Exhibit 10.23


 


This Deed of Trust securing $105,770,000.00 is for purchase
money in the amount of $48,476,520.00 and is exempt from recordation tax for
that amount. The balance of $57,293,480.00 is subject to recordation tax in the
amount of $630,228.28


 


DEED OF
TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING


 


RPT 1425
NEW YORK AVENUE
LLC


(Trustor)


 


Trustor’s Organizational Identification
Number: 3940068


 


to


 


RICHARD W.
KLEIN, JR.


(Trustee)


 


 


ARCHON
FINANCIAL, L.P.


(Beneficiary)


 


Dated: As of June 15, 2005


 


Property Location:


1425 New York Avenue


Washington D.C.


 


Loan No. 090002103


 


THIS INSTRUMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS
AND IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS UNDER THE NAMES
OF TRUSTOR, AS “DEBTOR”, AND BENEFICIARY, AS “SECURED PARTY”.


 


DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:


 


Kroll
McNamara Evans & Delehanty, LLP


29
South Main Street


West
Hartford, CT 06107


Attn:  Garrett J. Delehanty, Esq.


 


Archon Financial, L.P.


Deed of Trust, Assignment of Rents,


Security Agreement and Fixture Filing


1425 New York Avenue, Washington DC


 





















 


TABLE OF CONTENTS


 


	
  Paragraph

  	
   

  	
  Heading

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
   

  	
  Certain
  Representations, Warranties and Covenants of Trustor

  	
   

  
	
   

  	
  2.

  	
   

  	
  Insurance

  	
   

  
	
   

  	
  3.

  	
   

  	
  Casualty
  and Condemnation

  	
   

  
	
   

  	
  4.

  	
   

  	
  Use
  of the Proceeds of Insurance or Award

  	
   

  
	
   

  	
  5.

  	
   

  	
  Tax
  and Insurance Impound

  	
   

  
	
   

  	
  6.

  	
   

  	
  Escrow
  Funds

  	
   

  
	
   

  	
  7.

  	
   

  	
  Leases
  and Rents

  	
   

  
	
   

  	
  8.

  	
   

  	
  Transfer
  or Encumbrance of the Trust Property

  	
   

  
	
   

  	
  9.

  	
   

  	
  Single
  Purpose Entity/Separateness

  	
   

  
	
   

  	
  10.

  	
   

  	
  Maintenance
  of Trust Property

  	
   

  
	
   

  	
  11.

  	
   

  	
  Prepayment

  	
   

  
	
   

  	
  12.

  	
   

  	
  Estoppel
  Certificates and No Default Affidavits

  	
   

  
	
   

  	
  13.

  	
   

  	
  Changes
  in Laws Regarding Taxation

  	
   

  
	
   

  	
  14.

  	
   

  	
  No
  Credits on Account of the Debt

  	
   

  
	
   

  	
  15.

  	
   

  	
  Documentary
  Stamps

  	
   

  
	
   

  	
  16.

  	
   

  	
  Controlling
  Agreement

  	
   

  
	
   

  	
  17.

  	
   

  	
  Financial
  Statements

  	
   

  
	
   

  	
  18.

  	
   

  	
  Performance
  of Other Agreements

  	
   

  
	
   

  	
  19.

  	
   

  	
  Further
  Acts, Assignments and Participations.

  	
   

  
	
   

  	
  20.

  	
   

  	
  Recording
  of Deed of Trust, Etc.

  	
   

  
	
   

  	
  21.

  	
   

  	
  Notice
  of Certain Events

  	
   

  
	
   

  	
  22.

  	
   

  	
  Events
  of Default

  	
   

  
	
   

  	
  23.

  	
   

  	
  Late
  Payment Charge; Application of Payments after an Event of Default

  	
   

  
	
   

  	
  24.

  	
   

  	
  Beneficiary’s
  Right To Cure Defaults

  	
   

  
	
   

  	
  25.

  	
   

  	
  Remedies

  	
   

  
	
   

  	
  26.

  	
   

  	
  Right
  of Entry and Inspection

  	
   

  
	
   

  	
  27.

  	
   

  	
  Security
  Agreement

  	
   

  
	
   

  	
  28.

  	
   

  	
  Actions
  and Proceedings

  	
   

  
	
   

  	
  29.

  	
   

  	
  Contest
  of Certain Claims

  	
   

  
	
   

  	
  30.

  	
   

  	
  Recovery
  of Sums Required to be Paid

  	
   

  
	
   

  	
  31.

  	
   

  	
  Marshalling
  and Other Matters

  	
   

  
	
   

  	
  32.

  	
   

  	
  Hazardous
  Substances

  	
   

  
	
   

  	
  33.

  	
   

  	
  Environmental
  Operations

  	
   

  
	
   

  	
  34.

  	
   

  	
  Environmental
  Monitoring

  	
   

  
	
   

  	
  35.

  	
   

  	
  Compliance
  with Law; Alterations

  	
   

  
	
   

  	
  36.

  	
   

  	
  Indemnification

  	
   

  
	
   

  	
  37.

  	
   

  	
  Notices

  	
   

  
	
   

  	
  38.

  	
   

  	
  Authority

  	
   

  
	
   

  	
  39.

  	
   

  	
  Non-Waiver

  	
   

  
	
   

  	
  40.

  	
   

  	
  No
  Oral Change

  	
   

  
	
   

  	
  41.

  	
   

  	
  Liability

  	
   

  



 


ii





















 


	
   

  	
  42.

  	
   

  	
  Inapplicable
  Provisions

  	
   

  
	
   

  	
  43.

  	
   

  	
  Headings,
  Etc.

  	
   

  
	
   

  	
  44.

  	
   

  	
  Duplicate
  Originals

  	
   

  
	
   

  	
  45.

  	
   

  	
  Definitions

  	
   

  
	
   

  	
  46.

  	
   

  	
  Homestead

  	
   

  
	
   

  	
  47.

  	
   

  	
  Assignments

  	
   

  
	
   

  	
  48.

  	
   

  	
  Waiver
  of Jury Trial

  	
   

  
	
   

  	
  49.

  	
   

  	
  Power
  of Sale; Trustees Fees; Substitute Trustee

  	
   

  
	
   

  	
  50.

  	
   

  	
  Recourse
  Provisions

  	
   

  
	
   

  	
  51.

  	
   

  	
  Miscellaneous

  	
   

  
	
   

  	
  52.

  	
   

  	
  Reconveyance
  of Trust Property

  	
   

  
	
   

  	
  53.

  	
   

  	
  Cash
  Management

  	
   

  
	
   

  	
  54.

  	
   

  	
  Indemnification
  Paragraphs

  	
   

  
	
   

  	
  55.

  	
   

  	
  Componentization

  	
   

  
	
   

  	
  56.

  	
   

  	
  Interest
  Rate Applicable to Loans

  	
   

  
	
   

  	
  57.

  	
   

  	
  Maturity
  Date

  	
   

  
	
   

  	
  58.

  	
   

  	
  Eligible
  Accounts

  	
   

  
	
   

  	
  59.

  	
   

  	
  Special
  State Provisions

  	
   

  



 


iii





















 


THIS DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE
FILING (the “Deed of Trust”), made as of June 15, 2005, by RPT 1425 NEW YORK AVENUE LLC, a Delaware
limited liability company having its principal place of business at c/o
Republic Properties Corporation, 1280 Maryland Avenue, SW, Suite 280,
Washington D.C. 20024 (“Trustor”), to RICHARD W. KLEIN, JR., the
trustee hereunder, having an address at 9404 Ludgate Drive, Alexandria,
Virginia 22309 (“Trustee”), and to ARCHON FINANCIAL, L.P., a Delaware limited
partnership, having its principal place of business at 600 East Las Colinas
Boulevard, Suite 450, Irving, Texas 75039 (together with all successors
and assigns, “Beneficiary”). Certain capitalized terms used herein are defined in Paragraph
45 below.


 


WITNESSETH:


 


To secure (i) the payment of an indebtedness in the original
principal sum of One Hundred Five Million Seven Hundred Seventy Thousand and
No/100 Dollars ($105,770,000.00), lawful money of the United States of America
(such amount, the “Loan Amount”), to be paid with interest according to a certain Deed
of Trust Note of even date herewith made by Trustor to Beneficiary (the Deed of
Trust Note, as the same note may be modified, amended, supplemented or extended
and/or replaced by multiple Notes or divided into multiple Note Components in
accordance herewith being hereinafter collectively called the “Note”) and all other sums due hereunder, under the other
Loan Documents (hereinafter defined) and under the Note, including, without
limitation, interest, default interest, late charges, Yield Maintenance
Premiums and any sums advanced by Beneficiary to protect or preserve the
hereinafter defined Trust Property (said indebtedness and interest due under
the Note and all other sums due hereunder under the Note and the other Loan
Documents being hereinafter collectively referred to as the “Debt”), and (ii) the full and prompt
performance of each and every other obligation of Trustor contained herein or
in the Loan Documents (collectively the “Obligations”), Trustor has deeded, mortgaged, given, granted,
bargained, sold, alienated, enfeoffed, conveyed, confirmed, warranted, pledged,
assigned, and hypothecated and by these presents does hereby irrevocably,
unconditionally and absolutely deed, mortgage, give, grant, bargain, sell,
alien, enfeoff, convey, confirm, warrant, pledge, assign and hypothecate unto
Trustee (in trust, with power of sale) the real property described in Exhibit A
attached hereto (the “Premises”) and the buildings,
structures, fixtures, additions, enlargements, extensions, modifications,
repairs, replacements and improvements now or hereafter located or erected
thereon (the “Improvements”);


 


TOGETHER WITH: all right, title, interest and estate of Trustor 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 “Trust 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, all rights
to as-extracted collateral produced from or allocated to the Premises including
without limitation 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,
curtsey and rights of curtsey, property, possession, claim and demand
whatsoever, both at law and in equity, of Trustor 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, without limitation,
all heating, air conditioning, plumbing, lighting, communications and elevator
fixtures) and other property of every kind and nature, whether tangible or
intangible, (including software embedded therein), whatsoever owned by Trustor,
or in which Trustor has or shall have an interest, now or hereafter located
upon the Premises and the Improvements, or appurtenant thereto, and usable in
connection with the present or future operation and occupancy of the Premises
and the Improvements and all building equipment, materials and supplies of any
nature whatsoever owned by Trustor, or in which Trustor has or shall have an
interest, now or hereafter located upon the Premises and the Improvements, or appurtenant
thereto, or usable in connection with the present or future operation,
enjoyment and occupancy of the Premises and the Improvements (hereinafter all
of the foregoing items in this subparagraph (b) collectively
referred to as the “Equipment”), including
any leases of any of the Equipment, any deposits existing at any time in
connection with any of the Equipment, and the proceeds of any sale or transfer
of the foregoing, and the right, title and interest of Trustor in and to any of
the Equipment that may be subject to any “security interests” as defined in the
Uniform Commercial Code, as in effect from time to time in the State where the
Premises are located (the “Uniform Commercial
Code”), superior in lien to the
lien of this Deed of Trust;


 


(c)                                  all awards or payments, including interest
thereon, that may heretofore and hereafter be made with respect to the
Premises, Improvements or the Equipment, whether from the exercise of the right
of eminent domain or condemnation (including, without limitation, any transfer
made in lieu of or in anticipation of the exercise of said rights), or for a
change of grade, or for any other injury to or decrease in the value of the
Premises, Improvements or the Equipment;


 


(d)                                 all leases and other agreements or
arrangements heretofore or hereafter entered into affecting the use, enjoyment
or occupancy of, or the conduct of any activity upon or in, the Premises and
the Improvements, including any extensions, renewals, modifications or amendments
thereof (collectively, the “Leases”) (the
tenants, lessees, licensees, occupants or other users under the Leases are
collectively hereinafter referred to as “tenants”) and all rents, rent equivalents,
moneys payable as damages or in lieu of rent or rent equivalents, royalties (including,
without limitation, all oil and gas or other mineral royalties and bonuses),
income, fees, receivables, receipts, revenues, deposits (including, without
limitation, security, utility and other deposits), accounts, cash, issues,
profits, charges for services rendered, and other payment and consideration of
whatever form or nature received by or paid to or for the account of or benefit
of Trustor or its agents or employees from any and all sources arising from or
attributable to the Premises and the Improvements (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;


 


2





















 


(e)                                  all proceeds of and any unearned premiums on
any insurance policies covering all or any portion of the Premises,
Improvements or Equipment, including, without limitation, the right to receive
and apply the proceeds of any insurance, judgments, or settlements made in lieu
thereof, for damage to the Premises, Improvements or Equipment;


 


(f)                                    all accounts, escrows, impounds, reserves,
documents, instruments, chattel paper (whether tangible or electronic), claims,
deposits and general intangibles, as the foregoing terms are defined in the
Uniform Commercial Code, all promissory notes, and all franchises, trade names,
trademarks, copyrights, symbols, service marks, books, records, recorded data
of any kind or nature (regardless of the medium), plans, specifications,
schematics, designs, drawings, permits,  
consents,   licenses   (including liquor licenses, to the extent
assignable), license agreements, operating contracts, contract rights
(including, without limitation, 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 Premises, Improvements or
Equipment) and all management, franchise, service, supply and maintenance contracts
and agreements, and any other agreements, permits or contracts of any nature
whatsoever now or hereafter obtained or entered into by or on behalf of Trustor
with respect to the operation or ownership of the Premises, Improvements or
Equipment; and all approvals, actions, refunds, rebates or reductions of real estate
taxes and assessments (and any other governmental impositions related to the
Premises, Improvements or Equipment) resulting as a result of tax certiorari or
any applications or proceeding for reduction; and all causes of action that now
or hereafter relate to, are derived from or are used in connection with the
Premises, Improvements or Equipment, or the use, operation, maintenance,
occupancy or enjoyment thereof or the conduct of any business or activities
thereon (hereinafter all of the items referred to in this subparagraph (f) collectively
referred to as the “Intangibles”);


 


(g)                                 all letter of credit rights (whether or not
the letter of credit is evidenced by a writing) 
Trustor now has or hereafter acquires relating to the Premises,  Improvements, Equipment, Intangibles and
other properties, rights, title and interests hereinabove described;


 


(h)                                 all commercial tort claims Trustor now has or
hereafter acquires relating to the Premises, Improvements, Equipment,
Intangibles and other properties, rights, title and interests hereinabove
described;


 


(i)                                     any and all monies or funds now or hereafter
deposited in or with respect to any impound, escrow or similar funds
established pursuant to or held under any of the Loan Documents, including but
not limited to the Tax and Insurance Impound and the Replacement Escrow Fund
(as such terms are hereinafter defined); and


 


(j)                                     all accounts and proceeds (cash or non-cash),
products, offspring, rents and profits from any of the foregoing, including,
without limitation, those from the conversion (whether voluntary or
involuntary), sale, exchange, transfer, collection, loss, damage, disposition,
substitution or replacement of any of the foregoing.


 


TO HAVE AND TO HOLD the above granted and described Trust Property unto
and to the use and benefit of Trustee and its successors and assigns for the
benefit of Beneficiary, forever;


 


3





















 


IN TRUST, WITH POWER OF SALE, to secure the payment to Beneficiary of
the Debt at the time and in the manner provided for its payment in the Note and
in this Deed of Trust and the performance of the Obligations provided for in
the Loan Documents;


 


PROVIDED, HOWEVER, these presents are upon the express condition that,
if Trustor shall well and truly pay to Beneficiary the Debt at the time and in
the manner provided in the Note and this Deed of Trust and shall well and truly
abide by and comply with each and every of the Obligations set forth herein, in
the Note and in the other Loan Documents in a timely manner, these presents and
the estate hereby granted shall cease, terminate and be void; provided  however,
that Trustor’s obligation to indemnify and hold harmless Beneficiary pursuant to
the provisions hereof with respect to matters relating to any period of time
during which this Deed of Trust was in effect shall survive any such payment or
release.


 


All of the covenants, conditions and agreements
contained in (i) the Note and (ii) all and any of the documents other
than the Note and this Deed of Trust now or hereafter executed by Trustor
and/or others and by or in favor of Beneficiary, which evidences, secures or
guarantees all or any portion of the Debt or otherwise is executed and/or delivered
in connection with the Note and this Deed of Trust are hereby made a part of
this Deed of Trust to the same extent and with the same force as if fully set
forth herein; provided, however, that notwithstanding any
provision of this Deed of Trust to the contrary, the obligations of the Trustor
under that certain Environmental and Hazardous Substance Indemnification
Agreement of even date herewith executed by Trustor in favor of Beneficiary
(the “Environmental
Indemnity”) shall
not be deemed or construed to be secured by the lien of this Deed of Trust or
otherwise restricted or affected by the foreclosure of the lien hereof or any
other exercise by Beneficiary of its remedies hereunder or under any other Loan
Document, such Environmental Indemnity being intended by the signatories
thereto to be its (or their) unsecured obligation. The Note is evidence of that
certain loan in the Loan Amount made to Trustor by Beneficiary (the “Loan”).


 


1.               Certain Representations,
Warranties and Covenants of Trustor. Trustor
represents, warrants, covenants and agrees as follows:


 


(a)                                  Trustor covenants and agrees to pay the Debt
and perform the Obligations at the time and in the manner provided in the Note
and in this Deed of Trust.


