectively
hereinafter called “Collateral”); all of the terms, provisions, conditions and
agreements contained in this Deed of Trust pertain and apply to the Collateral
as fully and to the same extent as to any other property comprising the
Property, and the following provisions of this Section 2.2 shall not limit
the generality or applicability of any other provisions of this Deed of Trust
but shall be in addition thereto:


 


(a)                                  The
Collateral shall be used by Grantor solely for business purposes, being
installed upon the real estate comprising part of the Property for Grantor’s
own use or as the equipment and furnishings furnished by Grantor, as landlord,
to tenants of the Property;


 


(b)                                 All
tangible personal property constituting part of the Collateral shall be kept at
the real estate comprising a part of the Property, and shall not be removed
therefrom without the consent of Beneficiary (being the Secured Party as that
term is used in the Code); and the Collateral may be affixed to such real
estate but shall not be affixed to any other real estate;


 


(c)                                  No
financing statement covering any of the Collateral or any proceeds thereof is
on file in any public office; and Grantor will, at its cost and expense, upon
demand, furnish to Beneficiary such further information and will execute and
deliver to Beneficiary such financing statements and other documents in form
satisfactory to Beneficiary and will do all such acts and things as Beneficiary
may at any time or from time to time reasonably request or as may be necessary
or appropriate to establish and maintain a perfected security interest in the
Collateral as security for the Indebtedness, subject to no adverse liens or
encumbrances; and Grantor will pay the cost of filing the same or filing or
recording such financing statements or other documents and this instrument in
all public offices wherever filing or recording is deemed by Beneficiary to be
necessary or desirable;


 


(d)                                 The
terms and provisions contained in this Section 2.2 and in Section 7.6
of this Deed of Trust shall, unless the context otherwise requires, have the
meanings and be construed as provided in the Code; and


 


(e)                                  This
Deed of Trust constitutes a financing statement filed as a fixture filing under
the Code with respect to the Collateral. As such, this Deed of Trust covers all
items of the Collateral that are or are to become fixtures. Grantor is the “Debtor”
and Beneficiary is the


 


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“Secured Party”
(as those terms are defined and used in the Code) insofar as this Deed of Trust
constitutes a financing statement.


 


ARTICLE 3



GRANTOR’S TITLE AND AUTHORITY


 


3.1                               Warranty
of Title. Grantor represents and warrants to Beneficiary that Grantor has
good and marketable title to the Property in fee simple absolute, subject only
to the lien of general taxes for the current year, payable the following year,
and those additional matters, if any, set forth in Exhibit B
attached hereto (the “Permitted Exceptions”). Grantor further represents and
warrants to Beneficiary that Grantor is the absolute owner of the Chattels and
the Intangible Personalty, free of any liens, encumbrances, security interests
and other claims whatsoever, except insofar as the Chattels may be encumbered
by the lien of general taxes for the current year, payable in the following
year, or by any of the Permitted Exceptions. 
Grantor, for itself and its successors and assigns, hereby agrees to
warrant and forever defend, all and singular, all of the property and property
interest granted and conveyed in trust pursuant to this Deed of Trust, against
every person whomsoever lawfully claiming, or to claim, the same or any part
thereof, subject only to the Permitted Exceptions.  The warranties contained in this Section 3.1
shall survive foreclosure of this Deed of Trust, and shall inure to the benefit
of and be enforceable by any person who may acquire title to the Property, the
Chattels, or the Intangible Personalty pursuant to any such foreclosure.


 


3.2                               Waiver
of Homestead and Other Exemptions. To the extent permitted by law, Grantor
hereby waives all rights to any homestead or other exemption to which Grantor
would otherwise be entitled under any present or future constitutional,
statutory, or other provision of applicable state or federal law.


 


3.3                               Due
Authorization. If Grantor is other than a natural person, then each
individual who executes this document on behalf of Grantor represents and
warrants to Beneficiary that such execution has been duly authorized by all
necessary corporate, partnership, or other action on the part of Grantor.


 


ARTICLE 4



GRANTOR’S AFFIRMATIVE COVENANTS


 


4.1                               Payment
of Note. Grantor will pay all principal, interest, and other sums payable
under the Note, on the dates when such payments are due, without notice or
demand.


 


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4.2                               Performance
of Other Obligations. Grantor will promptly and strictly perform and comply
with all other covenants, conditions, and prohibitions required of Grantor by
the terms of the Loan Documents.


 


4.3                               Other
Encumbrances. Subject to the provisions of the Loan Agreement, Grantor will
promptly and strictly perform and comply with all covenants, conditions, and
prohibitions required of Grantor in connection with any other encumbrance
affecting the Property, the Chattels, or the Intangible Personalty, or any part
thereof, or any interest therein, regardless of whether such other encumbrance
is superior or subordinate to the lien hereof.


 


4.4                               Payment
of Taxes.


 


(a)                                  Property
Taxes.  Grantor will duly pay and
discharge, or cause to be paid and discharged, all taxes and assessments,
general or special, which may be levied or imposed at any time against Grantor’s
interest and estate in the Property, the Chattels, or the Intangible
Personalty, in accordance with Section 5.4 of the Loan Agreement.


 


(b)                                 Reserve
for Taxes. If Beneficiary shall at any time so request, following any Event
of Default (whether or not such Event of Default is subsequently cured) Grantor
will create a fund or reserve for the payment of taxes, assessments and similar
governmental charges referred to in this Section 4.4 in accordance with Section 6.5
of the Loan Agreement.


 


(c)                                  Intangible
Taxes. If by reason of any statutory or constitutional amendment or
judicial decision adopted or rendered after the date hereof, any tax,
assessment or similar charge is imposed against the Note, against Beneficiary,
or against any interest of Beneficiary in any real or personal property
encumbered hereby (but excluding franchise taxes, income taxes and excise taxes
imposed on Beneficiary), Grantor will pay such tax, assessment or other charge
before delinquency and will indemnify Beneficiary against all loss, expense, or
diminution of income in connection therewith.


 


In the event
Grantor is unable to do so, either for economic reasons or because the legal
provisions or decisions creating such tax, assessment or charge forbid Grantor
from doing so, then the Note will, at Beneficiary’s option, become due and
payable in full upon thirty (30) days’ notice to Grantor.


 


(d)                                 Right
to Contest. Notwithstanding any other provision of this Section 4.4,
Grantor will not be deemed to be in default solely by reason of Grantor’s
failure to pay any tax, assessment or similar governmental charge so long as,
in Beneficiary’s judgment, each of the following conditions is satisfied:


 


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(i)                                     Grantor
is engaged in and diligently pursuing in good faith administrative or judicial
proceedings appropriate to contest the validity or amount of such tax,
assessment or charge;


 


(ii)                                  Grantor’s
payment of such tax, assessment or charge would necessarily and materially
prejudice Grantor’s prospects for success in such proceedings;


 


(iii)                               Nonpayment
of such tax, assessment or charge will not result in the loss or forfeiture of
any property encumbered hereby or any interest of Beneficiary therein; and


 


(iv)                              When
requested by Beneficiary, Grantor deposits with Beneficiary, as security for
such payment which may ultimately be required, a sum equal to the amount of the
disputed tax, assessment or charge plus the interest, penalties, advertising
charges, and other costs which Beneficiary estimates are likely to become
payable if Grantor’s contest is unsuccessful.


 


If Beneficiary
determines that any one or more of such conditions is not satisfied or is no
longer satisfied, Grantor will pay the tax, assessment or charge in question,
together with any interest and penalties thereon, within ten (10) days
after Beneficiary gives notice of such determination.  Beneficiary will make any security posted
with Beneficiary pursuant to this Section 4.4 available to pay any amount
Grantor is determined to be liable for or is requested to pay in respect of any
such tax, assessment or other charges, and, absent an Event of Default, will
release any excess to Grantor.


 


4.5                               Maintenance
of Insurance.  Grantor shall, at
Grantor’s expense, maintain in force and effect on the Mortgaged Property (as
defined in the Loan Agreement) at all times while the Loan Agreement continues
in effect insurance in accordance with Section 5.6 of the Loan Agreement.


 


4.6                               Maintenance
and Repair of Property and Chattels. Grantor will at all times maintain the
Property and the Chattels in accordance with Sections 5.5 and 5.8 of the Loan
Agreement.


 


4.7                               Performance
of Lease Obligations. As used herein, the term “Tenant Leases” refers to
any and all present and future leases, subleases and other agreements under the
terms of which any person other than Grantor has or acquires any right to
occupy or use the Property or any part thereof. Grantor shall at all times
comply with all obligations in the Loan Documents with respect to Grantor’s
performance under the Tenant Leases.


 


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4.8                               Eminent
Domain; Private Damage. The provisions of Article 6 of the Loan
Agreement relating to the taking of or any damage to all or any part of the
property encumbered hereby are incorporated herein by this reference.


 


4.9                               Mechanics’
Liens. Grantor will keep the Property free and clear of all liens and
claims of liens by contractors, subcontractors, mechanics, laborers,
materialmen, and other such persons, and will cause any recorded statement of
any such lien to be released of record within thirty (30) days after the
recording thereof.  Notwithstanding the
preceding sentence, however, Grantor will not be deemed to be in default under
this Section 4.9 if and so long as Grantor (a) contests in good faith
the validity or amount of any asserted lien and diligently prosecutes or
defends an action appropriate to obtain a binding determination of the disputed
matter, and (b) provides Beneficiary with such security or title insurance
protection as Beneficiary may require to protect Beneficiary against all loss,
damage, and expense, including attorneys’ fees and expenses, which Beneficiary
or Grantor may incur if the asserted lien is determined to be valid.


 


4.10                        Defense of
Actions. Grantor will defend, at Grantor’s expense, any action, proceeding
or claim which affects any property encumbered hereby or any interest of
Beneficiary in such property or in the Indebtedness, and will indemnify and
hold Beneficiary harmless from all loss, damage, cost, or expense, including
attorneys’ fees, which Beneficiary may incur in connection therewith.


 


4.11                        Expenses
of Enforcement. Grantor will pay all costs and expenses, including
attorneys’ fees, which Beneficiary may incur in connection with any effort or
action (whether or not litigation or foreclosure is involved) to enforce or
defend Beneficiary’s rights and remedies under any of the Loan Documents,
including, without limitation, all attorneys’ fees, appraisal fees, consultants’
fees, and other expenses incurred by Beneficiary in securing title to or
possession of, and realizing upon, any security for the Indebtedness. All such
costs and expenses shall constitute part of the Indebtedness, and may be
included in the computation of the amount owed to Beneficiary for purposes of
foreclosing or otherwise enforcing this Deed of Trust.


 


4.12                        Financial
Reports. Grantor will furnish or cause to be furnished to Beneficiary all
financial reports or statements required under any of the Loan Documents.


 


4.13                        Priority
of Leases. To the extent Grantor has the right, under the terms of any Tenant
Lease, to make such Tenant Lease subordinate to the lien hereof, Grantor will,
at Beneficiary’s request and Grantor’s expense, take such action as may be
required to effect such subordination. Conversely, Grantor will, at Beneficiary’s
request and Grantor’s expense, take such action as may be necessary to
subordinate the lien hereof to any future Tenant Lease designated by
Beneficiary.


 


4.14                        Inventories;
Assembly of Chattels.  Grantor will
from time to time at the request of Beneficiary, supply Beneficiary with a
current inventory of the Chattels and the Intangible 


 


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Personalty, in
such detail as Beneficiary may reasonably require.  Upon the occurrence and during the
continuation of any Event of Default hereunder, Grantor will at Beneficiary’s
request assemble the Chattels and make them available to Beneficiary at any
place designated by Beneficiary which is reasonably convenient to both parties.