 


(b)                                Trustor represents and warrants to
Beneficiary that Trustor (i) has good, marketable, indefeasible and
insurable title to the Trust Property (subject to the Permitted Encumbrances), (ii) is
duly organized, validly existing and in good standing under the laws of its state
of organization or incorporation; (iii) is duly qualified to transact
business and is in good standing in the state where the Premises are located, (iv) has,
to its best knowledge and belief, all necessary approvals, governmental and
otherwise, and full power and authority to own, operate and lease the Premises
and Improvements, (v) has full power, authority and legal right to mortgage,
grant, bargain, sell, pledge, assign, warrant, transfer and convey the Trust
Property pursuant to, and to keep and observe all of, the terms of this Deed of
Trust and the other Loan Documents, and (vi) possesses an unencumbered fee
estate in the Premises and the Improvements and owns the Trust Property free
and clear of all liens, encumbrances and charges whatsoever except for the
Permitted Encumbrances. Trustor represents and warrants that this Deed of Trust
is and will remain a valid and enforceable first lien on and security interest
in the Trust Property,


 


4





















 


subject only to said exceptions. Trustor shall forever warrant, defend
and preserve such title and the validity and priority of the lien of this Deed
of Trust and shall forever warrant and defend the same to Beneficiary against
the claims of all persons whomsoever. The Permitted Exceptions do not and will
not materially and adversely affect or interfere with the value, or current use
or operation, of the Premises and Improvements, or the security intended to be
provided by this Deed of Trust or Trustor’s ability to repay the Debt in
accordance with the terms of the Loan Documents


 


(c)                                  Trustor covenants and agrees with Beneficiary
to pay (i) all taxes, assessments, governmental impositions, water rates
and sewer rents, now or hereafter levied or assessed or imposed against the
Trust Property or any part thereof (the “Taxes”), (ii) all
ground rents, maintenance charges, other impositions, and other charges,
including, without limitation, vault charges and license fees for the use of
vaults, chutes and similar areas adjoining the Premises (the “Other Charges”),
now or hereafter levied or assessed or imposed against the Trust Property or any
part thereof, and (iii) all claims and demands of mechanics, materialmen,
laborers and others for any work performed or materials delivered to the
Premises or the Improvements, when the same are due and payable.  Trustor shall not suffer and shall promptly
cause to be paid and discharged any lien or charge whatsoever which may be or
become a lien or charge against the Trust Property for the payment of Taxes, Other
Charges and the claims and demands of mechanics, materialmen, laborers and
others for any work performed or materials delivered to the Premises or the
Improvements, subject to the provisions of Paragraph 29 below, and shall
promptly pay for all utility services provided to the Trust Property as the
same become due and payable. Trustor will deliver to Beneficiary receipts for
payment or other evidence satisfactory to Beneficiary that the Taxes and Other
Charges have been so paid on or before the date on which the Taxes and/or Other
Charges would otherwise be delinquent if not paid (provided, however, that
Trustor is not required to furnish such receipts for payment of Taxes in the
event that Trustor has previously deposited with Beneficiary sufficient funds
to pay all such Taxes from the Tax and Insurance Impound).


 


(d)                                 Trustor represents and warrants to
Beneficiary that  (i)  Trustor is
not an “investment company,” or a company “controlled” by an “investment
company,” as such terms are defined in the Investment Company Act of 1940, as
amended, or a “holding company” or a “subsidiary company” of a “holding company”
or an “affiliate” of either a “holding company” or a “subsidiary company”
within the meaning of the Public Utility Holding Company Act of 1935, as
amended, or subject to any other federal or state law or regulation that
purports to restrict or regulate Trustor’s ability to borrower money; (ii) no
part of the proceeds of the Loan will be used for the purpose of purchasing or
acquiring any  “margin stock”  within the meaning of Regulations T, U or X
of the Board of Governors of the Federal Reserve System or for any other purpose
which would be inconsistent with such Regulations T, U or X or any other
Regulations of such Board of Governors, or for any purpose prohibited by legal
requirements or by the terms and conditions of the Loan Documents; (iii) the
Loan is solely for the business purpose of Trustor, and is not for personal,
family, household, or agricultural purposes; and (iv) the Note, this Deed
of Trust and the other Loan Documents are not subject to any right of
rescision, set-off, counterclaim or defense, including the defense of usury,
nor would the operation of any of the terms of the Note, this Deed of Trust or
the other Loan Documents, or the exercise of any right


 


5





















 


thereunder, render this Deed of Trust unenforceable, in whole or in
part, or subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury.


 


(e)                                  Trustor represents and warrants to
Beneficiary that to Trustor’s best knowledge and belief Trustor (i) has
obtained all necessary certificates, licenses and other approvals, governmental
and otherwise, necessary for the operation of the Premises and Improvements and
the conduct of its business and all required zoning, building code, land use,
environmental and other similar permits or approvals, all of which are in full
force and effect as of the date hereof and none of which are subject to
revocation, suspension, forfeiture or modification, (ii) the Premises and
Improvements and the present and contemplated use and occupancy thereof are in full
compliance with all applicable laws, (iii) the Improvements are served by
all utilities required for the current or contemplated use thereof and all
utility services are provided by public utilities and the Improvements have
accepted or are equipped to accept such utility services, (iv) all public roads
and streets necessary for service of and access to the Premises and
Improvements for the current or contemplated use thereof have been completed,
are serviceable and all-weather and are physically and legally open for use by
the public, (v) the Improvements are served by public water and sewer
systems, (vi) the Improvements are free from damage caused by fire or
other casualty, (vii) all costs and expenses of any and all labor,
materials, supplies and equipment used in the construction of the Improvements
have been paid in full, (viii) except for personal property owned by
tenants or leased by tenants from a person or entity other than Trustor,
Trustor has paid in full for, and is the owner of, all of the Equipment and
other personal property used in connection with the operation of the
Improvements, free and clear of any and all security interests, liens or
encumbrances, except the lien and security interest created hereby, and   (ix) there is no proceeding pending (or
notice of such proceeding received by Trustor) for the total or partial
condemnation of, or affecting, the Premises or Improvements.


 


(f)                                    Trustor represents and warrants to
Beneficiary that to Trustor’s best knowledge and belief, (i) except as
shown on the survey delivered to Beneficiary in connection with the origination
of the Loan (the “Survey”), all
of the Improvements which were included in determining the appraised value of
the Trust Property lie wholly within the boundaries and building restriction
lines of the Premises, and no improvements on adjoining properties encroach upon
the Premises or Improvements, and no easements or other encumbrances, except
those which are insured against by title insurance, encroach upon any of the
Improvements so as to affect the value or marketability of the Trust Property
and (ii) the Premises and Improvements are assessed for real estate tax
purposes as one or more wholly independent tax lot or lots, separate from any
adjoining land or improvements not constituting a part of such lot or lots, and
no other land or improvements are assessed and taxed together with the Premises
and Improvements or any portion thereof. 
Trustor agrees that if the Premises and Improvements are not taxed and assessed
as one or more tax parcels exclusive of all other real property, the term “Taxes” will include all taxes, assessments, water rates and
sewer rents now or hereafter levied, assessed or imposed against all other
property, whether or not owned by Trustor, that is taxed and assessed as part
of any tax parcel that includes all or any portion of the Premises or
Improvements.


 


(g)                                 Trustor represents and warrants to
Beneficiary that to its best knowledge and belief, except as expressly
disclosed in writing in the Leases or the rent roll for the Improvements delivered
to Beneficiary prior to the date hereof or as otherwise disclosed in writing to


 


6





















 


Beneficiary prior to the date hereof, (i) Trustor is the sole
owner of the entire lessor’s interest in the Leases, (ii) the Leases are
valid and enforceable and in full force and effect, (iii) all of the
Leases are arm’s-length agreements with bona fide, independent third parties, (iv) no
party under any Lease is in default in any material respect, (v) all Rents
due have been paid in full, (vi) the terms of all alterations,
modifications and amendments to the Leases are reflected in the written
documents delivered to Beneficiary prior to the date hereof, (vii) none of
the Rents reserved in the Leases have been assigned or otherwise pledged or
hypothecated (except such pledge or hypothecation that will be fully terminated
and released in connection with the filing and recordation of this Deed of
Trust), (viii) none of the Rents have been collected for more than one (1) month
in advance (except a security deposit that shall not be deemed rent collected
in advance), (ix) the premises demised under the Leases have been
completed and the tenants under the Leases have accepted the same and have
taken possession of the same on a rent-paying basis, (x) there exist no offsets
or defenses to the payment of any portion of the Rents and Trustor has no
monetary obligation to any tenant under any Lease, (xi) Trustor has received no
notice from any tenant challenging the validity or enforceability of any Lease,
(xii) there are no agreements with the tenants under the Leases other than
expressly set forth in each Lease, (xiii) no Lease contains an option to
purchase, right of first refusal to purchase, or any other similar provision
respecting the Premises or Improvements, (xiv) no person has any possessory
interest in, or right to occupy, the Premises or Improvements except under and
pursuant to a Lease, (xv) all security deposits relating to the Leases
reflected on the rent roll delivered by Trustor to Beneficiary have been
collected in cash by Trustor, and (xvi) no brokerage commissions or finders
fees are due and payable regarding any Lease.


 


(h)                                 Trustor represents and warrants to
Beneficiary that (i) there is no action, suit or proceeding, judicial,
administrative or otherwise (including any condemnation or similar proceeding),
pending or, to Trustor’s best knowledge and belief, threatened or contemplated
against Trustor, Guarantor, RPT 1425 Holdings LLC (“1425
Holdings”), RPT 1425 Investors L.P. (“1425
Investors”), RPT 1425 (General Partner) LLC (“1425 GP”),
or any person who owns or controls, directly or indirectly, twenty-five percent
(25%) or more of the beneficial ownership interests of Trustor, or against or
affecting any portion of the Trust Property, which has not been disclosed by
Trustor in writing to Beneficiary, (ii) Trustor is not a “foreign person”
within the meaning of Section 1445(f)(3) of the Internal Revenue Code
and the related Treasury Department regulations, (iii) during the ten (10) year
period preceding the date hereof, no petition in bankruptcy has been filed by
or against Trustor, Guarantor, 1425 Holdings, 1425 Investors, 1425 GP, or any
Affiliate of Trustor, Guarantor, 1425 Holdings, 1425 Investors, or 1425 GP, or
any person who owns or control, directly or indirectly, twenty-five percent (25%)
or more of the beneficial ownership interests of Trustor, (iv) Trustor has
not entered into the Loan or any of the Loan Documents with the actual intent
to hinder, delay, or defraud any creditor, (v) Trustor has received
reasonably equivalent value in exchange for its obligations under the Loan
Documents, (vi) giving effect to the transactions contemplated by the Loan
Documents, the fair saleable value of the Trustor’s assets exceeds and will,
immediately following the execution and delivery of the Loan Documents, exceed
Trustor’s total liabilities, including, without limitation, subordinated,
unliquidated, disputed or contingent liabilities, (vii) Trustor does not
have any known material contingent liabilities, (viii) Trustor does not
have any material financial obligation under any indenture, mortgage, deed of
trust, loan agreement, or other agreement or instrument to which Trustor is a
party or by which Trustor or any of the Trust Property is otherwise bound,
other than


 


7





















 


obligations incurred in the ordinary course of the operation of the
Trust Property and other than obligations under the Loan and the Loan
Documents, and (ix) Trustor has not borrowed or received other debt
financing that has not been heretofore paid in full (or will be paid in full as
of the date hereof from the proceeds of the Loan). .


 


(i)                                     Trustor represents and warrants to
Beneficiary that to Trustor’s best knowledge and belief the Trust Property is,
and Trustor covenants and agrees to cause the Trust Property at all times to
remain, in compliance with all statutes, ordinances, regulations and other
governmental or quasi-governmental requirements and private covenants now or
hereafter relating to the ownership, construction, use or operation of the
Trust Property.


 


(j)                                     The Property Management Agreement, dated May 26,
2005 (the “Management Agreement”) between
Trustor and Republic Properties Corporation, a District of Columbia corporation
(the “Property Manager”) pursuant to which
Property Manager operates the Trust Property is in full force and effect and
there is no default or violation by any party thereunder. The fee due under the
Management Agreement, and the terms and provisions of the Management Agreement,
are subordinate to this Deed of Trust and the Property Manager shall attorn to
Beneficiary. Trustor shall not terminate, cancel, modify, renew or extend the
Management Agreement, or enter into any agreement relating to the management or
operation of the Trust Property with Property Manager or any other party
without the express prior written consent of Beneficiary, which consent shall
not be unreasonably withheld.


 


If at any time Beneficiary consents to the
appointment of a new property manager, such new property manager and Trustor
shall, as a condition of Beneficiary’s consent, execute a Manager’s Consent and
Subordination of Management Agreement in the form then used by Beneficiary. If
Trustor proposes to enter into an agreement relating to the management or
operation of the Trust Property with any person other than Property Manager,
Beneficiary may condition its consent to such new arrangement upon Beneficiary’s
receipt of written recommendations from the Rating Agencies (as hereinafter
defined) to the effect that the proposed change in property manager will not
result in a requalification, reduction or withdrawal of any rating initially
assigned or to be assigned in a Securitization, if Beneficiary reasonably
determines it necessary or prudent to do so. Trustor shall reimburse Beneficiary
on demand for all of Beneficiary’s actual out-of pocket costs incurred in
processing Trustor request for consent to new property management arrangements.
Upon the occurrence and during the continuance of an Event of Default, or a
material default by Property Manager under the Property Management Agreement
after the expiration of any applicable cure period or upon the filing of a
bankruptcy petition or the occurrence of a similar event with respect to the
Property Manager, Beneficiary may, in its sole discretion, require Trustor to
terminate the Property Management Agreement and engage a replacement Property
Manager selected by Beneficiary to serve as replacement property manager
pursuant to a Management Agreement approved by Beneficiary.


 


(k)                                 Trustor’s exact legal name is correctly set
forth above Trustor’s signature at the end of this Deed of Trust. Trustor is
incorporated in or organized under the laws of the State of Delaware. Trustor
will not change or permit any change to be made in its name, identity, nature
of legal form or state of its incorporation or organization, unless in each
instance Trustor shall have notified Beneficiary in writing of such change at
least 30 days prior to the effective date of


 


8





















 


such change, and shall have first taken all actions reasonably deemed
necessary by Beneficiary, including without limitation the execution and
delivery of additional financing statements, financing statement amendments,
security agreements and other instruments, to effectively evidence or perfect
Beneficiary’s security interest in the
Trust Property as a result of such changes. Trustor’s principal place of
business and its chief executive office, and the place where Trustor keeps its
books and records, including recorded data of any kind or nature, regardless of
the medium of recording, including without limitation software, writings,
plans, specifications and schematics concerning the Trust Property, has for the
preceding four months (or, if less, the entire period of the existence of
Trustor) been and will continue to be (unless Trustor notifies Beneficiary of
any change in writing at least 30 days prior to the date of such change) at c/o
Republic Properties Corporation, 1280 Maryland Avenue, SW, Suite 280,
Washington D.C. 20024. Trustor’s organizational identification number, if any,
assigned by the State of Delaware, is correctly set forth on the front page of
this Deed of Trust. Trustor shall promptly notify Beneficiary of any change of
its organizational number or, if Trustor does not now have an organizational
identification number but acquires one after the date hereof, of such
organizational number.


 


(l)                                     Trustor warrants, represents and covenants
that neither Trustor not Guarantor is or will be an entity or person (i) that
is listed in the Annex to, or is otherwise subject to the provisions of
Executive Order 13224 issued on September 24, 2001 (“EO13224”),
(ii) whose name appears on the United States Treasury Department’s Office
of Foreign Assets Control (“OFAC”) most
current list of “Specifically Designated National and Blocked Persons” (which
list may be published from time to time in various mediums including, but not
limited to, the OFAC website, http:www.treas.gov/ofac/tllsdn.pdf) (iii) who
commits, threatens to commit or supports “terrorism”, as that term is defined
in EO 13224, or (iv) who is otherwise affiliated with any entity or person
listed above (any and all parties or persons described in clauses (i) through
(iv) above are herein referred to as a “Prohibited
Person”). Trustor covenants and agrees that neither Trustor nor
Guarantor nor will (i) knowingly conduct any business, nor engage in any
transaction or dealing, with any Prohibited Person, including, but not limited
to, knowingly making or receiving any contribution of funds, goods, or
services, to or for the benefit of a Prohibited Person in violation of
applicable laws, or (ii) knowingly engage in or conspire to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding,
or attempts to violate, any of the prohibitions set forth in EO13224. Trustor
further covenants and agrees to deliver (from time to time) to Beneficiary any
such certification or other evidence as may reasonably be requested by Beneficiary,
confirming that (i) neither Trustor nor Guarantor is a Prohibited Person
and (ii) neither Trustor nor Guarantor has knowingly engaged in any
business, transaction or dealings with a Prohibited Person, including, but not
limited to, the making or receiving of any contribution of funds, goods, or
services, to or for the benefit of a Prohibited Person


 


(m)                               Trustor shall give Beneficiary prompt notice (containing reasonable
detail) of (x) any material change in the financial or physical condition of
the Trust Property, as reasonably determined by Trustor, including the
termination or cancellation of any Lease of more than 75,000 square feet and
the termination or cancellation of terrorism or other insurance required by
this Deed of Trust, or (y) any litigation or governmental proceedings pending
or threatened in writing against Trustor which is reasonably likely to have a
material adverse effect upon (i) the


 


9





















 


ability of Trustor to perform, or of Beneficiary to enforce, any
material provision of any Loan Document, (if) the enforceability of any
material provision of any Loan Document, or (iii) the value, Net Operating
Income, use or enjoyment of the Trust Property or the operation thereof


 


Trustor agrees that all of the representations of Trustor set forth in
this Deed of Trust and in the other Loan Documents shall survive for so long as
any portion of the Debt is outstanding. All representations, covenants and
agreements made by Trustor in this Deed of Trust or in the other Loan Documents
shall be deemed to have been relied upon by Beneficiary notwithstanding any
investigation heretofore or hereafter made by Beneficiary or on its behalf. On
the date of any Securitization, on not less than three days’ prior written
notice, Trustor shall deliver to Beneficiary a certification (x) confirming
that all of the representations contained in this Deed of Trust and the other
Loan Documents are true and correct as of the date of such Securitization, or
(y) otherwise specifying any changes in or qualifications to such
representations as of such date as may be necessary to make such
representations consistent with the facts as they exist on such date.


 


2.               Insurance.  Trustor, at its sole cost and expense, for the mutual benefit of
Trustor and Beneficiary, shall obtain and maintain during the entire term of
this Deed of Trust (the “Term”) the
following policies of insurance:


 


(a)                                  All Risk or Special Causes of Loss Property Form including
Business Interruption.


 


(i)                                     Comprehensive all risk insurance (including,
without limitation, coverage against riot and civil commotion, vandalism,
malicious mischief, water, mold (based on a covered peril), fire, burglary,
theft and terrorism) on the Improvements and all other insurable portions of
the Trust Property and in each case (A) insuring against any peril now or
hereafter included within the classification “Special Form Cause of Loss”,
(B) in an amount equal to 100% of the “Full Replacement Cost,” (C) containing an agreed
amount endorsement with respect to the Improvements, Equipment and all other
insurable portions of the Trust Property waiving all co-insurance provisions,
and (D) providing that the deductible shall not exceed an amount
acceptable to Beneficiary and no larger than is customary for similar
properties in the geographic market in which the Trust Property is located and
in any event no larger than $250,000 unless otherwise agreed to in writing by
Beneficiary. For the purposes of this Deed of Trust the term “Full
Replacement Cost” means
the actual replacement cost of the Improvements and Equipment (without taking
into account any depreciation, and exclusive of excavations, footings and
foundations, landscaping and paving) determined annually by an insurer, a
recognized independent insurance broker or an independent appraiser selected
and paid by Trustor and in no event less than the coverage required pursuant to
the terms of any Lease.


 


(ii)                                  Business income interruption insurance (A) with
loss payable to Beneficiary, (B) covering losses of income and Rents
derived from the Premises and Improvements resulting from any risk or casualty
required to be insured against under subparagraph (a)(i) of this Paragraph
2, (C) containing an extended period of indemnity endorsement
which provides that after the physical loss to the Improvements and all other


 


10





















 


insurable portions of the Trust Property have been repaired, the
continued loss of income will be insured until such income either returns to
the same level it was at prior to the loss, or the expiration of eighteen (18)
months from the date the Trust Property is repaired or replaced and operations
resumed, whichever first occurs, and notwithstanding that the policy may expire
prior to the end of such period, and (D) in an amount equal to one hundred
percent (100%) of the projected gross income from the Trust Property for a
period of eighteen (18) months. The amount of such business income insurance
shall be determined by Beneficiary prior to the date hereof and at least once
each year thereafter based on Trustor’s reasonable estimate of the gross income
from the Trust Property for the succeeding eighteen (18) month period. All
insurance proceeds payable to Beneficiary pursuant to this Subparagraph 2(a)(ii) shall
be held by Beneficiary and, subject to Paragraphs 3 and 4, shall be
applied to the Debt and/or disbursed to Trustor for payment of the costs and
expenses to maintain and operate the Premises and Improvements in such amounts
and at such times as Beneficiary may determine; provided, however,
that nothing herein contained shall be deemed to relieve Trustor of its
obligation to pay the Debt on the respective dates of payment provided for in
the Note except to the extent such amounts are actually paid out of the
proceeds of such business income insurance. The perils covered by this
insurance shall be the same as those accepted on the real property, including
flood and earthquake, as necessary. This coverage shall be written on the same
basis as the property policy stated in Subparagraph 2(a)(i) above.


 


(iii)                               The policy of insurance required pursuant to Subparagraph
2(a)(i) above shall contain Demolition Costs, Increased Cost of
Construction and “Ordinance or Law Coverage” or “Enforcement” endorsements in
amounts satisfactory to Beneficiary, but not to exceed $14,200,000, if any of
the Improvements or the use of the Premises shall at any time constitute legal
non-conforming structures or uses or the ability to rebuild the Improvements is
restricted or prohibited.


 


(iv)                              If windstorm coverage is excluded from the
policy required under Subparagraph 2(a)(i) above, Trustor must
provide separate windstorm insurance in an amount equal to the lesser of the
original principal balance of the Loan and the maximum amount permitted by law,
if the Premises are located in area where Beneficiary requires such insurance.
Deductibles larger than $10,000 are subject to approval by Beneficiary.


 


(v)                                 At all times during which structural
construction, repairs or alterations are being made with respect to the
Improvements unless coverages maintained hereunder provide such coverage: (A) owner’s
contingent or protective liability insurance covering claims not covered by or
under the terms or provisions of the commercial general liability insurance
policy described in Subparagraph 2(b), and (B) the insurance
provided for in Subparagraph 2(a)(i) written on a so-called builder’s
risk completed value form (1) on a non-reporting basis, (2) against
all risks insured against pursuant to Subparagraph 2(a)(i), (3) including
permission to occupy the Improvements, and (4) with an agreed amount
endorsement waiving co-insurance provisions. The amount of such coverage must
be approved by Beneficiary.


 


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(b)                                 Commercial General
Liability/Umbrella Liability.  Commercial general liability insurance
against claims for personal injury, bodily injury, death or property damage occurring
upon, in or about the Premises and Improvements, such insurance (A) to be
on the so-called “occurrence” form containing minimum limits per occurrence of
$1,000,000.00 and $2,000,000.00 in the aggregate, together with excess and/or
umbrella liability in an amount of at least $30,000,000.00; (B) to contain
a liquor liability endorsement if any part of the Premises or Improvements are
covered by a liquor license; (C) to continue at not less than the
aforesaid limit until required to be changed by Beneficiary in writing by
reason of changed economic conditions making such protection inadequate; (D) to
cover at least the following hazards, (1) premises and operations,  (2) products and completed operations on
an  “if any” basis,   (3) independent contractors, (4) blanket
contractual liability for all written and oral contracts, (5) contractual liability
covering the indemnities contained in Paragraph 36 hereof to the extent
the same is available, and (6) all legal liability imposed upon Trustor
and all court costs and attorneys’ fee incurred in connection with the ownership,
operation and maintenance of the Trust Property; and (E) to be without any
deductible.  If Trustor has a
multi-location policy or loan, the coverage must be maintained on a “per-location
basis”.


 


(c)                                  Flood Insurance.  Flood insurance will be required if any portion of the Improvements is
situated in a federally designated “special flood hazard area” (for example, Zones
A and V) as designated by the Federal Emergency Management Agency, or any
successor thereto, as an area having special flood hazards pursuant to the
National Flood Insurance Act of 1968, The Flood Disaster Protection Act of
1973, or the National Flood Insurance Reform Act of 1994, as each may be
amended, (the “Flood Insurance Acts”).
The minimum amount of flood insurance required is the lesser of one hundred
percent (100%) of the Full Replacement Cost (plus business interruption
coverage) or the maximum limit of coverage available for the Improvements under
the Flood Insurance Act.  The maximum
deductible shall be no more than $25,000.


 


(d)                                 Sinkhole, Mine Subsidence
and Earthquake.  Sinkhole, mine subsidence and earthquake
insurance shall be obtained and maintained if in the opinion of a professional
engineer with experience in this professional area there is a foreseeable risk
of loss due to this hazard.  If necessary,
as determined by such engineer, Trustor shall maintain coverage in the full
principal amount of the Loan.


 


(e)                                  Boiler and Machinery
Coverage.  Comprehensive broad form boiler and machinery
insurance (without exclusion for explosion) covering all steam boilers, heating
and air conditioning equipment, high pressure piping, machinery and equipment,
sprinkler systems, pressure vessels, refrigeration equipment and piping, or
similar apparatus now or hereafter installed in the Improvements (including “system
breakdown coverage”) and insuring against loss of occupancy or use arising from
any breakdown, in an amount at least equal to the lesser of the outstanding
principal amount of the Note or $2,000,000.00, with a deductible which shall
not exceed an amount acceptable to Beneficiary and no larger than is customary
for similar properties in the geographic market in which the Trust Property is
located and in any event no larger than $250,000 unless otherwise agreed to in
writing by Beneficiary.


 


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(f)                                    Worker’s Compensation and
Employer’s Liability.  Workers’ compensation, subject to the
statutory limits of the state in which the Premises are located, and employer’s
liability insurance with a limit of at least $1,000,000.00 per accident and per
disease per employee, and $1,000,000.00 for disease aggregate in respect of any
work or operations on or about the Premises and Improvements, or in connection
with the Premises and Improvements or their operation (if applicable).


 


(g)                                 Miscellaneous.  Such other insurance as may from time to time be reasonably required by
Beneficiary in order to protect its interests, including such insurance as may
now be or hereafter becomes available that Beneficiary reasonably deems prudent
in light of then prevailing market or industry practices or applicable law.


 


All
policies of insurance (the “Policies”) required pursuant to this Paragraph 2 (i) shall
be issued by companies approved by Beneficiary and licensed to do business in
the state where the Trust Property is located, with a claims paying ability
rating of “A” or its equivalent by Standard & Poor’s Ratings and Moody’s
Investors Services, Inc. and a rating of “A: IX” or better in the current
Best’s Insurance Reports, (ii) with respect to the liability insurance
required to be carried under Paragraphs 2(a)(v)(A) and 2(b),
shall name Beneficiary and its successors and/or assigns as additional
insureds, (iii) with respect to casualty insurance policies, shall contain
a non-contributory standard Beneficiary clause and a lender’s loss payable
endorsement, or their equivalents, naming Beneficiary as the person to which
all payments made by such insurance company shall be paid, and with respect to
rental or business interruption insurance, shall name Beneficiary and its
successors and assigns as loss payee, (iv) shall contain a waiver of
subrogation against Beneficiary, (v) shall be maintained throughout the
Term without cost to Beneficiary, (vi) shall be assigned to Beneficiary, (vii) on
or prior to the date hereof, Trustor shall deliver to Beneficiary either
certified copies of the Policies in effect on the date hereof (the “Current
Policies”) or ACORD Form 25-S, Certificate of Liability Insurance, and
ACORD Form 28, Evidence of Commercial Property Insurance (the “ACORD
Certificates”) with respect to the Current Policies (and each ACORD Certificate
must specify the Beneficiary, loss payee and additional insured status and/or
waivers of subrogation, state the amounts of all deductibles and self-insured
retentions, if any, set forth notice requirements for cancellation, material
change, or non-renewal of insurance and be accompanied by copies of all
required endorsements, provided that Trustor shall deliver to Beneficiary
certified copies of the Current Policies not more than thirty (30) days after
the date hereof; (viii) at least fifteen (15) days prior to the expiration
of the Policies, Trustor shall deliver to Beneficiary either the original
policies (or copies of the same certified by the issuers thereof) issued in
renewal of each of the expiring Policies or ACORD Certificates with respect
thereto, provided that Trustor shall deliver to Beneficiary the original
policies (or copies of the same certified by the issuers thereof) issued in
renewal of the expired Policies not more than thirty (30) days after the
expiration of the subject Policies or upon actual issuance of the renewal
policies (ix) shall contain such provisions as Beneficiary deems
reasonably necessary or desirable to protect its interest including, without
limitation, endorsements providing that Beneficiary shall not be liable for the
payment of any of the Insurance Premiums, that neither Trustor, Beneficiary nor
any other party shall be a co-insurer under said Policies, that no act or
negligence of Trustor, or anyone acting for Trustor, or of any tenant under any
Lease or other occupant, or failure to comply with the provisions of any Policy
which might otherwise result in a forfeiture of the insurance or any part
thereof, shall in any way affect the validity or enforceability of the
insurance insofar as Beneficiary is concerned, and that Beneficiary shall
receive at least thirty (30) days prior written notice of any modification,
reduction or cancellation, and (x) shall be satisfactory in form and substance
to Beneficiary and shall be approved by


 


13





















 


Beneficiary
as to amounts, form, risk coverage, deductibles, loss payees and insureds.
Trustor shall pay the premiums for such Policies (the “Insurance Premiums”) as the same become due and payable
and shall furnish to Beneficiary evidence of the renewal of each of the
Policies with receipts for the payment of the Insurance Premiums or other
evidence of such payment reasonably satisfactory to Beneficiary (provided,
however, that Trustor is not required to furnish such receipts for payment of
Insurance Premiums in the event that no Event of Default exists that is then
continuing and Trustor has previously deposited with Beneficiary sufficient
funds to pay all such Insurance Premiums from the Tax and Insurance Impound).
If Trustor does not furnish such evidence and receipts at least thirty (30)
days prior to the expiration of any expiring Policy, then Beneficiary may
procure, but shall not be obligated to procure, such insurance and pay the
Insurance Premiums therefor, and Trustor agrees to reimburse Beneficiary for
the cost of such Insurance Premiums promptly on demand. Trustor covenants and
agrees to promptly forward to Beneficiary a copy of each written notice
received by Trustor of any modification, reduction or cancellation of any of
the Policies or of any of the coverages afforded under any of the Policies.
Within thirty (30) days after request by Beneficiary, Trustor shall obtain such
increases in the amounts of coverage required hereunder as may be reasonably
requested by Beneficiary, taking into consideration changes in the value of
money over time, changes in liability laws, changes in prudent customs and practices,
and the like. The insurance coverages required by this Paragraph 2 may
be effected under a so-called “blanket” insurance policy, which covers other
property in addition to the Trust Property, provided that such blanket policy
(or certificate issued thereunder) shall specify, except in the case of
commercial general liability insurance, the premises address of each building
comprising the Improvements that are covered under such policy and the portion
of the total coverage of such policy that is allocated to the Trust Property.
With respect to all blanket insurance policies, Trustor shall comply with all
other terms and conditions of this Paragraph 2 as if such blanket
policies were “Policies.”


 


3.               Casualty and Condemnation.


 


(a)                                  If the Trust Property shall be damaged or
destroyed, in whole or in part, by fire or other casualty (a “Casualty”) or if Trustor shall have knowledge
of the actual or threatened commencement of any condemnation or eminent domain
proceeding that would affect any portion of the Premises or Improvements (a “Condemnation”), Trustor shall give prompt written notice
thereof to Beneficiary and, with respect to a Condemnation, shall deliver to
Beneficiary copies of any and all papers served in connection with such
Condemnation.


 


(b)                                 Beneficiary may participate in any
proceedings for any taking by any public or quasi-public authority accomplished
through a Condemnation or any transfer made in lieu of or in anticipation of a
Condemnation (which transfer in lieu and Condemnation are collectively referred
to as a “Taking”) to
the extent permitted by law.  Upon
Beneficiary’s written request, Trustor shall deliver to Beneficiary all
instruments requested by it to permit such participation. Trustor shall, at its
expense, diligently prosecute any such proceedings, and shall consult with Beneficiary,
its attorneys and experts, and cooperate with them in the carrying on or
defense of any such proceedings. Trustor shall not make any consent or agree to
a Taking without the prior written consent of Beneficiary in each instance,
which consent shall not be unreasonably withheld or delayed in the case of a
Taking of an insubstantial portion of the Trust Property.


 


(c)                                  Subject to the terms of Paragraph 4
below, all insurance proceeds payable under the Policies and all awards or
payments payable on account of a Taking (“Award”), and
all


 


14





















 


causes of action, claims, compensation, awards and recoveries for any
other damage, injury, or loss or diminution in value of the Trust Property, are
hereby assigned to and shall be paid to Beneficiary. Trustor agrees to execute
and deliver from time to time such further instruments as may be requested by
Beneficiary to confirm the foregoing assignment to Beneficiary. Trustor hereby
irrevocably constitutes and appoints Beneficiary as the attorney-in-fact of
Trustor (which power of attorney shall be irrevocable so long as any of the
Debt is outstanding, shall be deemed coupled with an interest, shall survive
the voluntary or involuntary dissolution of Trustor and shall not be affected
by any disability or incapacity suffered by Trustor subsequent to the date
hereof), with full power of substitution, subject to the terms of Paragraph
4, to settle for, collect and receive all proceeds of insurance and any
Award and any other awards, damages, insurance proceeds, payments or other
compensation from the parties or authorities making the same, to appear in and
prosecute any proceedings therefor and to give receipts and acquittance therefor.


 


(d)                                 Beneficiary shall not be limited to the
interest paid on an Award by the condemning authority but shall be entitled to
receive out of the Award interest at the rate or rates provided in the Note.
Trustor shall cause any Award that is payable to Trustor to be paid directly to
Beneficiary. If the Trust Property is sold, through foreclosure or otherwise,
prior to the receipt by Beneficiary of the Award, Beneficiary shall have the
right, whether or not a deficiency judgment on the Note (to the extent
permitted in the Note or herein) shall have been sought, recovered or denied,
to receive the Award, or a portion thereof, to the extent sufficient to pay the
unpaid portion, if any, of the Debt.


 


(e)                                  The expenses incurred by Beneficiary in the
adjustment and collection of the proceeds of insurance or an Award shall become
part of the Debt and be secured hereby and shall be reimbursed by Trustor to
Beneficiary upon demand or, at Beneficiary’s election, deducted by and
reimbursed to Beneficiary from such proceeds.


 


4.               Use of the Proceeds of Insurance
or Award.


 


(a)                                  In case of loss or damages covered by any of
the Policies and in case of an Award for any Taking, the following provisions
shall apply:


 


(i)                                     In the event of a Casualty or an Award that
does not exceed five percent (5%) of the original principal amount of the Note,
Trustor may settle and adjust any claim without the consent of Beneficiary and
agree with the insurance company or companies or applicable authorities on the
amount to be paid due to the Casualty or Taking, provided that such adjustment
is carried out in a competent and timely manner. In the event of a Casualty or
an Award that does not exceed five percent (5%) of the original principal
amount of the Note, Trustor is hereby authorized to collect and receive any
such insurance proceeds in respect of such Casualty or the proceeds in respect
of such Award.