 


4.15                        Further
Assurances; Estoppel Certificates. Grantor will execute and deliver to
Beneficiary upon demand, and pay the costs of preparation and recording
thereof, any further documents which Beneficiary may request to confirm or
perfect the liens and security interests created or intended to be created hereby
or to confirm or perfect any evidence of the Indebtedness.  Grantor will also, within ten (10) days
after any request by Beneficiary, deliver to Beneficiary a signed and
acknowledged statement certifying to Beneficiary, or to any proposed transferee
of the Indebtedness, (a) the balance of principal, interest, and other
sums then outstanding under the Note, and (b) whether Grantor claims to
have any offsets or defenses with respect to the Indebtedness and, if so, the
nature of such offsets or defenses.


 


ARTICLE 5


 


GRANTOR’S NEGATIVE
COVENANTS


 


5.1                               Waste
and Alterations. Grantor will not commit or permit any waste with respect
to the Property or the Chattels. Grantor shall not cause or permit any part of
the Property, including, without limitation, any building, structure, parking
lot, driveway, landscape scheme, timber, or other ground improvement, to be
removed, demolished, or materially altered without the prior written consent of
Beneficiary.


 


5.2                               Zoning
and Private Covenants. Grantor will not initiate, join in, or consent to
any change in any zoning ordinance or classification, any change in the “zone
lot” or “zone lots” (or similar zoning unit or units) presently comprising the
Property, any transfer of development rights, any change in any private restrictive
covenant, or any change in any other public or private restriction limiting or
defining the uses which may be made of the Property or any part thereof,
without the express written consent of Beneficiary. If under applicable zoning
provisions the use of all or any part of the Property is or becomes a
nonconforming use, Grantor will not cause such use to be discontinued or
abandoned without the express written consent of Beneficiary.


 


5.3                               Interference
with Leases. Subject to the provisions of the Loan Agreement and Assignment
of Rents and Leases (as defined in the Loan Agreement), Grantor will neither do
nor neglect to do anything which may cause or permit the termination of any
Tenant Lease, or cause or permit the withholding or abatement of any rent
payable under any Tenant Lease.  Except
with the prior written consent of Beneficiary, Grantor will not (a) collect
rent from all or any part of the Property for more than one (1) month in
advance, (b) except as may be permitted pursuant 


 


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to the Loan
Agreement, modify any Tenant Lease, (c) assign the rents from the Property
or any part thereof, or (d) except as may be permitted pursuant to the
Loan Agreement, consent to the cancellation or surrender of all or any part of
any Tenant Lease.


 


5.4                               Transfer
of Property. Subject to the provisions of the Loan Agreement, Grantor will
not convey, lease, sell, assign, transfer, convert the intended use of or
substantially modify, either voluntarily or involuntarily, the Property or any
part thereof or interest therein, or grant any options or similar rights with
respect thereto, without the prior written consent of Beneficiary, which may be
withheld for any reason.


 


5.5                               Further
Encumbrance of Property. Subject to the provisions of the Loan Agreement,
Grantor will not create, incur, assume, permit or suffer to exist any junior
lien or encumbrance on all or any part of the Property, or any interest
therein, without the prior written consent of Beneficiary, which may be
withheld for any reason.


 


5.6                               Assessments
Against Property.  Grantor will not,
without the prior written approval of Beneficiary, which may be withheld for
any reason, consent to or allow (to the extent within Grantor’s control) the
creation of any so-called special districts, special improvement districts,
benefit assessment districts or similar districts, or any other body or entity
of any type, or allow (to the extent within Grantor’s control) to occur any
other event, that would or might result in the imposition of any additional
taxes, assessments or other monetary obligations or burdens on the Property,
and this provision shall serve as RECORD NOTICE to any such district or
districts or any governmental entity under whose authority such district or districts
exist or are being formed that, should Grantor or any other person or entity
include all or any portion of the Property in such district or districts,
whether formed or in the process of formation, without first obtaining
Beneficiary’s express written consent, the rights of Beneficiary in the
Property pursuant to this Deed of Trust or following any foreclosure of this
Deed of Trust, and the rights of any person or entity to whom Beneficiary might
transfer the Property following a foreclosure of this Deed of Trust, shall be
senior and superior to any taxes, charges, fees, assessments or other
impositions of any kind or nature whatsoever, or liens (whether statutory,
contractual or otherwise) levied or imposed, or to be levied or imposed, upon
the Property or any portion thereof as a result of inclusion of the Property in
such district or districts.


 


5.7                               Further
Encumbrance of Chattels and Intangible Personalty. Grantor will not create
or permit any junior lien, security interest or other encumbrance against the
Chattels or the Intangible Personalty without the prior written consent of
Beneficiary, which may be withheld for any reason.


 


5.8                               Transfer
or Removal of Chattels. Grantor will not sell, transfer or remove from the
Property all or any part of the Chattels, unless the items, if material to the
value or operation 


 


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of the
Property, sold, transferred, or removed are simultaneously replaced with
similar items of equal or greater quality.


 


5.9                               Change
of Name. Grantor will not change the name under which Grantor does
business, or adopt or begin doing business under any other name or assumed or
trade name, without first notifying Beneficiary of Grantor’s intention to do so
and delivering to Beneficiary such executed modifications or supplements to
this Deed of Trust (and to any financing statement which may be filed in
connection herewith) as Beneficiary may require.


 


5.10                        Improper
Use of Property, Chattels or Intangible Personalty. Grantor will not use the
Property, the Chattels or the Intangible Personalty for any purpose or in any
manner which violates in any material respect any applicable law, ordinance, or
other governmental requirement, the requirements or conditions of any insurance
policy, or any private covenant.


 


5.11                        Use of
Proceeds. Grantor will not use any funds advanced by Beneficiary under the
Loan Documents for any purpose other than as permitted by the provisions of the
Loan Documents.