 


(ii)                                  In the event a Casualty or an Award exceeds
five percent (5%) of the original principal amount of the Note, then and in
that event Beneficiary may settle and adjust any claim, provided, however, that
any final agreement with the insurance company or companies or applicable
authorities on the amount to be paid for the Casualty or Taking shall be
subject to the approval of Trustor as hereinafter provided, such


 


15





















 


approval not to be unreasonably withheld, delayed or
conditioned. In any such case, the proceeds under the Policies or proceeds of
the Award shall be due and payable solely to Beneficiary and held in escrow or
otherwise applied by Beneficiary in accordance with the terms of this Deed of
Trust. Trustor shall have the right to participate in the settlement
discussions with the applicable insurance company or companies or applicable authorities
and Beneficiary shall keep Trustor apprised of all settlement offers and
discussions and the results thereof. Beneficiary shall provide ten (10) Business
Days advance written notice to Trustor of the terms and amount of any proposed
final agreement on any such claim (such proposed final amount, the “Beneficiary Approved Settlement Amount”). If Trustor
disapproves of Beneficiary’s settlement of the claim on such terms and at such
amount, Trustor must furnish written notice of such disapproval (any such
notice, an “Arbitration Notice”) to
Beneficiary within ten (10) Business Days after Trustor’s receipt of
Beneficiary’s written notice, such notice of disapproval by Trustor to state
Trustor’s election to implement the arbitration procedure set forth in this
Paragraph 4 below. Trustor’s failure to furnish notice of disapproval prior to
the expiration of such ten (10) Business Day period shall constitute and
be deemed Trustor’s consent and approval to Beneficiary’s settlement of the
applicable claim for an amount not less than the Beneficiary Approved
Settlement Amount.


 


(iii)                               In the event of a Taking where the Award is
in an aggregate amount less than fifteen percent (15%) of the original
principal balance of the Note and the Taking does not affect any portion of the
Improvements or any portion of the Premises which in Beneficiary’s reasonable
determination is integral to the operation of the Premises and Improvements, or
in the event of a Casualty where the loss is in an aggregate amount less than
twenty-five percent (25%) of the FMV of the Premises and Improvements, and (A) no
Event of Default or an event which with notice and/or the passage of time would
constitute an Event of Default exists, (B) in the reasonable judgment of
Beneficiary (1) the Trust Property can be restored within twelve (12)
months after insurance proceeds or the proceeds of the Award are made available
and not less than six (6) months prior to the stated Maturity Date to a
condition at least equal to the condition thereof that existed prior to the
Casualty or Taking, (2) such restored Trust Property will be such that
income from its operation is reasonably anticipated to be sufficient to pay
operating expenses of the Trust Property and debt service on the Debt in full
with the same coverage ratio considered by Beneficiary in its determination to
make the Loan (such assessment by Beneficiary to include consideration of the
effect of the termination of any Leases due to such Casualty or Taking), (3) Leases
covering in the aggregate not less than sixty-five percent (65%) of the
rentable square footage of the Improvements will be in full force and effect
upon completion of the Repair Work (defined below), (4) all necessary
government approvals will be obtained to allow the rebuilding and reoccupancy
of the Improvements, (5) there are sufficient sums available (through
insurance proceeds, the Award and contributions by Trustor, the full amount of
which shall at Beneficiary’s option have been deposited with Beneficiary) for
the Repair Work (defined below) (including, without limitation, for any
reasonable costs and expenses of Beneficiary to be incurred in administering
the Repair Work) and for payment of the Debt as it becomes due and payable
during the Repair Work, and (C) Trustor shall have delivered to
Beneficiary, at Trustor’s sole cost and expense, an appraisal report in form
and substance


 


16





















 


satisfactory to Beneficiary from an appraiser showing the value of the
Trust Property as proposed to be restored or repaired to be not less than the
appraised value of the Trust Property as of the date of this Deed of Trust,
then, and only then, the proceeds of insurance or of the Award (after
reimbursement of any expenses incurred by Beneficiary) shall be applied in the
manner set forth below to reimburse Trustor for the cost of work of restoring,
repairing, replacing or rebuilding (collectively the “Repair Work”) the Trust Property or the part thereof subject to the
Casualty or Taking. Trustor hereby covenants and agrees to commence and
diligently to prosecute the Repair Work; provided always, that Trustor shall
pay all costs (and if required by Beneficiary, Trustor shall deposit the total
thereof with Beneficiary in advance) of the Repair Work in excess of the net
proceeds of insurance or Award made available pursuant to the terms hereof. As
used in this Paragraph 4, the term “FMV” means the
fair market value of the Premises and Improvements as set forth in the
appraisal relied on by Beneficiary as of the date hereof or any subsequent
Qualifying Appraisal. “Qualifying Appraisal” means an appraisal report of the
Premises and Improvements prepared by an appraiser licensed in Washington, DC
and who has at least five years’ experience in appraising property similar to
the Premises and Improvements in Washington, DC satisfies the criteria for
appraisals that may be relied upon by national banks under applicable Federal
laws, rules and regulation and it otherwise reasonably satisfactory to
Beneficiary


 


(iv)                              Except as provided above in Subparagraph
4(a)(iii), in the event of any Casualty or Taking Beneficiary may elect in
its absolute sole discretion and without regard to the adequacy of the security
for the Debt, to (A) apply the proceeds of insurance collected upon any
Casualty or Award collected upon any Taking to the payment of the Debt, with or
without accelerating the Maturity Date of the Note and declaring the entire
outstanding Debt to be immediately due and payable, or (B) hold the
insurance proceeds or Award proceeds and make them available to Trustor for the
cost of the Repair Work in the manner set forth below. If Beneficiary elects
under this subparagraph to apply the proceeds of insurance or Award to the
payment of the Debt, such proceeds shall be applied on the first Payment Date
following such election to the prepayment of the Loan and shall be accompanied
by interest through the end of the applicable Interest Accrual Period
(calculated as if the amount prepaid were outstanding for the entire Interest
Accrual Period) If the Note has been componentized into multiple Note
Components, all prepayments of the Loan made in accordance with this
subparagraph shall be applied to the Note Components in ascending order of
interest rate (i.e., first to the Note Component with the lowest
Interest Rate until its outstanding principal balance has been reduced to zero,
then to the Note Component with the second lowest Interest Rate until its
outstanding principal balance has been reduced to zero, and so on).


 


(v)                                 In the event Trustor is either entitled to
disbursements from the insurance proceeds or Award proceeds held by Beneficiary
or Beneficiary elects to make such proceeds available to Trustor for the Repair
Work, such proceeds shall be disbursed to Trustor for costs and expenses
incurred by Trustor for the Repair Work following (A) the receipt by
Beneficiary of a written request from Trustor for disbursement and a
certification by Trustor to Beneficiary that the applicable item of Repair Work
has been completed, (B) the delivery to Beneficiary of invoices, receipts
or other evidence


 


17





















 


verifying the cost of performing the Repair Work,
and (C) for disbursement requests in excess of $10,000.00 with respect to
any single item of Repair Work, or for any single item of Repair Work that is
structural in nature, delivery to Beneficiary of (1) affidavits, lien
waivers or other evidence reasonably satisfactory to Beneficiary showing that
all materialmen, laborers, subcontractors and any other parties who might or
could claim statutory or common law liens and who are furnishing or have
furnished material or labor to the Trust Property have been paid all amounts
due for labor and materials furnished to the Trust Property, (2) a
certification from an inspecting architect or other third party acceptable to
Beneficiary describing the completed Repair Work and verifying its completion
and value, and (3) a new (or amended) certificate of occupancy for the
portion of the Improvements covered by such Repair Work, if said new
certificate of occupancy is required by law, or a certification by Trustor that
no new certificate of occupancy is required by law. Beneficiary shall not be
required to make any such advances more frequently than one time in any
calendar month. Beneficiary may, in any event, require that all plans and
specifications for the Repair Work be submitted to and approved by Beneficiary
prior to commencement of the Repair Work, which approval shall not be
unreasonably withheld, delayed or conditioned. In no event shall Beneficiary
assume any duty or obligation for the adequacy, form or content of any such
plans and specifications, or for the performance, quality or workmanship of any
Repair Work. With respect to disbursements to be made by Beneficiary, no
payment made prior to the final completion of the Repair Work shall exceed
ninety percent (90%) of the value of the Repair Work performed from time to
time; funds other than proceeds of insurance or the Award shall be disbursed
prior to disbursement of such proceeds; and at all times, the undisbursed
balance of such proceeds remaining in the hands of Beneficiary, together with
funds deposited for that purpose or irrevocably committed to the satisfaction
of Beneficiary by or on behalf of Trustor for that purpose, shall be at least
sufficient in the reasonable judgment of Beneficiary to pay for the cost of
completion of the Repair Work, free and clear of all liens or claims for lien.
Any surplus which may remain out of the proceeds of insurance or Award held by
Beneficiary after payment of the costs of the Repair Work shall, in the sole
and absolute discretion of Beneficiary, be retained by Beneficiary and applied
to payment of the Debt or paid to the party or parties legally entitled to such
surplus.


 


(vi)                              If Trustor delivers an Arbitration Notice to
Beneficiary, Trustor and Beneficiary shall, within five (5) Business Days
after Beneficiary’s receipt of any such notice, jointly designate an
independent and unaffiliated individual who has not less than ten (10) years
experience with respect to settlement of claims resulting from casualties in
respect of properties similar to the Premises and Improvements. Not later than
five (5) Business Days after such joint designation of such individual,
each of Trustor and Beneficiary shall submit to such individual its separate
determinations of the commercially reasonable settlement amount for the
applicable Casualty together with any documentation and other backup therefor
and shall simultaneously therewith provide a copy of such submission to the
other party. The individual so appointed shall review the applicable
submissions and within ten (10) days after such individual’s designation
select one of the submitted settlement amounts as more accurately reflective of
the commercially reasonable settlement amount. Notice of such selection shall
be furnished


 


18





















 


to Trustor and Beneficiary by the applicable individual prior to the
expiration of such ten-day period. Upon such selection, Beneficiary shall be
authorized to settle the applicable claim for an amount not less than the
settlement amount so selected without any further right of consent of Trustor.


 


(vii)                           In the event that Trustor and Beneficiary are
unable to agree on one individual to act as arbitrator within the five (5) Business
Day period following Beneficiary’s receipt of the Arbitration Notice as
contemplated under subparagraph (vii) above, then, in such case, the
procedure set forth in this subparagraph (viii) shall be observed in lieu
thereof. Not later than five (5) Business Days after Beneficiary’s receipt
of the applicable notice to arbitrate, Trustor and Beneficiary shall each
designate an independent and unaffiliated individual who has not less than ten (10) years
experience with respect to settlement of claims resulting from casualties in
respect of properties similar to the Premises and Improvements and notify the
other party of such appointment by identifying the appointee. Not later than
five (5) Business Days after both arbitrators are appointed, the two
selected arbitrators shall select a third arbitrator who shall also be an
independent and unaffiliated individual who has not less than ten (10) years
experience with respect to settlement of claims resulting from casualties in
respect of properties similar to the Premises and Improvements, such selection
to take place within five (5) Business Days after such arbitrator’s
appointment. Trustor and Beneficiary shall submit to such third arbitrator
their separate determinations of the commercially reasonable settlement amount
together with any documentation and other backup therefor and shall
simultaneously therewith provide a copy of such submission to the other party.
The third arbitrator so appointed shall review the applicable submissions and
within ten (10) days after such individual’s designation select one of the
submitted settlement amounts as more accurately reflective of the commercially
reasonable settlement amount. Notice of such selection shall be furnished to
Trustor and Beneficiary by the applicable individual prior to the expiration of
such ten-day period. Upon such selection, Beneficiary shall be authorized to
settle the applicable claim for an amount not less than the settlement amount
so selected without any further right of consent of Trustor.


 


(viii)                        Time shall be of the essence with respect to
the performance of any and all rights and obligations under this Paragraph 4.
The decisions of the arbitrator(s), if any, engaged under this Paragraph 4,
shall be final and binding and may not be appealed to any court of competent
jurisdiction or otherwise except upon a claim of fraud or corruption. All of
the costs and expenses of the arbitrator(s), if any, engaged under this Paragraph
4, shall be the sole responsibility of Trustor.


 


(ix)                                Notwithstanding anything to the contrary
contained herein, the proceeds of insurance or Award disbursed to Trustor in
accordance with the terms and provisions of this Deed of Trust shall be reduced
by the reasonable costs (if any) incurred by Beneficiary in the adjustment and
collection thereof and in the reasonable costs incurred by Beneficiary of
paying out such proceeds (including, without limitation, reasonable attorneys’
fees and costs paid to third parties for inspecting the Repair Work and
reviewing the plans and specifications therefor).


 


19





















 


(b)                                 If Trustor undertakes the Repair Work,
Trustor shall promptly and diligently, at Trustor’s sole cost and expense and
regardless of whether the insurance proceeds or Award, as appropriate, shall be
sufficient for the purpose, complete the Repair Work to restore the Trust Property
as nearly as possible to its value, condition and character immediately prior
to the Casualty or Taking in accordance with the foregoing provisions.


 


(c)                                  Any reduction in the Debt resulting from
Beneficiary’s application of any sums received by it under this Paragraph 4
shall take effect only when Beneficiary actually receives such sums and elects
to apply such sums to the Debt and, in any event, the unpaid portion of the Debt
shall remain in full force and effect and Trustor shall not be excused in the
payment thereof. Partial payments received by Beneficiary, as described in the
preceding sentence, shall be applied against the Note consistent with the
prepayment provisions described therein for casualty or condemnation proceeds.


 


5.               Tax and Insurance Impound.  On each Payment Date, Trustor shall pay to Beneficiary an amount equal
to (a) one-twelfth of the Taxes that Beneficiary estimates will be payable
during the next ensuing twelve (12) months in order to accumulate with
Beneficiary sufficient funds to pay all such Taxes at least thirty (30) days
prior to their respective due dates, and (b) one-twelfth of the Insurance
Premiums that Beneficiary estimates will be payable for the renewal of the
coverage afforded by the Policies upon the expiration thereof in order to
accumulate with Beneficiary sufficient funds to pay all such Insurance Premiums
at least thirty (30) days prior to the expiration of the Policies. Such amounts
shall be deposited to a subaccount maintained by the Cash Management Bank
pursuant to and in accordance with the Cash Management Agreement, or, at
Beneficiary’s option, an account maintained by Beneficiary or its agent (the
subaccount or other account into which said amounts in (a) and (b) above
shall be deposited is hereinafter called the “Tax and Insurance Impound”).  Trustor’s
obligation to make the monthly payment to Beneficiary shall be satisfied by,
and to the extent of, monies collected by the Cash Management Bank (as such
term is defined in Paragraph 53 below) and deposited into the Tax and Insurance
Impound in accordance with the priority for payment of the Peg Balance (as such
term is defined in Paragraph 53 below). 
Trustor agrees to notify Beneficiary immediately of any changes to the amounts,
schedules and instructions for payment of any Taxes and Insurance Premiums of
which it has or obtains knowledge and authorizes Beneficiary or its agent to
obtain the bills for Taxes and Other Charges directly from the appropriate
taxing authority. Beneficiary will apply funds held in the Tax and Insurance Impound
in accordance with the Cash Management Agreement.  In making any payment relating to the Tax and
Insurance Impound, Beneficiary may do so according to any bill, statement or
estimate procured from the appropriate public office (with respect to Taxes) or
insurer or agent (with respect to Insurance Premiums), without inquiry into the
accuracy of such bill, statement or estimate or into the validity of any tax,
assessment, sale, forfeiture, tax lien or title or claim thereof.  If Beneficiary so elects at any time, Trustor
shall provide, at Trustor’s expense, a tax service contract for the Term issued
by a tax reporting agency acceptable to Beneficiary.  If Beneficiary does not so elect, Trustor
shall reimburse Beneficiary for the cost of making annual tax searches
throughout the Term.


 


6.               Escrow Funds.


 


(a)                                  On each Payment Date, Trustor shall pay
$3,458.71 to Beneficiary to be deposited to a subaccount maintained by the Cash
Management Bank pursuant to and in accordance with the Cash Management
Agreement, or, at Beneficiary’s option, an account maintained by Beneficiary or
its agent (the subaccount or other account into which such deposit


 


20





















 


shall be deposited is hereinafter called the “Replacement
Escrow Fund). Trustor’s
obligation to make the monthly payment to Beneficiary shall be satisfied by,
and to the extent of, monies collected in by the Cash Management Bank and
deposited into the Replacement Escrow Fund in accordance with the priority of
payment of the Peg Balance. Trustor hereby pledges to Beneficiary any and all
monies now or hereafter deposited in the Replacement Escrow Fund as additional
security for the payment of the Debt.


 


Provided that no Event of
Default has occurred and is continuing, Beneficiary shall make disbursements
from the Replacement Escrow Fund as requested, in writing, by Trustor, and
approved by Beneficiary in its reasonable discretion, on a quarterly basis in
increments of no less than $5,000 upon delivery by Trustor of copies of paid
invoices (or with respect to requests in excess of $10,000, unpaid invoices)
for the amounts requested, a certification from the Trustor stating: (a) the
nature and type of the related replacement or repair, (b) that the related
replacement or repair (or portion thereof for which disbursements have been received
or requested) has been completed in a good and workmanlike manner and (c) that
the related replacement or repair has been paid for in full (or, with respect
to requests in excess of $10,000, will be paid for in full from the requested
disbursement) and, if required by Beneficiary, lien waivers and releases from
all parties furnishing materials and/or services in connection with the
requested payment. Any disbursement by Beneficiary hereunder for a capital item
in excess of $10,000 and not already paid for by Trustor, shall be made by
joint check, payable to Trustor and the applicable contractor, supplier,
materialman, mechanic, subcontractor or other party to whom payment is due in
connection with such capital item. Beneficiary may require an inspection of the
Trust Property at Trustor’s expense prior to making a disbursement in order to
verify completion of replacements and repairs (or portion thereof for which
disbursements have been received or requested) for which reimbursement is
sought. If Beneficiary elects the option to maintain the Replacement Escrow
Fund, it shall be held in an interest bearing account in Beneficiary’s name at
a financial institution selected by Beneficiary in its sole discretion. All
earnings or interest on the Replacement Escrow Fund shall be and become a part
of such Replacement Escrow Fund and shall be disbursed as provided in this Paragraph
6(a). All costs and expenses incurred by Beneficiary in establishing and
maintaining such interest bearing account shall be paid by Trustor, Beneficiary
may charge such costs and expenses directly against the Replacement Escrow
Fund, and Trustor shall thereafter promptly pay to Beneficiary for deposit into
the Replacement Escrow Fund the full amount of such charges and expenses. Upon
the occurrence and during the continuance of an Event of Default, Beneficiary
may apply any sums then present in the Replacement Escrow Fund to the payment
of the Debt in any order in its sole discretion. The Replacement Escrow Fund
shall not constitute a trust fund and may be commingled with other monies held
by Beneficiary. Following the delivery and recording of a satisfaction,
release, reconveyance or discharge of this Deed of Trust duly executed by
Beneficiary, any funds remaining on deposit in the Replacement Escrow Fund will
be disbursed to Trustor.


 


(b) On or before September 15,
2005, Trustor shall pay to Beneficiary $5,033,599.00 (which, as of the date
hereof, is the unexpended amount of the tenant improvement allowance (the “DOJ
Allowance”) under
Standard Form 2 Lease Agreement between AGL Investments No. 17
Limited Partnership, L.L.L.P. as Landlord and the United States of America as
tenant dated December 21, 2004, as amended, for 235,746 rentable square
feet (the “DOJ Lease”)), which
payment to Beneficiary shall be deposited to a subaccount maintained by the
Cash Management


 


21





















 


Bank pursuant to and in accordance with the Cash Management Agreement,
or, at Beneficiary’s election, an account maintained by Beneficiary or its
agent, as a reserve for tenant improvement and leasing commission obligations
(the subaccount or other account into which such deposit shall be deposited is
hereinafter called the “DOJ Allowance Fund”). Trustor hereby
pledges to Beneficiary any and all monies now or hereafter deposited in the DOJ
Allowance Fund as additional security for the payment of the Debt. Provided
that no Event of Default has occurred and is continuing, Beneficiary shall make
an initial disbursement to Trustor from the DOJ Allowance Fund of the amount
then on deposit in the DOJ Allowance Fund which is in excess of then remaining
DOJ Allowance amount (as demonstrated by Trustor by evidence reasonably
satisfactory to Beneficiary). Thereafter, provided that no Event of Default has
occurred and is continuing, Beneficiary shall make periodic disbursements to
Trustor from the DOJ Allowance Fund in the amounts and at the times Trustor is
obligated to expend or has expended such amounts under the DOJ Lease but in
increments of no less than $1,000.00. Such disbursements shall be made upon
delivery by Trustor of copies of paid invoices (or with respect to requests in
excess of $10,000.00, unpaid invoices) for the amounts requested, a
certification from Trustor stating (i) the nature and type of the related
improvement, (ii) that the related improvement (or portion thereof for
which disbursements have been received or requested) has been completed in a
good and workmanlike manner and (iii) that the related improvement (or
portion thereof for which disbursements have been received or requested) has
been paid in full (or, with respect to requests in excess of $10,000.00, will
be paid for in full from the requested disbursement) and, if required by
Beneficiary, lien waivers and releases from all parties furnishing materials
and/or services in connection with the requested payment. Any disbursement by
Beneficiary hereunder in excess of $10,000.00 and not already paid for by
Trustor, may be made in Beneficiary’s reasonable discretion by joint check,
payable to Trustor and the applicable contractor, supplier, materialman,
mechanic, subcontractor, broker or other party to whom payment is due in
connection with such disbursement. Beneficiary may require an inspection of the
Trust Property at Trustor’s expense prior to making a disbursement in order to
verify completion of improvements (or portion thereof for which disbursements
have been received or requested) for which reimbursement is sought. If there is
a balance remaining in the DOJ Allowance Fund after completion of the tenant
improvement work under the DOJ Lease for which The United States of America is
entitled to a credit against its rental, such remaining balance shall be
transferred to the Rent Credit Escrow Fund (defined below) and shall be
disbursed to Trustor in accordance with the provisions of Paragraph 6(c).
If Beneficiary exercises the option itself to maintain the DOJ Allowance Fund,
it shall be held in an interest bearing account in Beneficiary’s name at a
financial institution selected by Beneficiary in its sole discretion. All
earnings or interest on the DOJ Allowance Fund shall be and become a part of
such DOJ Allowance Fund and shall be disbursed as provided in this Paragraph
6(b). All costs and expenses incurred by Beneficiary in establishing and
maintaining such interest bearing account shall be paid by Trustor, Beneficiary
may charge such costs and expenses directly against the DOJ Allowance Fund, and
Trustor shall thereafter promptly pay to Beneficiary for deposit into the DOJ
Allowance Fund the full amount of such charges and expenses. Upon the
occurrence and during the continuance of an Event of Default, Beneficiary may
apply any sums then present in the DOJ Allowance Fund to the payment of the
Debt in any order in its sole discretion. The DOJ Allowance Fund shall not
constitute a trust fund and may be commingled with other monies held by
Beneficiary. Following the delivery and recording of a satisfaction, release,
reconveyance or discharge of this Deed of


 


22





















 


Trust duly executed by Beneficiary, any funds remaining on deposit in
the DOJ Allowance Fund will be disbursed to Trustor.


 


(c)                                  Concurrently with the funding of the Loan,
Trustor shall pay to Beneficiary $464,016.00, the amount of the rent credit due
the United States of America as tenant under the DOJ Lease, for deposit into an
account maintained by Beneficiary or its agent (the “Rent Credit Escrow Fund”). Trustor hereby pledges to
Beneficiary any and all monies now or hereafter deposited in the Rent Credit
Escrow Fund as additional security for the payment of the Debt. Provided that
no Event of Default has occurred and is continuing, Beneficiary shall make disbursements
to Trustor from the Rent Credit Escrow Fund as and when reduced rent under the DOJ
Lease is paid, in the amount of the credit or rent reduction reflected by the
rent payment. The Rent Credit Escrow Fund shall be held in an interest bearing
account in Beneficiary’s name at a financial institution selected by
Beneficiary in its sole discretion. All earnings or interest on the Rent Credit
Escrow Fund shall be and become a part of such DOJ Allowance Fund and shall be disbursed
as provided in this Paragraph 6(c). 
All costs and expenses incurred by Beneficiary in establishing and
maintaining such interest bearing account shall be paid by Trustor, Beneficiary
may charge such costs and expenses directly against the Rent Credit Escrow
Fund, and Trustor shall thereafter promptly pay to Beneficiary for deposit into
the Rent Credit Escrow Fund the full amount of such charges and expenses. Upon
the occurrence and during the continuance of an Event of Default, Beneficiary
may apply any sums then present in the Rent Credit Escrow Fund to the payment
of the Debt in any order in its sole discretion. The Rent Credit Escrow Fund
shall not constitute a trust fund and may be commingled with other monies held
by Beneficiary. Any funds remaining on deposit in the Rent Credit Escrow Fund
will be disbursed to Trustor on the earlier to occur of expiration of the term
of the DOJ Lease or the delivery and recording of a satisfaction, release,
reconveyance or discharge of this Deed of Trust duly executed by Beneficiary.


 


(d)                                 Trustor shall pay to Beneficiary all funds
received by Trustor from tenants in connection with the cancellation of any
Leases (hereinafter “Cancelled Lease”),
including, but not limited to, any cancellation fees, penalties, tenant
improvements, leasing commissions or other charges (together the “Cancellation
Payments”), and
such funds shall be deposited to a subaccount maintained by the Cash Management
Bank pursuant to and in accordance with the Cash Management Agreement, or, at
Beneficiary’s election, an account maintained by Beneficiary or its agent, as a
reserve for tenant improvement and leasing commissions in respect of the
Cancelled Lease premises (the subaccount or other account into which such
deposit shall be deposited is hereinafter called the “Cancelled Lease Escrow Fund”).  Notwithstanding
the foregoing, at its sole election Mortgagee may cause all or any portion of
the Cancellation Payments to be deposited into the Rollover Escrow Fund
(hereinafter defined) and disbursed, in accordance with the terms governing the
Rollover Escrow Fund, for expenses relating to the re-leasing of the space with
respect to which they were paid provided that upon execution of a New Lease
(hereafter defined) Beneficiary shall cause all or a part of the balance in the
Cancelled Lease Escrow Fund to be deposited (to the extent funds are available
therefor) into the Rollover Escrow Fund and held pursuant to the terms thereof
in an amount equal to the leasing commissions, tenant improvement and other
allowances and other costs related to the New Lease required to be paid by the
landlord thereunder. Trustor hereby pledges to Beneficiary any and all monies
now or hereafter deposited in the Cancelled Lease Escrow Fund as additional
security for


 


23





















 


the payment of the Debt. Provided that no Event of Default has occurred
and is continuing, Beneficiary shall make disbursements from the Cancelled
Lease Escrow Fund as follows: (i) the entire amount on deposit in the
Cancelled Lease Escrow Fund shall be disbursed to Trustor following receipt by
Beneficiary of a fully executed Lease covering the space that had been covered
by the Cancelled Lease and which otherwise complies with the requirements for
Leases entered into by Trustor in accordance with Paragraph 7 below and
the separate Assignment of Leases and Rents from Trustor to Beneficiary (a “New Lease”), a signed tenant estoppel certificate in form
and substance reasonably satisfactory to Beneficiary from the tenant under the
New Lease to the effect that (1) Trustor has delivered possession to such
tenant of all of the space covered by such New Lease, (2) all tenant
improvements obligations of landlord under such New Lease have been satisfied, (3) tenant
knows of no defaults on such landlord’s part under such New Lease, and (4) tenant
is paying rent as required under such New Lease without setoff or deduction,
and (ii) prior to the time, if ever, that Trustor satisfies the conditions
of clause (i) immediately preceding, Beneficiary shall disburse to Trustor
on the first day of each calendar month commencing the first full calendar
month after Beneficiary’s receipt from Trustor of the Cancellation Payments an
amount equal to the monthly base rental payment that was last payable under the
Cancelled Lease, which disbursement shall continue each month until the earlier
of either the disbursement of all funds in the Cancelled Lease Escrow Fund or
the occurrence of an Event of Default. If Beneficiary elects the option itself
to maintain the Cancelled Lease Escrow Fund, it shall be held in an interest bearing
account in Beneficiary’s name at a financial institution selected by
Beneficiary in its sole discretion. All earnings or interest on the Cancelled
Lease Escrow Fund shall be and become a part of such Cancelled Lease Escrow
Fund and shall be disbursed as provided in this Paragraph 6(d).  All costs and expenses charged by the
financial institution where the Cancelled Lease Escrow Fund account is held
shall be paid by Trustor; Beneficiary may charge such costs and expenses
directly against the Cancelled Lease Escrow Fund; and Trustor shall thereafter
pay to Beneficiary on demand for deposit into the Cancelled Lease Escrow Fund
the full amount of such costs and expenses. Upon the occurrence and during the
continuance of an Event of Default, Beneficiary may apply any sums then present
in the Cancelled Lease Escrow Fund to the payment of the Debt in any order in
its sole discretion. The Cancelled Lease Escrow Fund shall not constitute a
trust fund and may be commingled with other monies held by Beneficiary. Following
the delivery and recording of a satisfaction, release, reconveyance or
discharge of this Deed of Trust duly executed by Beneficiary, any funds
remaining on deposit in the Cancelled Lease Escrow Fund will be disbursed to
Trustor.


 


(e)                                  The subaccount maintained by the Cash
Management Bank pursuant to and in accordance with the Cash Management
Agreement, or, at Beneficiary’s election, an account maintained by Beneficiary
or its agent, as a reserve for tenant improvement and leasing commission
obligations for monies paid over as provided in Paragraph 6(d) above
is hereinafter called the “Rollover Escrow Fund”). Trustor
hereby pledges to Beneficiary any and all monies now or hereafter deposited in
the Rollover Escrow Fund as additional security for the payment of the Debt.
Provided that no Event of Default has occurred and is continuing, Beneficiary
shall make disbursements from the Rollover Escrow Fund for expenses reasonably
incurred by Trustor for new Leases entered into by Trustor in accordance with the
provisions of Paragraph 7 below. All such expenses shall be approved by
Beneficiary in its reasonable discretion. Provided that no Event of Default
shall exist and remain uncured, Beneficiary shall make disbursements as
requested by Trustor on a monthly basis in increments of no less than $1,000.00
upon delivery by


 


24





















 


Trustor of copies of paid invoices (or with respect to requests in
excess of $10,000.00, unpaid invoices) for the amounts requested for tenant
improvements and leasing commissions, the newly executed Lease, extension,
renewal, or modification, a certification for tenant improvement disbursements
from the Trustor stating (i) the nature and type of the related
improvement, (ii) that the related improvement (or portion thereof for
which disbursements have been received or requested) has been completed in a
good and workmanlike manner and (iii) that the related improvement (or
portion thereof for which disbursements have been received or requested) has
been paid in full (or, with respect to requests in excess of $10,000.00, will
be paid for in full from the requested disbursement) or a certification for
leasing commission disbursements stating that such leasing commission has been
paid in full (or, with respect to requests in excess of $10,000.00, will be
paid for in full from the requested disbursement) and, if required by
Beneficiary, lien waivers and releases from all parties furnishing materials
and/or services in connection with the requested payment. Any disbursement by
Beneficiary hereunder in excess of $10,000.00 and not already paid for by
Trustor, may be made in Beneficiary’s reasonable discretion by joint check,
payable to Trustor and the applicable contractor, supplier, materialman, mechanic,
subcontractor, broker or other party to whom payment is due in connection with
such disbursement. Beneficiary may require an inspection of the Trust Property
at Trustor’s expense prior to making a disbursement in order to verify
completion of improvements (or portion thereof for which disbursements have
been received or requested) for which reimbursement is sought. If Beneficiary
exercises the option itself to maintain the Rollover Escrow Fund, it shall be
held in an interest bearing account in Beneficiary’s name at a financial
institution selected by Beneficiary in its sole discretion. All earnings or
interest on the Rollover Escrow Fund shall be and become a part of such
Rollover Escrow Fund and shall be disbursed as provided in this Paragraph
6(e). All costs and expenses incurred by Beneficiary in establishing and
maintaining such interest bearing account shall be paid by Trustor, Beneficiary
may charge such costs and expenses directly against the Rollover Escrow Fund,
and Trustor shall thereafter promptly pay to Beneficiary for deposit into the
Rollover Escrow Fund the full amount of such charges and expenses. Upon the
occurrence and during the continuance of an Event of Default, Beneficiary may
apply any sums then present in the Rollover Escrow Fund to the payment of the
Debt in any order in its sole discretion. The Rollover Escrow Fund shall not
constitute a trust fund and may be commingled with other monies held by
Beneficiary. Following the delivery and recording of a satisfaction, release,
reconveyance or discharge of this Deed of Trust duly executed by Beneficiary,
any funds remaining on deposit in the Rollover Escrow Fund will be disbursed to
Trustor.


 


7.               Leases and Rents.


 


(a)                                  For Ten Dollars ($10.00) and other good and
valuable consideration, including the indebtedness evidenced by the Note, the
receipt and sufficiency of which are hereby acknowledged and confessed, Trustor
has absolutely GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents
does absolutely and unconditionally GRANT, BARGAIN, SELL, and CONVEY the Rents
unto Beneficiary, in order to provide a source of future payment of the Debt
subject only to the permitted exceptions applicable thereto and the License
(herein defined), it being the intention of Trustor and Beneficiary that this
conveyance be presently and immediately effective; TO HAVE AND TO HOLD the
Rents unto Beneficiary, forever, and Trustor does hereby bind itself, its
successors and assigns, to warrant and forever defend the title to the Rents
unto Beneficiary against every person whomsoever lawfully claiming or to claim
the


 


25





















 


same or any part thereof; provided, however, that if Trustor shall pay
or cause to be paid the Debt as and when the same shall become due and payable
and shall perform and discharge or cause to be performed and discharged the
Obligations on or before the date the same are to be performed and discharged,
then this assignment shall terminate and be of no further force and effect, and
all rights, titles, and interests conveyed pursuant to this assignment of rents
shall become vested in Trustor without the necessity of any further act or
requirement by Trustor, Trustee or Beneficiary.