 


ARTICLE 6



EVENTS OF DEFAULT


 


Each of the
following events will constitute a default (an “Event of Default”) under this
Deed of Trust and under each of the other Loan Documents:


 


6.1                               Failure
to Make Payment. Grantor’s failure to pay when due any amount due under the
terms of the Note or any other Loan Document;


 


6.2                               Failure
to Perform. The failure of Grantor to properly perform any obligation
contained herein or in any of the other Loan Documents (other than the
obligation to make payments under the Note or the other Loan Documents) and the
continuance of such failure beyond any applicable grace or cure period pursuant
to any Loan Document.  Notwithstanding
the foregoing, if a specific cure period is separately provided for such breach
or failure under this Deed of Trust or any of the other Loan Documents, then
such specific cure period shall apply, and no additional cure period shall be
provided by this Section 6.2;


 


6.3                               Judgments.
The failure of Grantor or any guarantor of any Indebtedness to pay any money
judgment against such party before the expiration of thirty (30) days after
such judgment becomes final and no longer appealable, and with respect to any
guarantor only, such money judgment or failure to pay also causes a violation
of any obligation or financial covenant of the guarantor under the Limited Guaranty
Agreement or any other Loan Document;


 


12

















 


6.4                               Assertion
of Priority. The assertion of any claim of priority over this Deed of
Trust, by title, lien, or otherwise, unless Grantor within thirty (30) days
after such assertion either causes the assertion to be withdrawn or provides
Beneficiary with such title insurance coverage or other security as Beneficiary
may require to protect Beneficiary against all loss, damage, or expense,
including attorneys’ fees, which Beneficiary may incur in the event such
assertion is upheld; or


 


6.5                               Other
Loan Documents. The occurrence of any default (after the lapse of any
applicable grace or cure period) by Grantor, or the occurrence of any event or
circumstance defined as an event of default, under any of the Loan Documents
other than this Deed of Trust.


 


ARTICLE 7



BENEFICIARY’S REMEDIES


 


Immediately
upon or any time after the occurrence and during the continuation of any Event
of Default hereunder, Beneficiary may exercise any remedy available at law or
in equity, including, without limitation, those listed below and those listed
in the other Loan Documents, in such sequence or combination as Beneficiary may
determine in Beneficiary’s sole discretion:


 


7.1                               Performance
of Defaulted Obligations. Beneficiary may make any payment or perform any
other obligation under the Loan Documents which Grantor has failed to make or
perform, and Grantor hereby irrevocably appoints Beneficiary as the true and
lawful attorney-in-fact for Grantor to make any such payment and perform any
such obligation in the name of Grantor. 
All payments made and expenses (including attorneys’ fees) incurred by
Beneficiary in this connection, together with interest thereon at the Default
Rate from the date paid or incurred until repaid, will be part of the
Indebtedness and will be immediately due and payable by Grantor to
Beneficiary.  In lieu of advancing
Beneficiary’s own funds for such purposes, Beneficiary may use any funds of
Grantor which may be in Beneficiary’s possession, including, without
limitation, insurance or condemnation proceeds and amounts deposited for taxes,
insurance premiums, or other purposes.


 


7.2                               Specific
Performance and Injunctive Relief. Notwithstanding the availability of
legal remedies, Beneficiary will be entitled to obtain specific performance,
mandatory or prohibitory injunctive relief, or other equitable relief requiring
Grantor to cure or refrain from repeating any default.


 


7.3                               Acceleration
of Indebtedness.  Beneficiary may, without
notice or demand, declare all of the Indebtedness immediately due and payable
in full.


 


7.4                               Suit
for Monetary Relief.  With or without
accelerating the maturity of the Indebtedness, Beneficiary may sue from time to
time for any payment due under any of the Loan 


 


13

















 


Documents; or
for money damages resulting from Grantor’s default under any of the Loan
Documents.


 


7.5                               Possession
of Property. Beneficiary may enter and take possession of the Property without
seeking or obtaining the appointment of a receiver, may employ a managing agent
for the Property, and may lease or rent all or any part of the Property, either
in Beneficiary’s name or in the name of Grantor, and may collect the rents,
issues, and profits of the Property. Any revenues collected by Beneficiary
under this Section 7.5 will be applied first toward payment of all
expenses (including attorneys’ fees) incurred by Beneficiary, together with
interest thereon at the Default Rate from the date incurred until repaid, and
the balance, if any, will be applied against the Indebtedness.


 


7.6                               Enforcement
of Security Interests. Beneficiary may exercise all rights of a secured
party under the Uniform Commercial Code with respect to the Chattels and the Intangible
Personalty, including, without limitation, taking possession of, holding, and
selling the Chattels and enforcing or otherwise realizing upon any accounts and
general intangibles. Any requirement for reasonable notice of the time and
place of any public sale, or of the time after which any private sale or other
disposition is to be made, will be satisfied by Beneficiary’s giving of such
notice to Grantor at least ten (10) days prior to the time of any public
sale or the time after which any private sale or other intended disposition is
to be made.


 


7.7                               Foreclosure
Against Property.  Beneficiary may
foreclose this Deed of Trust, insofar as it encumbers the Property, either by
judicial action or through Trustee.  If
this Deed of Trust encumbers more than one parcel of real estate, foreclosure
may be by separate parcel or en masse, as Beneficiary may elect in its sole
discretion. Foreclosure through Trustee will be initiated by Beneficiary’s
filing of its notice of election and demand for sale with Trustee.


 


Upon the
filing of such notice of election and demand for sale, Trustee shall promptly
comply with all notice and other requirements of the laws of Colorado then in
force with respect to such sales, and shall give four (4) weeks’ public
notice of the time and place of such sale by advertisement weekly in some
newspaper of general circulation then published in the County or City and
County in which the Property is located. Any sale conducted by Trustee pursuant
to this Section 7.7 shall be held at the front door of the county
courthouse for such County or City and County, or on the Property, or at such
other place as similar sales are then customarily held in such County or City
and County, provided that the actual place of sale shall be specified in the
notice of sale. All fees, costs and expenses of any kind incurred by
Beneficiary in connection with foreclosure of this Deed of Trust, including,
without limitation, the costs of any appraisals of the Property obtained by
Beneficiary, all costs of any receivership for the Property advanced by
Beneficiary, and all attorneys’ and consultants’ fees incurred by Beneficiary,
shall constitute a part of the Indebtedness and may be included as part of the
amount owing from Grantor to Beneficiary at any foreclosure sale. The proceeds
of any sale under this Section 7.7 shall be 


 