 


(b)                                 Except as otherwise expressly provided by the
terms of the Cash Management Agreement, Beneficiary hereby grants to Trustor a
limited license (the “License”) subject to termination of the License in accordance with the
applicable terms and provisions of Paragraph 25 hereof, to exercise and
enjoy all incidences of the status of a lessor with respect to the Rents,
including without limitation, the right to collect, demand, sue for, attach,
levy, recover, and receive the Rents, and to give proper receipts, releases,
and acquittances therefor.  Trustor hereby
agrees to receive all Rents and hold the same as a trust fund to be applied,
and to apply the Rents so collected, first to the payment of the Debt, next to
the performance and discharge of the Obligations, and next to the payment of
all expenses associated with the ownership and operation of the Premises and
Improvements.  The agreement of Trustor
to receive and apply Rents as aforesaid shall not be construed as prohibiting
distributions of net cash flow to the holders of direct and indirect interests
in Trustor in the ordinary course of business following payment of the amounts
currently due and owing in respect of the Loan and payment of expenses
associated with the ownership and operation of the Premises and Improvements.
Neither this Assignment nor the receipt of Rents by Beneficiary shall effect a pro
tanto payment of any portion of the Debt, and such Rents shall be
applied as provided in this Paragraph 7. 
Furthermore, and notwithstanding the provisions of this Paragraph 7, no credit shall be given by Beneficiary
for any Rents until the money collected is actually received by Beneficiary,
and no such credit shall be given for any Rents after termination or revocation
of the license (except to the extent, if any, that Rents are actually received
by Beneficiary and applied upon or after said receipt to the Debt), after foreclosure
or other transfer of the Trust Property (or part thereof from which Rents are
derived pursuant to this Deed of Trust) to Beneficiary or any other third
party.


 


(c)                                  Upon receipt from Beneficiary of a Lease Rent
Notice (as defined in Paragraph 25 hereof), each lessee under the Leases
is hereby authorized and directed to pay directly to Beneficiary all Rents
thereafter accruing, and the receipt of Rents by Beneficiary shall be a release
of such lessee to the extent of all amounts so paid.  The receipt by a lessee under the Leases of a
Lease Rent Notice shall be sufficient authorization for such lessee to make all
future payments of Rents directly to Beneficiary and each such lessee shall be
entitled to rely on such Lease Rent Notice and shall have no liability to
Trustor for any Rents paid to Beneficiary after receipt of such Lease Rent
Notice.  Rents so received by Beneficiary
for any period prior to foreclosure under this Deed of Trust or acceptance of a
deed in lieu of such foreclosure shall be applied by Beneficiary to the payment
of the following in such order and priority as Beneficiary shall
determine:  (i) the Debt and all
expenses incident to taking and retaining possession of the Trust Property
and/or collecting Rent as it becomes due and payable and (ii) all expenses
associated with the ownership and operation of the Premises and Improvements.
In no event will this Paragraph 7 reduce the Debt except to the extent,
if any, that Rents are actually received by Beneficiary and applied upon or
after said receipt to the Debt in accordance with the preceding sentence.
Without impairing its rights hereunder, Beneficiary may, at its option, at any
time and


 


26





















 


from time to time, release to Trustor Rents so received by Beneficiary
or any part thereof. As between Trustor and Beneficiary, and any person
claiming through or under Trustor, other than any lessee under the Leases who
has not received a Lease Rent Notice, this Assignment of Rents is intended to
be absolute, unconditional and presently effective (and not an assignment for
additional security), and the Lease Rent Notice hereof is intended solely for
the benefit of each such lessee and shall never inure to the benefit of Trustor
or any person claiming through or under Trustor, other than a lessee who has
not received such notice. It shall never be necessary for Beneficiary to
institute legal proceedings of any kind whatsoever to enforce the provisions of
this Deed of Trust with respect to Rents. TRUSTOR
SHALL HAVE NO RIGHT OR CLAIM AGAINST ANY LESSEE FOR THE PAYMENT OF ANY RENTS TO
BENEFICIARY HEREUNDER, AND TRUSTOR HEREBY INDEMNIFIES AND AGREES TO HOLD FREE
AND HARMLESS EACH LESSEE FROM AND AGAINST ALL LIABILITY, LOSS, COST, DAMAGE OR EXPENSE SUFFERED OR
INCURRED BY SUCH LESSEE BY
REASON OF SUCH LESSEE’S COMPLIANCE
WITH ANY DEMAND FOR PAYMENT OF RENTS MADE BY BENEFICIARY CONTEMPLATED BY THIS
DEED OF TRUST.


 


(d)                                 At any time during which Trustor is receiving
Rents directly from any of the lessees under the Leases, Trustor shall, upon
receipt of written direction from Beneficiary, make demand and/or sue for all
Rents due and payable under one or more Leases, as directed by Beneficiary, as
it becomes due and payable, including Rents which are past due and unpaid.  If Trustor fails to take such action, or at
any time during which Trustor is not receiving Rents directly from lessees
under the Leases, Beneficiary shall have the right (but shall be under no duty)
to demand, collect and sue for, in its own name or in the name of Trustor, all
Rents due and payable under the Leases, as it becomes due and payable,
including Rents which are past due and unpaid.


 


(e)                                  Security deposits of tenants, whether held in
cash or any other form, shall not be commingled with any other funds of Trustor
if to do so would violate applicable law or the term of the Leases.  If in cash, security deposits shall be
deposited by Trustor at such commercial or savings bank or banks as may be
reasonably satisfactory to Beneficiary. 
Any bond or other instrument which Trustor is permitted to hold in lieu
of cash security deposits under any applicable legal requirements shall be
maintained in full force and effect in the full amount of such deposits unless
replaced by cash deposits as hereinabove described, shall be issued by an institution
reasonably satisfactory to Beneficiary, shall, if permitted pursuant to any
legal requirements, name Beneficiary as payee or beneficiary thereunder (or at Beneficiary’s
option, be fully assignable to Beneficiary) and shall, in all respects, comply
with any applicable legal requirements and otherwise be reasonably satisfactory
to Beneficiary.  Trustor shall, upon request,
provide Beneficiary with evidence reasonably satisfactory to Beneficiary of
Trustor’s compliance with the foregoing. 
Whenever an Event of Default has occurred and is continuing, Trustor
shall, upon Beneficiary’s request, if permitted by any applicable legal
requirements, turn over to Beneficiary the security deposits (and any interest
theretofore earned thereon) with respect to all or any portion of the Trust
Property, to be held by Beneficiary subject to the terms of the Leases.


 


27





















 


(f)                                    Trustor covenants and agrees (i) to the
extent reasonably necessary to avoid a Material Adverse Effect, to perform
punctually all obligations and agreements to be performed by it as lessor or
party thereto under any Lease, and under any operating agreement, reciprocal easement
agreement or similar such agreement; (ii) to the extent reasonably
necessary to avoid a Material Adverse Effect, to do all things necessary or
appropriate in the ordinary course of its business to compel performance by
each other party to each of such instruments of such other party’s obligations
and agreements thereunder; (iii) not to collect any of the Rents more than
one (1) month in advance; (iv) not to execute any other assignment of
lessor’s interest in the Leases or the Rents and (v) not to permit any
subletting of any space covered by a Lease or an assignment of the tenant’s
rights under a Lease except in strict accordance with the terms of such Lease. Except
as otherwise permitted hereunder, Trustor shall not give any notice, approval
or consent or exercise any rights under or in respect of any Lease or any of
such other instruments, which action, omission, notice, approval, consent or
exercise of rights would release any tenant or other party from, or reduce any
tenant’s or any other party’s obligations or liabilities under, or would result
in the termination, surrender or assignment of, or the amendment or
modification of in any material adverse respect, or would impair the validity
of, any Lease or any of such other instruments, if any of the foregoing would
result in a Material Adverse Effect, without the prior written consent of
Beneficiary, and any attempt to do any of the foregoing without such consent shall
be of no force and effect.  For purposes
hereof, “Material Adverse Effect” means a material
adverse effect upon (i) the business operations, assets or condition
(financial or otherwise) of Trustor, (ii) the ability of Trustor to
perform, or of Beneficiary to enforce, any material provision of any Loan
Document, or (iii) the value, use or enjoyment of the Trust Property or
the operation thereof.


 


(g)                                 Trustor will promptly deliver to Beneficiary
a copy of any notice from any other party to an operating agreement, reciprocal
easement agreement or similar such agreement, or any tenant under any Lease (other
than any Lease covering a residential dwelling unit or manufactured or mobile
home pad site), in any such case claiming that Trustor is in default in the performance
or observance of any of the terms, covenants or conditions thereof to be
performed or observed by Trustor and Trustor will use commercially reasonable
efforts to provide in each Lease (other than any Lease covering a residential
dwelling unit or manufactured or mobile home pad site) executed after the date
hereof to which Trustor is a party that any tenant delivering any such notice
shall send a copy of such notice directly to Beneficiary.  Following Beneficiary’s written request,
Trustor shall deliver to Beneficiary a duplicate original or certified copy of
each Lease covering any portion of the Premises or Improvements.


 


(h)                                 Trustor shall not enter into any Lease after
the date hereof that would, evaluated alone or in conjunction with any then
existing Leases, result in any Material Adverse Effect of the fair market value,
as of the date such Lease is executed by Trustor, of the Premises or
Improvements. Trustor may enter into any Lease which is not inconsistent with
the provisions of this Paragraph 7 and the other applicable provisions
of this Deed of Trust and the Loan Documents, if any. Each Lease entered into
after the date hereof and each renewal or extension on or after the date hereof
of any Lease (a “Renewal Lease”) shall (i) be
with a tenant whom Trustor has reasonably determined is creditworthy in light
of the financial obligations to be assumed by such tenant under the Lease or
Renewal Lease, (ii) have an initial term of not less than three (3) or
more than ten (10) years, except Leases covering residential dwelling
units, (iii)


 


28





















 


provide for rent and other items to be payable in amounts at least
equal to the fair market rental value (taking into account the type and quality
of the tenant and the space covered by such Lease), as of the date such Lease
or Renewal Lease is executed by Trustor (unless, in the case of a Renewal
Lease, the rent payable during such renewal, or a formula or other method to
compute such rent, is provided for in the original Lease), (iv) not have a
Material Adverse Effect on the value of the Premises and Improvements as a
whole or the ability of Trustor to pay the Debt, (v) constitute an arm’s-length
transaction with a bona fide, independent third-party tenant, (vi) be
expressly subject and subordinate to this Deed of Trust and contain provisions
for the agreement by the tenant thereunder to attorn to Beneficiary and any
purchaser at a foreclosure sale, such attornrnent to be self-executing and
effective upon acquisition of title to the Premises and Improvements by any
purchaser at a foreclosure sale, provided that, if Beneficiary has approved
such Lease, the aforesaid subordination may be conditioned upon Beneficiary
executing a non-disturbance agreement in Beneficiary’s customary form (vii) require
the tenant thereunder to execute and deliver to Trustor an estoppel certificate
addressing the issues set forth in Paragraph 12(b) of this Deed of
Trust, and (viii) be written on the standard form of lease (without any
material changes) approved in writing by Beneficiary (or in the case of any renewal
or extension, on the form of the lease previously executed by such tenant prior
to such renewal or extension) or in the case of a lease where the tenant is the
United States of America or any agency thereof, on the standard form of
Government lease or otherwise approved in writing by Beneficiary. Subject to
the provisions below covering Material Leases, Trustor may, without the consent
of Beneficiary, amend, modify or waive the provisions of any Lease, provided
that such action is in the normal course of Trustor’s business in a manner
which is consistent with sound and customary leasing and management practices
for similar properties in the community in which the Improvements are located,
does not have a Material Adverse Effect upon the value of any of the Premises
and Improvements, and provided further that such Lease, as amended, modified or
waived, is otherwise in compliance with the requirements of this Deed of Trust
and the other Loan Documents, as applicable. Following Beneficiary’s written
request, Trustor shall deliver to Beneficiary a duplicate original or certified
copy of the amendment, modification or waiver. Subject to the provisions below
covering Material Leases, Trustor may terminate or permit the termination of
any Lease or accept surrender of all or any portion of the space demised under
any Lease or acquire any Lease or reduce the rentals reserved under or shorten
the term of any Lease so long as such action is in the normal course of Trustor’s
business in a manner which is consistent with sound and customary leasing and
management practices for similar properties in the community in which the
Improvements are located, and does not materially adversely affect the value of
the Premises and Improvements (taking into account the planned alternative uses
of the space) or the ability of Trustor to pay the Debt. All Leases and Renewal
Leases, and amendments, modifications, terminations or waivers thereof not
meeting the foregoing requirements may not be entered into by Trustor without
the prior written approval of Beneficiary.


 


(i)                                     Trustor shall not enter into any Lease with
an affiliate of Trustor without the prior written consent of Beneficiary.
Trustor shall not enter into any Lease that grants the tenant thereunder a
right or option to purchase all or any portion of the Premises and
Improvements.


 


(j)                                     Notwithstanding anything contained herein to
the contrary, Trustor shall not, without the prior written consent of
Beneficiary, enter into, renew, extend, amend, modify, waive


 


29





















 


any provisions of, terminate, permit the termination
of, or accept surrender of all or any portion of the space demised under, any
Material Lease. The term “Material Lease” shall mean any Lease which (i) when aggregated with
all other Leases at the Trust Property with the same tenant, and assuming the
exercise of all expansion rights and all preferential rights to lease
additional space contained in such Lease, is expected to contribute more than
10% of the base contractual rental revenue of the Trust Property during any 12-month
period (after adjustment to eliminate the effect of free rent periods) or to
cover more than 25,000 rentable square feet, (ii) contains an option or
preferential right to purchase all or any portion of the Trust Property, (iii) is
with an affiliate of Trustor as tenant, or (iv) is entered into during the
continuance of an Event of Default. Nothing in this subparagraph shall prohibit
Trustor from accepting a tenant’s election of a right to extend the term of any
Material Lease existing as of the date hereof or which Material Lease is
subsequently approved by Beneficiary pursuant to the terms hereof if such right
to extend is expressly provided for in such Material Lease, the exercise of
such right is at the sole option of the tenant thereunder and the length of the
extended term and the rental to be paid during the extended term are fixed
amounts or formula amounts set forth in such Material Lease.


 


(k)                                  Any Lease, Renewal Lease, Material Lease, or
modification, amendment, wavier, renewal or extension of a Lease or Material
Lease that may not be entered into by Trustor under this Deed of Trust without
the prior approval of the Beneficiary (a “Lease Under Review”) must
be submitted to Beneficiary together with a comparison of such Lease Under
Review compared against the standard form of lease then being used by Trustor.
Beneficiary shall have fifteen (15) Business Days after its acknowledged
receipt of a Lease Under Review to approve or disapprove the same or to request
additional information or materials in connection with its review (the “Additional
Due Diligence Material”). If
Beneficiary disapproves a Lease Under Review, Beneficiary shall provide Trustor
with a written explanation of the reasons for disapproval. If Beneficiary has
not approved or disapproved a Lease Under Review within fifteen (15) Business
Days of its acknowledged receipt of such Lease Under Review or of the
Additional Due Diligence Material, if any, Beneficiary requested as provided above,
then such Lease Under Review shall be deemed approved.


 


(l)                                     With respect to Leases where the tenant is
the United States of America or any agency thereof, which are written on the
standard form of Government lease, Beneficiary agrees by accepting this Deed of
Trust that the subordination thereof to the lien of this Deed of Trust shall
not operate to affect adversely any right of the tenant under such Lease so
long as the tenant is not in default under such Lease.


 


8.               Transfer or Encumbrance of
the Trust Property.


 


(a)                                  Trustor acknowledges that Beneficiary has
examined and relied on the creditworthiness and experience of Trustor and its
controlling principals in owning and operating properties such as the Trust
Property in agreeing to make the Loan, and that Beneficiary will continue to
rely on Trustor’s ownership of the Trust Property as a means of maintaining the
value of the Trust Property as security for repayment of the Debt. Trustor
acknowledges that Beneficiary has a valid interest in maintaining the value of
the Trust Property so as to ensure that, should Trustor default in the
repayment of the Debt or performance of the Obligations, Beneficiary can
recover the Debt by a sale of the Trust Property. Accordingly, except for


 


30





















 


Transfers (as defined below) expressly permitted by the terms of this
Deed of Trust below, Trustor covenants and agrees not to effect any Transfer or
permit any Transfer to occur without in each instance the prior written consent
of Beneficiary, which consent may be withheld in Beneficiary’s sole discretion.
Any Transfer not expressly permitted by this Deed of Trust made without the
prior written consent of Beneficiary shall constitute an Event of Default and
Beneficiary shall have the option to exercise any and all remedies on account
of the same, including accelerating the Maturity Date and declaring the entire
outstanding Debt immediately due and payable. Any consent by Beneficiary to a
Transfer shall be conditioned, among other things, upon delivery of a legal
opinion letter in form and substance reasonably acceptable to Beneficiary
addressing the “bankruptcy remote” and other issues commonly found in so-called
“non-consolidation legal opinions” issued by counsel reasonably acceptable to
Beneficiary. Subject to Paragraph 8(i), transfers of ownership interests
in Trustor and of ownership interests in any entity that directly or indirectly
holds an ownership interest in Trustor, which transfers are not Transfers as
defined herein, are permitted.


 


(b)                                 The term “Transfer” means (i) any voluntary or
involuntary, sale, conveyance, assignment, alienation, disposition, mortgage,
encumbrance, pledge or other transfer of all or any part of the Trust Property
(including any conditional sale or other title retention agreement, any
sale-leaseback, any financing lease or similar transaction having substantially
the same economic effect as any of the foregoing, the filing of any financing
statement or similar instrument under the Uniform Commercial Code or comparable
law of any other jurisdiction, domestic or foreign, and, as well as any option
to purchase, right of first refusal, right of first offer or similar right), (ii) if
the enforcement of the following could result in a Change of Control, any
mortgage, lien, pledge, collateral assignment, preference, priority, security
interest, or any other encumbrance or charge on or affecting any direct or
indirect equity interest in, or right to distributions from, Trustor, 1425
Holdings, 1425 Investors or 1425 GP (including any similar transaction having
substantially the same economic effect as any of the foregoing, the filing of
any financing statement or similar instrument under the Uniform Commercial Code
or comparable law of any other jurisdiction, domestic or foreign, as well as
any option to purchase, right of first refusal, right of first offer or similar
right), (iii) the issuance of preferred equity if such issuance would
result in a Change of Control (or debt granting the holder thereof rights
substantially similar to those generally associated with preferred equity) by
Trustor, 1425 Holdings, 1425 Investors or 1425 GP (preferred equity being
defined as equity that upon the occurrence of a default with respect to such
preferred equity can result in increased ownership or voting rights of the
holder of such preferred equity), (iv) Trustor shall be divested of its
title to the Trust Property or any interest therein, in any manner or way,
whether voluntarily or involuntarily, or (v) a Change of Control. A
Transfer includes, without limitation, (A) an installment sales agreement
wherein Trustor agrees to sell the Trust Property or any part thereof for a
price to be paid in installments; (B) an agreement by Trustor leasing all
or a substantial part of the Premises or Improvements for other than actual
occupancy by a space tenant thereunder pursuant to a Lease in accordance with
the terms of the applicable Loan Documents; (C) a sale, assignment,
pledge, encumbrance or other transfer of, or the grant of a security interest
in, Trustor’s right, title and interest in and to any Leases or any Rents; (D) any
Change of Control of Trustor, 1425 Holdings, 1425 Investors or 1425 GP.


 


For purposes of this Deed of Trust, the following terms shall have the
following meanings:


 


31





















 


“Change of Control” means (i) the failure of Trustor to be Controlled (either directly
or though intermediary entities) by 1425 GP or, upon and following (A) its
formation, (B) its shares becoming publicly traded on a national
securities exchange or through the NASDAQ national markets system, and (C) it
having a net worth of not less than $50,000,000.00, by Republic Properties
Trust, a to be formed Maryland corporation (“RPT”),
or by one or more Qualified Equityholders (individually or collectively) or (ii) if
Trustor is not Controlled (either directly or though intermediary entities) by
RPT or by one or more Qualified Equityholders (individually or collectively),
the failure of 1425 GP to be Controlled by one or more of the following:
Richard Kramer, Steven Grigg, Mark Keller and any members of the family (or any
one or more trusts for the benefit of any member or members of the family of)
any of the foregoing individuals, provided that in order to include any such
family member or trust in the group that has Control, at least one such family
member who individually or with others has Control, or the trustee(s) of such a
trust which itself or with others has Control, must have experience in managing
and operating properties such as the Trust Property.


 


“Control” of any entity means (a) the ownership,
directly or indirectly, of at least 51% of the equity interests in, and the
right to at least 51% of the distributions from, such entity and (b) the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such entity, whether through the
ability to exercise voting power, by contract or otherwise (“Controlled” and “Controlling” each have the meanings correlative
thereto); provided, however, that for purposes of determining whether 1425 GP
Controls any entity, the provisions of clause (a) shall not apply.


 


“Qualified Equityholder” means a bank, saving and loan association, investment bank, insurance
company, trust company, commercial credit corporation, pension plan, pension
fund or pension advisory firm, mutual fund, government entity or plan, real
estate company, investment fund or an institution substantially similar to any
of the foregoing, provided in each case that (x) such person has total assets
(in name or under management) in excess of $2 billion and (except with respect
to a pension advisory firm or similar fiduciary) capital/statutory surplus or
shareholder’s equity in excess of $1 billion (in both cases, exclusive of the
Trust Property), and is regularly engaged in the business of owning and
operating office properties in major metropolitan areas, and (y) Rating
Confirmation is received with respect thereto.


 


(c)                                  Beneficiary 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
any Transfer made without Beneficiary’s prior written consent. This provision shall
apply to every Transfer whether voluntary or not, or whether or not Beneficiary
has consented to any previous Transfer.


 


(d)                                 Beneficiary’s consent to any Transfer shall
not be deemed to be a waiver of Beneficiary’s right to require such consent to
any future Transfer.  Any Transfer made
in contravention of this Paragraph 8 shall be null and void and of no
force and effect.


 


(e)                                  In connection with the review, approval and
documentation of any Transfer, Trustor shall pay or reimburse Beneficiary on
demand all reasonable out-of-pocket expenses (including, without limitation,
reasonable attorneys’ fees and disbursements, title search costs and


 


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title insurance endorsement premiums, rating agency fees, and the cost
of legal opinions relating to REMIC or similar tax issues) incurred by
Beneficiary in connection with the review, approval and documentation of such
Transfer.


 


(f)                                    Notwithstanding anything to the contrary in
this Paragraph 8, Trustor shall have the right to transfer the Trust
Property in its entirety (a “Property Transfer”) if, and only if, all of the
following conditions are first satisfied:


 


(i)                                     No Event of Default or event which with the
giving of notice or the passage of time would constitute an Event of Default
shall exist.


 


(ii)                                  Trustor gives Beneficiary written notice of
the terms of such prospective Property Transfer not less than sixty (60) days
before the date on which such Property Transfer is scheduled to be consummated
and, concurrently therewith, gives Beneficiary all reasonable information
concerning the proposed transferee of the Trust Property (“Transferee”)
and the proposed person or entity that will assume Guarantors obligations under
the Guaranty and other Loan Documents executed by Guarantor (“Transferee
Guarantor”) as
Beneficiary would require in evaluating an initial extension of credit to a
borrower and pays to Beneficiary a non-refundable application fee in the amount
of $10,000.00 (the “Application Fee”).


 


(iii)                               Beneficiary approves in writing the
Transferee and, if applicable, the Transferee Guarantor, which approval
Beneficiary may withhold in its reasonable discretion. In determining whether
to give or withhold its approval of the Transferee and Transferee Guarantor,
Beneficiary may consider the Transferee’s experience in owning and operating
facilities similar to the Premises and Improvements, the Transferee’s entity
structure, the Transferee’s and, if applicable, the Transferee Guarantor’s
financial strength and creditworthiness, and the Transferee’s and, if
applicable, the Transferee Guarantor’s general business standing and their
relationships with contractors, vendors, tenants, lenders and other business
entities. In connection with such consideration by Beneficiary, Beneficiary may
review such financial statements, credit reports, tax returns and other
information reasonably requested by Beneficiary.


 


(iv)                              Beneficiary shall have determined in its
reasonable discretion that Transferee’s proposed property manager has
sufficient experience in the ownership and management of properties similar to
the Premises and Improvements, and Beneficiary shall have received reasonable
evidence thereof (and Beneficiary reserves the right to approve the Transferee
without approving the substitution of the property manager).


 


(v)                                 To the extent Beneficiary determines it
necessary or prudent to do so, Beneficiary shall have received Rating
Confirmation from the Rating Agency.


 


(vi)                              Without any cost or expense to Beneficiary,
Transferee executes and delivers to Beneficiary an assumption agreement in form
and substance acceptable to Beneficiary (containing, to the extent reasonably
deemed necessary by Beneficiary in light of the organizational structure of
Transferee, amendments to the definition of


 


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“Transfer” in this Paragraph 8), evidencing such Transferee’s
agreement to abide and be bound by the terms of the Note, this Deed of Trust
and the other Loan Documents executed by Trustor (subject to the provisions of Paragraph
50 hereof) and, if applicable, such Transferee Guarantor’s agreement to
abide and be bound by the terms of the Guaranty and all other Loan Documents
executed by Guarantor, and Transferee executes and delivers new financing
statements or financing statement amendments, and Transferee and Transferee
Guarantor deliver such additional documents and legal opinions as reasonably
requested by Beneficiary to evidence and effectuate said assumption, including
a legal opinion letter in form and substance reasonably acceptable to
Beneficiary addressing the “bankruptcy remote” issues commonly found in
so-called “non-consolidation legal opinions” issued by counsel to Transferee
reasonably acceptable to Beneficiary.


 


(vii)                           Beneficiary is in receipt of all documents
evidencing the Transferee’s capacity and good standing, and the qualification
of the signers to execute the assumption of the Debt, which documents shall
include, without limitation, certified copies of all documents relating to the
organization and formation of the Transferee and Transferee’s Governing Entity.
Transferee and such Governing Entity must satisfy all of the applicable
requirements of Paragraph 9 of this Deed of Trust.


 


(viii)                        Trustor executes and delivers to Beneficiary,
without any cost or expense to Beneficiary, a release of Beneficiary, its
officers, directors, employees and agents, from all claims and liability
relating to the transactions evidenced by the Loan Documents, through and
including the date of the consummation of the Property Transfer, which
agreement shall be in form and substance reasonably satisfactory to
Beneficiary.


 


(ix)                                Trustor delivers to Beneficiary, without any
cost or expense to Beneficiary, such endorsements to Beneficiary’s mortgagee
policy of title insurance, hazard insurance endorsements or certificates and
other similar materials as Beneficiary may deem reasonably necessary at the
time of the Property Transfer, all in form and substance reasonably
satisfactory to Beneficiary, including, without limitation, an endorsement or
endorsements to Beneficiary’s title insurance policy insuring the lien of this
Deed of Trust, extending the effective date of such policy to the date of
execution and delivery (or, if later, of recording) of the assumption agreement
referenced above, with no additional exceptions added to such policy, and
insuring that fee simple title to the Premises and Improvements are vested in
the Transferee.


 


(x)                                   Concurrently with the consummation of the
Property Transfer, Trustor pays to Beneficiary in cash a non-refundable
transfer fee equal to one percent (1%) of the then outstanding amount of the
Debt (the “Transfer Fee”), which
Transfer Fee is in addition to the Application Fee. The Application Fee shall
be used to pay Beneficiary’s reasonable and customary out-of-pocket costs and
expenses, including, without limitation, reasonable attorneys’ fees and
disbursements, title search costs and title insurance endorsement premiums,
Rating Agency fees and the cost of legal opinions relating to REMIC or similar
tax issues, incurred by Beneficiary in connection with the


 


34





















 


Property Transfer. Trustor’s obligation to pay such out-of-pocket costs
and expenses and attorneys’ fees of Beneficiary in connection with such
Property Transfer shall not exceed the Application Fee.


 


(g)                                 Without limiting the foregoing, if a Property
Transfer has been consummated following satisfaction of all of the conditions
precedent set forth in Subparagraph 8(f) above and Beneficiary has
received from Transferee and, if applicable, Transferee Guarantor, the written
assumption agreement described in Subparagraph 8(f)(vi) above,
then, and only then, the Trustor shall be relieved of all obligations under the
Note, this Deed of Trust and the other Loan Documents executed by the Trustor,
and the Guarantor shall be relieved of all obligations under the Guaranty and
all other Loan Documents executed by the Guarantor, but in each instance only
as to acts or events occurring, or obligations arising, after consummation of
such Property Transfer. If without a Property Transfer there is a Change of
Control resulting in the Trustor being controlled (directly or indirectly
through intermediary entities) by a Qualified Equityholder and the Qualified
Equityholder (or an entity controlled by the Qualified Equityholder that meets
with Beneficiary’s satisfaction) executes an agreement to abide and be bound by
the terms of the Guaranty and other Loan Documents executed by Guarantor, then
Guarantor shall be relieved of all obligations under the Guaranty and other
Loan Documents executed by the Guarantor, but only as to acts or events
occurring, or obligations arising, after consummation of such Change in
Control.


 


(h)                                 Notwithstanding anything to the contrary in
this Paragraph 8, following formation of RPT, its shares becoming
publicly traded on a national securities exchange or through the NASDAQ
national markets system, and it having a net worth of not less than
$50,000,000.00, Trustor shall have the right to transfer the Trust Property in
its entirety (a “RPT Property Transfer”) to
any entity controlled by KPT that meets the requirements of Paragraph 9
of this Deed of Trust, if and only if, all of the following conditions are
first satisfied:


 


(i)                                      Trustor gives Beneficiary written notice of
the terms of such prospective RPT Property Transfer and the name of the
proposed transferee (the “RPT Transferee”) not
less than ten (10) days before the date on which such RPT Property
Transfer is scheduled to be consummated and pays to Beneficiary an Application
Fee. The Application Fee shall be used to pay Beneficiary’s reasonable and customary
out-of-pocket costs and expenses, including, without limitation, reasonable
attorneys’ fees and disbursements, title search costs and title insurance
endorsement premiums, Rating Agency fees and the cost of legal opinions
relating to REMIC or similar tax issues, incurred by Beneficiary in connection
with the Property Transfer. Trustor’s obligation to pay such out-of-pocket
costs and expenses and attorneys’ fees of Beneficiary in connection with such
Property Transfer shall not be limited to the Application Fee, and Trustor
agrees to pay any excess reasonably incurred by Beneficiary promptly upon
demand.


 


(ii)                                   RPT Transferee executes and delivers to
Beneficiary an assumption agreement in form and substance acceptable to
Beneficiary evidencing RPT Transferee’s agreement to abide and be bound by the
terms of the Note, this Deed of Trust and the other Loan Documents executed by
Trustor (subject to the provisions of Paragraph 50


 


35





















 


hereof) and the agreement of RPT (or an entity
controlled by RPT that meets with Beneficiary’s satisfaction) (RPT or such
other entity being herein referred to as “RPT
Guarantor”) to abide and be bound by the terms
of the Guaranty and other Loan Documents executed by Guarantor, and RPT
Transferee executes and delivers new financing statements or financing
statement amendments, and RPT Transferee and RPT Guarantor deliver such
additional documents and legal opinions as reasonably requested by Beneficiary
to evidence and effectuate said assumption, including a legal opinion letter in
form and substance reasonably acceptable to Beneficiary addressing the “bankruptcy
remote” issues commonly found in so-called “non-consolidation legal opinions”
issued by counsel to RPT Transferee reasonably acceptable to Beneficiary.


 


(iii)                                Beneficiary is in receipt of all documents
evidencing RPT Transferee’s capacity and good standing, and the qualification
of the signers to execute the assumption of the Debt, which documents shall
include, without limitation, certified copies of all documents relating to the
organization and formation of the RPT Transferee and if RPT Transferee is a
limited liability company that is not a single member LLC or is a limited
partnership, certified copies of all documents relating to the organization and
formation of RPT Transferee’s managing member or general partner, as the case
may be, and such managing member or general partner must satisfy all of the
applicable requirements of Paragraph 9 of this Deed of Trust.


 


(iv)                               Trustor executes and delivers to Beneficiary,
without any cost or expense to Beneficiary, a release of Beneficiary, its
officers, directors, employees and agents, from all claims and liability
relating to the transactions evidenced by the Loan Documents, through and
including the date of the consummation of the RPT Property Transfer, which
agreement shall be in form and substance reasonably satisfactory to
Beneficiary.


 


(v)                                  Trustor delivers to Beneficiary, without any
cost or expense to Beneficiary, such endorsements to Beneficiary’s policy of
title insurance, hazard insurance endorsements or certificates and other
similar materials as Beneficiary may deem reasonably necessary at the time of
the RPT Property Transfer, all in form and substance reasonably satisfactory to
Beneficiary, including, without limitation, an endorsement or endorsements to
Beneficiary’s title insurance policy insuring the lien of this Deed of Trust,
extending the effective date of such policy to the date of execution and
delivery (or, if later, of recording) of the assumption agreement referenced
above, with no additional exceptions added to such policy, and insuring that
fee simple title to the Premises and Improvements are vested in RPT Transferee.


 


Without limiting the
foregoing, if a RPT Property Transfer has been consummated following
satisfaction of all of the conditions precedent set forth in Subparagraph 8(h) above
and Beneficiary has received from RPT Transferee and RPT Guarantor the written
assumption agreement described in Subparagraph 8(h)(ii) above,
then, and only then, the Trustor shall be relieved of all obligations under the
Note, this Deed of Trust and the other Loan Documents executed by the Trustor
and the Guarantor shall be relieved of all obligations under the Guaranty and
other Loan Documents


 


36





















 


executed by the Guarantor, but in each instance only as to acts or
events occurring, or obligations arising, after consummation of such RPT
Property Transfer. If without a RPT Property Transfer there is a Change of
Control resulting in the Trustor being controlled (directly or indirectly
through intermediary entities) by RPT and RPT Guarantor executes an agreement
to abide and be bound by the terms of the Guaranty and other Loan Documents
executed by Guarantor, then Guarantor shall be relieved of all obligations
under the Guaranty and other Loan Documents executed by the Guarantor, but only
as to acts or events occurring, or obligations arising, after consummation of
such Change in Control.


 


(i)                                     Notwithstanding that transfers of interests
in Trustor or its Governing Entity are not Transfers unless there is a Change
of Control, if, after taking into account any prior transfer, whether to the
proposed transferee or otherwise, a transfer (or series of transfers) shall
result in (A) the proposed transferee, together with all of the proposed
transferee’s Family Members or any affiliates thereof, owning in the aggregate
(directly, indirectly or beneficially) more than forty-nine percent (49%) of
the ownership interests in Trustor (or in any entity directly or indirectly
holding an ownership interest of more than 49% in Trustor) if it did not do so
prior to such transfer, or (B) a transfer in the aggregate of more than
forty-nine percent (49%) of the ownership interests in Trustor (or in any
entity directly or indirectly holding an ownership interest of more than 49% in
Trustor) that exist as of the date hereof, then Trustor shall deliver to
Beneficiary a legal opinion from legal counsel of Trustor’s choosing but
reasonably acceptable to Beneficiary and in form and substance reasonably
satisfactory to Beneficiary and, at any time following any Securitization or
series of Securitizations of the Loan, each of the Rating Agencies rating such
Securitization or Securitizations, addressing the “bankruptcy remote” issues
commonly found in so-called “non-consolidation legal opinions.


 


(j)                                     Notwithstanding any other term or provision
of this Paragraph 8 to the contrary, Transfers of controlling ownership
interests in Trustor or of controlling ownership interests in any Governing
Entity of Trustor (other than transfers resulting from the death of an
individual or transfers to RPT or an entity controlled by RPT) may not be
consummated without the prior consent of Beneficiary for the period ending upon
the first to occur of (i) a Securitization or (ii) one hundred eighty
(180) days after the date of this Deed of Trust, upon which date this subparagraph
shall terminate and be of no further force or effect.