14

















 


applied first
to the fees and expenses of the officer conducting the sale, and then to the
reduction or discharge of the Indebtedness; any surplus remaining shall be paid
over to Grantor or to such other person or persons as may be lawfully entitled
to such surplus.  At the conclusion of
any foreclosure sale, the officer conducting the sale shall execute and deliver
to the purchaser at the sale a certificate of purchase which shall describe the
property sold to such purchaser and shall stare that upon the expiration of the
applicable periods for redemption, the holder of such certificate will be
entitled to a deed to the property described in the certificate. After the
expiration of all applicable periods of redemption, unless the property sold
has been redeemed by Grantor, the officer who conducted such sale shall, upon
request, execute and deliver an appropriate deed to the holder of the certificate
of purchase or the last certificate of redemption, as the case may be. Nothing
in this Section 7.7 dealing with foreclosure procedures or specifying
particular actions to be taken by Beneficiary or by Trustee or any similar
officer shall be deemed to contradict or add to the requirements and procedures
now or hereafter specified by Colorado law, and any such inconsistency shall be
resolved in favor of Colorado law applicable at the time of foreclosure.


 


7.8                               Appointment
of Receiver.  Beneficiary shall be
entitled, as a matter of absolute right and without regard to the value of any
security for the Indebtedness or the solvency of any person liable therefor, to
the appointment of a receiver for the Property upon ex parte application to any
court of competent jurisdiction.  Grantor
waives any right to any hearing or notice of hearing prior to the appointment
of a receiver.  Such receiver and his
agents shall be empowered (a) to take possession of the Property and any
businesses conducted by Grantor or any other person thereon and any business
assets used in connection therewith and, if the receiver deems it appropriate,
to operate the same, (b) to exclude Grantor and Grantor’s agents,
servants, and employees from the Property, (c) to collect the rents, issues,
profits, and income therefrom, (d) to complete any construction which may
be in progress, (e) to do such maintenance and make such repairs and
alterations as the receiver deems necessary, (f) to use all stores of
materials, supplies and maintenance equipment on the Property and replace such
items at the expense of the receivership estate, (g) to pay all taxes and
assessments against the Property and the Chattels, all premiums for insurance
thereon, all utility and other operating expenses, and all sums due under any
prior or subsequent encumbrance, and (h) generally to do anything which
Grantor could legally do if Grantor were in possession of the Property. All
expenses incurred by the receiver or his agents shall constitute a part of the
Indebtedness.  Any revenues collected by
the receiver shall be applied first to the expenses of the receivership,
including attorneys’ fees incurred by the receiver and by Beneficiary, together
with interest thereon at the Default Rate from the date incurred until repaid,
and the balance shall be applied toward the Indebtedness or in such other
manner as the court may direct.  Unless
sooner terminated with the express consent of Beneficiary, any such
receivership will continue until the Indebtedness has been discharged in full,
or until title to the Property has passed after foreclosure sale and all
applicable periods of redemption have expired.


 


15
















 


7.9                               Right
to Make Repairs, Improvements. 
Should any part of the Property come into the possession of Beneficiary,
whether before or after an Event of Default, Beneficiary may use, operate
and/or make repairs, alterations, additions and improvements to the Property
for the purpose of preserving it or its value. 
Grantor covenants to promptly reimburse and pay to Beneficiary at the
place where the Note is payable, or at such other place as may be designated by
Beneficiary in writing, the amount of all reasonable expenses (including the
cost of any insurance, taxes, or other charges) incurred by Beneficiary in
connection with its custody, preservation, use or operation of the Property,
together with interest thereon from the date incurred by Beneficiary at the
Default Rate, and all such expenses, costs, taxes, interest, and other charges
shall be a part of the Indebtedness. It is agreed, however, that the risk of
accidental loss or damage to the Property is undertaken by Grantor and, except
for Beneficiary’s willful misconduct or gross negligence, Beneficiary shall
have no liability whatsoever for decline in value of the Property, for failure
to obtain or maintain insurance; or for failure to determine whether any
insurance ever in force is adequate as to amount or as to the risks insured.


 


7.10                        Surrender
of Insurance.  Beneficiary may
surrender the insurance policies maintained pursuant to the terms hereof, or
any part thereof, and receive and apply any unearned premiums as a credit on
the Indebtedness and, in connection therewith, Grantor hereby appoints
Beneficiary (or any officer of Beneficiary) as the true and lawful agent and
attorney-in-fact for Grantor (with full powers of substitution), which power of
attorney shall be deemed to be a power coupled with an interest and therefore
irrevocable, to collect such premiums.


 


ARTICLE 8



ASSIGNMENT OF LEASES AND RENTS


 


8.1                               Assignment
of Leases and Rents.  As further
security for the Indebtedness, grantor hereby absolutely, unconditionally and
presently grants, transfers and assigns unto beneficiary all rents, royalties,
issues, profits, income and revenues (“rents”) now or hereafter due or payable
for the occupancy or use of the property, and all tenant leases, whether
written or oral, with all security therefor, including all guaranties thereof,
now or hereafter affecting the property; on the condition that beneficiary
hereby grants to grantor a license to collect and retain such rents prior to
the occurrence of any event of default hereunder. Such license shall be revocable
by beneficiary without notice to grantor at any time after the occurrence of an
event of default, and immediately upon any such revocation, beneficiary shall
be entitled to receive, and grantor shall deliver to beneficiary, any and all
rents theretofore collected by grantor which remain in the possession or
control of grantor.  Grantor represents
that the Rents and the Tenant Leases have not been heretofore sold, assigned,
transferred or set over by any instrument now in force and will not at any time
during the life of this assignment be sold, assigned, transferred or set over
by Grantor or by any person or persons whosoever; and Grantor has good right to
sell, assign, transfer and set over the same and to grant to and confer upon
Beneficiary the rights,


 


16

















 


interest,
powers and authorities herein granted and conferred. Failure of Beneficiary at
any time or from time to time to enforce the assignment of Rents and leases
under this Section 8.1 shall not in any manner prevent its subsequent
enforcement, and Beneficiary is not obligated to collect anything hereunder,
but is accountable only for sums actually collected.


 


8.2                               Further
Assignments. Grantor shall give Beneficiary at any time upon demand any
further or additional forms of assignment of transfer of such Rents. Tenant
Leases and security as may be reasonably requested by Beneficiary, and shall
deliver to Beneficiary executed copies of all such Tenant Leases and security.


 


8.3                               Application
of Rents. Beneficiary shall be entitled to deduct and retain a just and
reasonable compensation from monies received hereunder for its services or that
of its agents in collecting such monies. Any monies received by Beneficiary
hereunder may be applied when received from time to time in payment of any
taxes, assessments or other liens affecting the Property regardless of the
delinquency, such application to be in such order as Beneficiary may determine.
The acceptance of this Deed of Trust by Beneficiary or the exercise of any
rights by it hereunder shall not be, or be construed to be, an affirmation by
it of any Tenant Lease nor an assumption of any liability under any Tenant
Lease.


 


8.4                               Collection
of Rents. Upon or at any time after an Event of Default shall have occurred
and be continuing, Beneficiary may declare all sums secured hereby immediately
due and payable, and may, at its option, without notice, and whether or not the
Indebtedness shall have been declared due and payable, either in person or by
agent, with or without bringing any action or proceeding, or by a receiver to
be appointed by a court, (i) enter upon, take possession of, manage and
operate the Property, or any part thereof (including, without limitation,
making necessary repairs, alterations and improvements to the Property); (ii) take
possession of any and all Rents that may previously have been collected by
Grantor and which remain in the possession or control of Grantor, together with
any bank or similar accounts in which any such Rents may be deposited or held; (iii) make,
cancel, enforce or modify Tenant Leases; (iv) obtain and evict tenants; (v) fix
or modify rents; (vi) do any acts which Beneficiary deems reasonably
proper to protect the security thereof; and (vii) either with or without
taking possession of the Property, in its own name sue for or otherwise collect
and receive such Rents, including those past due and unpaid. In connection with
the foregoing, Beneficiary shall be entitled and empowered to employ attorneys,
and management, rental and other agents in and about the Property and to effect
the matters which Beneficiary is empowered to do, and in the event Beneficiary
shall itself effect such matters, Beneficiary shall be entitled to charge and
receive reasonable management, rental and other fees therefor as may be
customary in the area in which the Property is located; and the reasonable
fees, charges, costs and expenses of Beneficiary or such persons shall be
additional Indebtedness.  Beneficiary may
apply all funds collected as aforesaid, less costs and expenses of operation
and collection, including reasonable attorneys’ and agents’ fees, charges,
costs and expenses, as aforesaid, upon any Indebtedness, and in such order as
Beneficiary may determine. 


 


17

















 


The entering
upon and taking possession of the Property, the collection of such Rents and
the application thereof as aforesaid shall not cure or waive any default or
waive, modify or affect notice of default under the Note or this Deed of Trust
or invalidate any act done pursuant to such notice.


 


8.5                               Authority
of Beneficiary. Any tenants or occupants of any part of the Property are
hereby authorized to recognize the claims of Beneficiary hereunder without
investigating the reason for any action taken by Beneficiary, or the validity
or the amount of indebtedness owing to Beneficiary, or the existence of any
default in the Note or this Deed of Trust, or under or by reason of this
assignment of Rents and leases, or the application to be made by Beneficiary of
any amounts to be paid to Beneficiary. The sole signature of Beneficiary shall
be sufficient for the exercise of any rights under this assignment and the sole
receipt of Beneficiary for any sums received shall be a full discharge and
release therefor to any such tenant or occupant on the Property. Checks for all
or any part of the rentals collected under this assignment of Rents and leases
shall be drawn to the exclusive order of Beneficiary.


 


8.6                               Indemnification
of Beneficiary. Nothing herein contained shall be deemed to obligate
Beneficiary to perform or discharge any obligation. duty or liability of lessor
under any lease of the Property, and Grantor shall and does hereby indemnify
and hold Beneficiary harmless from any and all liability, loss or damage which
Beneficiary may or might incur under any lease of the Property or by reason of
the assignment; and any and all such liability, loss or damage incurred by
Beneficiary, together with the costs and expenses, including reasonable
attorneys’ fees, incurred by Beneficiary in defense of any claims or demands
therefor (whether successful or not), shall be additional Indebtedness, and
Grantor shall reimburse Beneficiary therefor on demand.


 


ARTICLE 9



MISCELLANEOUS PROVISIONS


 


9.1                               Time
of the Essence.  Time is of the
essence with respect to all provisions of the Loan Documents.


 


9.2                               Joint
and Several Obligations.  If Grantor
is more than one person or entity, then all persons or entities comprising
Grantor are jointly and severally liable for all of the Indebtedness.


 


9.3                               Rights
and Remedies Cumulative.  Beneficiary’s
rights and remedies under each of the Loan Documents are cumulative of the
right and remedies available to Beneficiary under each of the other Loan
Documents and those otherwise available to Beneficiary at law or in
equity.  No act of Beneficiary shall be
construed as an election to proceed under any particular provision of any Loan
Document to the exclusion of any other provision in the same or any other 


 


18

















 


Loan Document,
or as an election of remedies to the exclusion of any other remedy which may
then or thereafter be available to Beneficiary.


 


9.4                               No
Implied Waivers.  Beneficiary shall
not be deemed to have waived any provision of any Loan Document unless such
waiver is in writing and is signed by Beneficiary.  Without limiting the generality of the
preceding sentence, neither Beneficiary’s acceptance of any payment with
knowledge of a default by Grantor, nor any failure by Beneficiary to exercise
any remedy following a default by Grantor, shall be deemed a waiver of such
default, and no waiver by Beneficiary of any particular default on the part of
Grantor shall be deemed a waiver of any other default or of any similar default
in the future.


 


9.5                               No
Third Party Rights.  No person shall
be a third party beneficiary of any provision of any of the Loan
Documents.  All provisions of the Loan
Documents favoring Beneficiary are intended solely for the benefit of
Beneficiary, and no third party shall be entitled to assume or expect that
Beneficiary will not waive or consent to modification of any such provision in
Beneficiary’s sole discretion.


 


9.6                               Preservation
of Liability and Priority.  Without
affecting the liability of Grantor or of any other person (except a person
expressly released in writing) for payment and performance of all of the
Indebtedness, and without affecting the rights of Beneficiary with respect to
any security not expressly released in writing, and without impairing in any
way the priority of this Deed of Trust over the interests of any person
acquired or first evidenced by recording subsequent to the recording
hereof.  Beneficiary may, either before
or after the maturity of the Note; and without notice or consent: (a) release
any person liable for payment or performance of all or any part of the
Indebtedness; (b) make any agreement altering the terms of payment or
performance of all or any of the Indebtedness; (c) exercise or refrain
from exercising, or waive, any right or remedy which Beneficiary may have under
any of the Loan Documents; (d) accept additional security of any kind for
any of the Indebtedness; or (e) release or otherwise deal with any real or
personal property securing the Indebtedness. Any person acquiring or recording
evidence of any interest of any nature in the Property, the Chattels, or the
Intangible Personalty shall be deemed, by acquiring such interest or recording
any evidence thereof, to have agreed and consented to any or all such actions
by Beneficiary.


 


9.7                               Subrogation
of Beneficiary. Beneficiary shall be subrogated to the lien of any previous
encumbrance discharged with funds advanced by Beneficiary under the Loan
Documents regardless of whether such previous encumbrance has been released of
record.


 


9.8                               Notices.
Any notice required or permitted to be given by Grantor or Beneficiary under
this Deed of Trust shall be in writing and will be deemed given (a) upon
personal delivery or upon transmission by telecopier or similar facsimile transmission
device, (b) on the first business day after receipted delivery to a
courier service which guarantees next business day 


 


19

















 


delivery, or (c) on
the third business day after mailing, by registered or certified United States
mail, postage prepaid, in any case to the appropriate party at its address set
forth below:


 


If to Grantor:


 


Behringer Harvard 1875 Lawrence, LLC


15601 Dallas Parkway, Suite 600


Addison, Texas 75001


Attention: Gerald J. Reihsen, III


Telecopy No.: 866-655-3610


 


If to Beneficiary:


 


Mutual of Omaha Bank


4455 LBJ Freeway, Suite 907


Dallas, Texas 75244


Attention: 
Chris Martineau


Telecopy No.: 972-702-9508


 


And to:


 


Mutual of Omaha Bank


3333 Farnam Street


Omaha, Nebraska 68131


Attention: 
Tod R. Ellis


Telecopy No.:  402-351-4307


 


With a copy to:


 


Snell & Wilmer L.L.P.


1200 Seventeenth Street, Suite 1900


Denver, Colorado 80202


Attention: Andrew Pidcock, Esq.


Telecopy No.: (303) 634-2020


 


Any party may
change such party’s address for notices or copies of notices by giving notice
to the other parties in accordance with this Section 9.8.


 


9.9                               Defeasance.
Upon payment and performance in full of all of the Indebtedness, Beneficiary
will execute and deliver to Grantor such documents as may be required to
release this Deed of Trust of record.


 


20

















 


9.10                        Illegality.
If any provision of this Deed of Trust is held to be illegal, invalid, or
unenforceable under present or future laws effective during the term of this
Deed of Trust, the legality, validity, and enforceability of the remaining
provisions of this Deed of Trust shall not be affected thereby, and in lieu of
each such illegal, invalid or unenforceable provision there shall be added
automatically as a part of this Deed of Trust a provision as similar in terms
to such illegal, invalid, or unenforceable provision as may be possible and be
legal, valid, and enforceable. If the rights and liens created by this Deed of
Trust shall be invalid or unenforceable as to any part of the Indebtedness,
then the unsecured portion of the Indebtedness shall be completely paid prior
to the payment of the remaining and secured portion of the Indebtedness, and
all payments made on the Indebtedness shall be considered to have been paid on
and applied first to the complete payment of the unsecured portion of the
Indebtedness.


 


9.11                        Usury
Savings Clause. It is expressly stipulated and agreed to be the intent of
Beneficiary and Grantor at all times to comply with the applicable law
governing the highest lawful interest rate. If the applicable law is ever
judicially interpreted so as to render usurious any amount called for under the
Note or under any of the other Loan Documents: or, contracted for, charged,
taken, reserved or received with respect to the loan evidenced thereby, or if
acceleration of the maturity of the Note, any prepayment by Grantor, or any
other circumstance whatsoever, results in Grantor having paid any interest in
excess of that permitted by applicable law, then it is the express intent of
Grantor and Beneficiary that all excess amounts theretofore collected by
Beneficiary be credited on the principal balance of the Note (or, if the Note
has been or would thereby be paid in full, refunded to Grantor), and the
provisions of the Note and other Loan Documents immediately be deemed reformed
and the amounts thereafter collectible hereunder and thereunder reduced,
without the necessity of the execution of any new document, so as to comply
with the applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder and thereunder. The right to accelerate maturity
of the Note does not include the right to accelerate any interest which has not
otherwise accrued on the date of such acceleration, and Beneficiary does not
intend to collect any unearned interest in the event of acceleration. All sums
paid or agreed to be paid to Beneficiary for the use, forbearance or detention
of the indebtedness evidenced hereby or by the Note shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full so that the
rate or amount of interest on account of such indebtedness does not exceed the
maximum rate or amount of interest permitted under applicable law. The term “applicable
law” as used herein shall mean any federal or state law applicable to the loan
made by Beneficiary to Grantor pursuant to the Loan Agreement.


 


9.12                        Obligations
Binding Upon Grantor’s Successors. 
This Deed of Trust is binding upon Grantor and Grantor’s successors and
assigns, and shall inure to the benefit of Beneficiary and its successors and
assigns, and the provisions hereof shall likewise be covenants running with the
land.  The duties, covenants, conditions,
obligations, and warranties of Grantor 


 


21

















 


in this Deed
of Trust shall be joint and several obligations of Grantor and Grantor’s
successors and assigns


 


9.13                        Governing
Laws. The substantive laws of the State of Colorado shall govern the
validity, construction, enforcement, and interpretation of this Deed of Trust.


 


9.14                        Waiver of
Jury Trial.  GRANTOR HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY DISPUTE ARISING IN CONNECTION WITH THIS DEED OF TRUST OR IN ANY WAY RELATED
TO THE NEGOTIATION, ADMINISTRATION, MODIFICATION, EXTENSION OR COLLECTION OF
THE INDEBTEDNESS.  GRANTOR STATES THAT IT
HAS CONFERRED SPECIFICALLY WITH BENEFICIARY WITH RESPECT TO THIS WAIVER, AND
AGREES TO THIS WAIVER AFTER CONSULTATION WITH COUNSEL AND WITH FULL
UNDERSTANDING OF THE IMPLICATIONS HEREOF.


 


 


[Signature on following page.]


 


22

















 


This Deed of
Trust is signed and delivered as of the date first mentioned above.


 


	
   

  	
  GRANTOR:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER
  HARVARD 1875 LAWRENCE,

  LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Robert
  S. Aisner

  
	
   

  	
   

  	
  Robert S.
  Aisner, President and Chief

  
	
   

  	
   

  	
  Executive
  Officer

  



 


	
  STATE OF TEXAS

  	
  )

  
	
   

  	
  ) ss.

  
	
  COUNTY OF DALLAS

  	
  )

  



 


The foregoing
instrument was acknowledged before me this 31st day of December, 2008,
by Robert S. Aisner, as President and Chief Executive Officer of Behringer
Harvard 1875 Lawrence, LLC, a Delaware limited liability company.


 


Witness my
hand and official seal.


 


My commission
expires: 7/26/2012


 


	
   

  	
  /s/
  Catherine E. Mea

  
	
   

  	
  Notary
  Public

  



 


23

















 


EXHIBIT A


to


DEED OF TRUST, SECURITY AGREEMENT,


FINANCING STATEMENT AND ASSIGNMENT OF LEASES
AND RENTS


 


(Legal Description)


 


PARCEL
A:


 


Lots 25
through 32, inclusive,


Block 66,


East Denver,


City and
County of Denver,


State of
Colorado.


 


PARCEL
B:


 


Rights as
contained in that certain Agreement by and between The Financial Center
Condominium Office Association and 19th and Lawrence Associates,
dated September 28, 1984 and recorded May 3, 1985 at Reception No. 010099
and July 22, 1985 at Reception No. 042212, City and County of Denver,
State of Colorado real estate records.


 


PARCEL
C:


 


Revocable
license interests granted under Ordinance No. 210, Series of 1982
recorded January 20, 2000 at Reception No. 2000010228 and recorded
again on February 2, 2000 at Reception No. 2000016163 of the City and
County of Denver, State of Colorado real estate records.


 


 


Property
Address:  1875 Lawrence Street, Denver,
Colorado 80202


 


1

















 


EXHIBIT B


to


DEED OF TRUST, SECURITY AGREEMENT,


FINANCING STATEMENT AND ASSIGNMENT OF LEASES
AND RENTS


 


(Permitted Exceptions)


 


“Permitted
Exceptions” means the following:


 


1.                                       All
water, water rights, or claims thereto, in, on or under the land.


 


2.                                       Terms,
conditions, provisions, agreements and obligations specified under the
Agreement, which was recorded April 26, 1982 in Book 2573 at Page 45,
as shown on the ALTA/ASCM Land Title Survey prepared by Johnston Engineering
and Associates, Inc., dated August 11, 2008, last revised October 9,
2008, as Job No. 96022-01. (Note: Affects Parcel A)


 


3.                                       Terms,
conditions, provisions, agreements, easements and obligations specified under the
Agreements, which were recorded May 3, 1985 at Reception No. 10099
and July 22, 1985 at Reception No. 42212, as shown on the ALTA/ASCM
Land Title Survey prepared by Johnston Engineering and Associates, Inc.,
dated August 11, 2008, last revised October 9, 2008, as Job No. 96022-01.  (Note: Affects Parcel B)


 


4.                                       Terms,
conditions, provisions, agreements and obligations specified under Ordinance No. 210,
which was recorded January 20, 2000 at Reception No. 2000010228 and
again on February 2, 2000 at Reception No. 2000016163, as shown on
the ALTA/ASCM Land Title Survey prepared by Johnston Engineering and Associates, Inc.,
dated August 11, 2008, last revised October 9, 2008, as Job No. 96022-01.  (Note: Affects Parcel C)


 


5.                                       Rights
of Pendleton, Friedberg, Wilson & Hennessey, P.C., as tenant only,
pursuant to terms, agreements, provisions, conditions and obligations of an
unrecorded Office Lease, executed by Principal Life Insurance Company, as
lessor(s), and Pendleton, Friedberg, Wilson & Hennessey, P.C., as
lessee(s), a Memorandum of which recorded April 6, 2004 at Reception No. 2004084705,
and any and all parties claiming by, through or under said lessee(s).  (Note: Affects Parcel A)


 


6.                                       Terms,
conditions, provisions, agreements, easements and obligations specified under
the Construction Easement Agreements, which were recorded July 26, 2007 at
Reception No. 2007118050, as shown on the ALTA/ASCM Land Title Survey
prepared by Johnston Engineering and Associates, Inc., dated August 11,
2008, last revised October 9, 2008, as Job No. 96022-01.  (Note: Assignment of Easements recorded in
connection therewith on May 9, 2008 at Reception No. 2008064505 —
Also Note: Affects Parcel A)


 


7.                                       The
following item set forth on the ALTA/ACSM Land Title Survey prepared by Johnston
Engineering and Associates, Inc., dated August 11, 2008, last revised
October 9, 2008, as Job No. 96022-01, to wit:


 


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A)           The fact that windows sills from the third
and fourth floors of the neighboring building located to the Southwest encroach
into subject property.


 


8.                                       Rights
of those certain tenants, as tenants only, described in Schedule 1 attached
hereto and made a part hereof for all purposes.


 


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