 


9.                Single Purpose
Entity/Separateness.  Trustor represents, warrants and covenants as
follows:


 


(a)                                  Trustor does not own and will not own any
asset or property other than (i) the Trust Property, and (ii) incidental
personal property necessary for the ownership or operation of the Trust
Property.


 


(b)                                 Trustor will not engage in any business other
than the ownership, management and operation of the Trust Property and Trustor
will conduct and operate its business as presently conducted and operated.


 


(c)                                  Trustor will not enter into any contract or
agreement with any affiliate of the Trustor, any constituent party of Trustor,
Guarantor any other guarantor of the Debt or any part


 


37





















 


thereof or any affiliate of any constituent party or Guarantor, except
upon terms and conditions that are intrinsically fair and substantially similar
to those that would be available on an arms-length basis with third parties
other than any such party.


 


(d)                                 Trustor has not incurred and will not incur
any indebtedness,  secured or unsecured,
direct or indirect, absolute or contingent (including guaranteeing any
obligation), other than (i) the Debt, (ii) unsecured trade debt
incurred in the ordinary course of business with trade creditors and in amounts
as are normal and reasonable under the circumstances and such debt is not
evidenced by a promissory note executed by Trustor, provided that the
outstanding amount of such trade debt shall never be more than four percent
(4%) of the stated principal sum of the Note at any one time and Trustor
covenants to pay all such trade debt within sixty (60) days of the date the
same is incurred, and (iii) debt incurred in the ordinary course of
Trustor’s business to finance equipment and other personal property used on the
Premises the removal of which would not materially damage the Improvements or
materially impair the value of the Improvements, provided that such debt is not
evidenced by a promissory note executed by Trustor or is secured by any property
other than the item of equipment or personal property so financed.  No indebtedness other than the Debt may be
secured (subordinate or pari  passu) by the Trust Property.


 


(e)                                  Trustor has not made and will not make any
loans or advances to any third party (including any affiliate or constituent
party, any Guarantor or any affiliate of any constituent party or Guarantor),
and shall not acquire obligations or securities of its affiliates or any constituent
party.


 


(f)                                    Trustor is and will remain solvent and
Trustor will pay its debts and liabilities (including, as applicable, shared
personnel and overhead expenses) from its assets as the same shall become due.


 


(g)                                 Trustor has done or caused to be done and
will do all things necessary to observe organizational formalities and preserve
its existence, good standing and right to do business in the state where it is
organized or registered and in the state where the Premises are located, and Trustor
will not, and will not permit its Governing Entity (hereafter defined) to
amend, modify or otherwise change the partnership certificate, partnership
agreement, articles of incorporation and bylaws, articles or organization and
operating agreement, trust or other organizational documents of Trustor or its
Governing Entity, without the prior written consent of Beneficiary. For
purposes hereof, “Governing Entity” means
(i) if Trustor is a limited a partnership, its general partner, or (ii) if
Trustor is a limited liability company that is not a single member limited
liability company, its managing member, or (iii) if Trustor is a limited
liability company that is a single member limited liability company, its sole
member.


 


(h)                                 Trustor will maintain all of its books and
records as official records, and will maintain all of its books, records,
financial statements and bank accounts separate from those of its affiliates
and any constituent party and, unless treated as a division for tax purposes of
another taxpayer, Trustor will file its own tax returns, provided, however,
that Trustor’s assets may be included in a consolidated financial statement
with its affiliates provided that the appropriate notations shall be made on
such consolidated financial statement to indicate the separateness of


 


38





















 


Trustor and such affiliates and to indicate that none of such
affiliates assets and credit are available to satisfy the debts and other
obligations of Trustor.


 


(i)                                     Trustor will be, and at all times will hold
itself out to the public as, a legal entity separate and distinct from any
other entity (including any affiliate of Trustor, any constituent party of
Trustor, any Guarantor or any affiliate of any constituent party of Trustor or
Guarantor), shall correct any known misunderstanding regarding its status as a
separate entity, shall conduct business in its own name, shall not identify
itself or any of its affiliates as a division or part of the other and shall
maintain and utilize a separate telephone number and separate stationery, invoices
and checks.


 


(j)                                     Trustor will maintain adequate capital for
the normal obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations.


 


(k)                                  Neither Trustor, nor any Governing Entity of
Trustor, will seek the dissolution, winding up, liquidation, consolidation or
merger, in whole or in part, of the Trustor or such Governing Entity.


 


(l)                                     Trustor will not commingle the funds and
other assets of Trustor with those of any affiliate or constituent party, any
Guarantor, or any affiliate of any constituent party of Trustor or Guarantor,
or any other person.


 


(m)                               Trustor has and will maintain its assets in such a manner that it will
not be costly or difficult to segregate, ascertain or identify its individual
assets from those of any affiliate or constituent party, any Guarantor, or any
affiliate of any constituent party of Trustor or Guarantor, or any other
person.


 


(n)                                 Trustor does not and will not hold itself out
to be responsible for the debts or obligations of any other person.


 


(o)                                 If Trustor is a single-member limited
liability company, (A) Trustor is formed under the laws of the State of
Delaware and Trustor’s operating agreement (the “LLC Agreement”) provides for the continued
existence of Trustor in the event of the bankruptcy or dissolution of the sole
member, and (B) Trustor has furnished to Beneficiary as of the date of
this Deed of Trust an opinion of counsel reasonably acceptable to Beneficiary
and its counsel that (i) Trustor is a legal entity formed in the state of
its organization; (ii) the LLC Agreement constitutes a legal, valid and
binding agreement of the sole member and is enforceable against the sole member
in accordance with its terms; (iii) under the law of the state in which
Trustor has been organized Trustor is a separate legal entity and the existence
of Trustor as a separate legal entity shall continue until the cancellation of
Trustor’s Certificate of Formation; (iv) the LLC Agreement provides for
the continued existence of Trustor in the event of the bankruptcy or
dissolution of the sole member, and such provisions would be enforceable under
the laws of the state in which Trustor has been organized notwithstanding the
bankruptcy or dissolution of the sole member; (v) no creditor of the sole
member shall have any right to satisfy its claim against the sole member by
obtaining possession of, or otherwise realizing upon, the Trust Property or


 


39





















 


any other assets of Trustor; (vi) if properly presented to a state
court in the state in which Trustor has been organized, such state court
applying such state’s law, would conclude that until such time that no amounts
remain due and payable and no obligations remain outstanding under the Loan
Documents, in order for a person to file a voluntary bankruptcy petition on
behalf of Trustor, the unanimous vote of the individuals serving as the
managers of Trustor or as the managers or directors of Trustor’s Governing
Entity, including the Independent Directors, Independent Managers, or
Independent Members, as the case may be, or of the sole member or of the sole
member’s Governing Entity, as the case may be, is required; and (vii) although
on application to a court of competent jurisdiction a judgment creditor of the
sole member may be able to charge the sole member’s share of any profits and
losses of Trustor and the sole member’s right to receive distributions of
Trustor’s assets (the “Sole Member’s Interest”) and
the court may appoint a receiver of the share of the distributions due or to
become due to the sole member in respect of Trustor, the receiver shall have
only the rights of an assignee of the Sole Member’s Interest.


 


(p)                                 If Trustor is a limited partnership or a
limited liability company, its Governing Entity shall be an entity whose sole
asset is its interest in Trustor and such Governing Entity will at all times
comply, and will cause Trustor to comply, with each of the representations,
warranties, and covenants contained in this Paragraph 9 as if such
representation, warranty or covenant was made directly by such Governing
Entity.


 


(q)                                 Trustor has caused, and at all times shall
cause, there to be at least two duly appointed (i) Independent Directors
(defined below) of Trustor’s board of directors (if Trustor is a corporation)
or of its Governing Entity (if its Governing Entity is a corporation), or (ii) Independent
Managers or Independent Members (defined below) (if Trustor is a limited
liability company) or of Trustor’s Governing Entity (if its Governing Entity is
a limited liability company). “Governing
Entity” means (i) if Trustor is a limited a partnership, its
general partner, or (ii) if Trustor is a limited liability company that is
not a single member limited liability company, its managing member. “Independent Director,” “Independent Manager” or “Independent
Member” means a natural person who is appointed or elected by
the stockholders or members of Trustor or its Governing Entity as such a party
and who is not at the time of appointment or at any time while serving in such
capacity and has not been at any time during the preceding five (5) years:
(i) a director, manager, member (other than as an Independent Director,
Independent Manager or Independent Member of Trustor or its Governing Entity),
stockholder, partner, or director of, or an attorney, counsel, officer or
employee of Trustor or its Governing Entity, or any of their respective
stockholders, investors or Affiliates; (ii) a creditor or customer of, or
supplier, service provider (including a provider of professional services) to,
or other person who derives any of its purchases or revenues from its
activities with Trustor or its Governing Entity, or any of their respective
members, partners, stockholders, investors or Affiliates; (iii) a member
of the immediate family of any person excluded from being an Independent
Director, Independent Manager or Independent Member under parts (i) and (ii) of
this definition, or; (iv) any Affiliate of any person excluded from being
an Independent Director, Independent Manager or Independent Member under part (i) or
(ii) of this definition.


 


(r)                                    Neither Trustor nor its Governing Entity
shall cause or permit the board of directors or members, as the case may be, of
Trustor or of its Governing Entity, to take any action


 


40





















 


which, under the terms of any certificate of
incorporation or organization, any by-laws or operating agreement, or any
voting trust agreement with respect to any common stock, or membership or
partnership interests, requires the vote of the board of directors, partners,
managers or members of Trustor or of its Governing Entity unless at the time of
such action there shall be at least one director, manager or member who is an
Independent Director.


 


(s)                                Trustor shall conduct its business so that
the assumptions made with respect to Trustor in that certain non-consolidation
opinion letter (the “Insolvency Opinion”) delivered
by Arent Fox PLLC in connection with the Loan shall be true and correct in all
material respects. Each of the assumptions contained in such Insolvency Opinion
are true and correct.


 


Except as otherwise disclosed to Beneficiary,
Trustor represents that Trustor and its Governing Entity has complied in all
material respects with the foregoing single purpose and separateness provisions
since the date of its formation.


 


10.     Maintenance of Trust
Property. Trustor shall cause
the Trust Property to be maintained in a good and safe condition and repair and
in keeping with the condition and repair of properties of a similar use, value,
age, nature and construction. Trustor shall not perform or contract to perform
any Material Alteration (defined below) without the prior written consent of
Beneficiary, which consent (in the absence of an Event of Default) shall not be
unreasonably withheld. If Beneficiary’s consent is requested hereunder with
respect to a Material Alteration, Beneficiary may retain a construction
consultant to review such request and, if such request is granted, Beneficiary
may retain a construction consultant to inspect the work from time to time.
Trustor shall, on demand by Beneficiary, reimburse Beneficiary for the
reasonable fees and disbursements of such consultant. For purposes hereof, “Material Alteration” means any demolition,
alteration, installation, improvement or expansion of or to the Trust Property
or any portion thereof (other than tenant improvements required under the
Leases) to be performed by or on behalf of Trustor which (a) is reasonably
likely to have a material adverse effect on the then current use and operation
of the Trust Property, (b) is reasonably expected to cost in excess of
$500,000, as determined by an independent architect, or (c) is reasonably
expected to permit (or is reasonably likely to induce) any Tenant to terminate
its Lease or abate rent


 


Trustor shall not use, maintain or operate the Trust Property in any
manner which constitutes a public or private nuisance or which makes void,
voidable, or cancelable, or increases the premium of, any insurance then in
force with respect thereto. Trustor shall comply with the recommendations
concerning the maintenance and repair of the Trust Property which are contained
in the inspection and engineering report and environmental site assessment
which were delivered to Beneficiary in connection with the origination of the
Loan, specifically including (i) the obtaining from a structural engineer
of a review and report of the water damaged foundation wall at the east side of
the parking garage and the implementation of any recommended repairs, (ii) the
repair of the window leak and the dry wall detachment from the window casing on
the sixth floor and replacement of water stained ceiling tiles on the sixth and
twelfth floors and of any associated materials with mold growth potential, and (iii) causing
to be performed, at the designated or other appropriate time, the items
described in the Replacement Reserves Cost Estimate included in the inspection
and engineering report. The Improvements and the Equipment shall not be
removed, demolished or materially altered (except for normal replacement of the
Equipment with items of the same utility and of equal or greater value) without
the prior written consent of Beneficiary. Trustor shall promptly comply with
all laws, orders and ordinances affecting the Trust Property, or the use


 


41





















 


thereof.
Trustor shall promptly repair, replace or rebuild any part of the Improvements
or Equipment that is destroyed by any Casualty, or becomes damaged, worn or
dilapidated or that is affected by any Taking and shall complete and pay for
any structure at any time in the process of construction or repair on the
Premises. Trustor 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
Premises or Improvements or any part thereof. If under applicable zoning
provisions the use of all or any portion of the Premises or Improvements is or
shall become a nonconforming use, Trustor will not cause or permit such
nonconforming use to be discontinued or abandoned without the express written
consent of Beneficiary. Trustor shall not (i) change the use of the
Premises or Improvements or (ii) take any steps whatsoever to convert the
Premises or Improvements, or any portion thereof, to a condominium or
cooperative form of management. Trustor will not install or permit to be
installed on the Premises any underground storage tank. Trustor shall not
commit or suffer any waste of the Trust Property or make any change in the use
of the Trust Property which will in any way materially increase the risk of
fire or other hazard arising out of the operation of the Trust Property, or
take any action that might invalidate or give cause for cancellation of any of
the Policies, or do or permit to be done thereon anything that may in any way
impair the value of the Trust Property in any material respect or the lien of
this Deed of Trust. Trustor will not, without the prior written consent of
Beneficiary, permit any drilling or exploration for or extraction, removal, or
production of any minerals from the surface or the subsurface of the Premises,
regardless of the depth thereof or the method of mining or extraction thereof.


 


11.        Defeasance.


 


(a)                                  Except as provided in Paragraph 4(a)(iv) above
or in Paragraph 7 of the Note, the Debt may not be prepaid in full or in part.
At any time after the date which is the earlier of four years following the
date hereof or two years after the date of a Securitization, Trustor may obtain
the release of the Trust Property from the lien of this Deed of Trust upon the
satisfaction of the following conditions precedent:


 


(i)                                     not less than thirty (30) days prior written
notice to Beneficiary specifying a Payment Date (the “Release Date”) on which the Defeasance Deposit
(hereinafter defined) is to be made;


 


(ii)                                  the payment to Beneficiary of interest
accrued and unpaid on the principal balance of the Note to and including the
Release Date;


 


(iii)                               the payment to Beneficiary of all other sums,
not including scheduled interest or principal payments, due under the Note,
this Deed of Trust, the Assignment of Leases, and the other Loan Documents;


 


(iv)                              the payment to Beneficiary of the Defeasance
Deposit; and


 


(v)                                 the delivery to Beneficiary of:


 


(A)                              a security agreement, in form and substance
satisfactory to Beneficiary, creating a first priority lien on the Defeasance
Deposit and the U.S.


 


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Obligations (hereinafter defined) purchased on behalf of Trustor with
the Defeasance Deposit in accordance with this provision of this paragraph (the
“Security Agreement”);


 


(B)                                a release of the Trust Property from the lien
of this Deed of Trust (for execution by Beneficiary) in a form appropriate for
the jurisdiction in which the Trust Property is located;


 


(C)                                an officer’s certificate of Trustor
certifying that the requirements set forth in this Subparagraph (a) have
been satisfied;


 


(D)                               an opinion of counsel for Trustor in form and
substance and delivered by counsel satisfactory to Beneficiary stating, among
other things (x) that Beneficiary has a perfected first priority security
interest in the Defeasance Deposit and the U.S. Obligations purchased by
Beneficiary on behalf of Trustor, (y) that the Security Agreement is
enforceable against Trustor in accordance with its terms and (z) that the
defeasance will not cause any trust to fail to qualify as a “real estate
mortgage investment conduit” (a “REMIC”),
within the meaning of Section 860D of the Internal Revenue Code of 1986;


 


(E)                                 evidence in writing from the applicable
Rating Agencies to the effect that such release will not result in a
re-qualification,  reduction or withdrawal
of any rating in effect immediately prior to such defeasance for any securities
issued in connection with a Securitization; and


 


(F)                                 such other certificates, opinions, documents
or instruments as Beneficiary may reasonably request.


 


In connection with the conditions set forth
in Subparagraph 11 (a)(v) above, Trustor hereby appoints
Beneficiary as its agent and attorney-in-fact for the purpose of using the
Defeasance Deposit to purchase U.S. Obligations which provide payments on or prior
to, but as close as possible to, all successive scheduled Payment Dates after
the Release Date upon which interest and principal payments are required under
the Note and in amounts equal to the scheduled payments due on such dates under
the Note (the “Scheduled Defeasance Payments”).
Trustor, pursuant to the Security Agreement or other appropriate
document, shall authorize and direct that the payments received from the U.S.
Obligations may be made directly to Beneficiary and applied to satisfy the obligations
of the Trustor under the Note.


 


(b)                                 Upon compliance with the requirements of this
Paragraph 11. the Trust Property shall be released from the lien of this
Deed of Trust and the pledged U.S. Obligations shall be the sole source of
collateral securing the Note. Any portion of the Defeasance Deposit in excess
of the amount necessary to purchase the U.S. Obligations required by Subparagraph
(a) above and satisfy the Trustor’s obligations under this paragraph
shall be remitted to the Trustor with the release of the Trust Property from
the lien of this Deed of Trust. In connection with such release, Beneficiary
shall establish or designate a successor entity (the “Successor Trustor”) and Trustor shall transfer and assign all
obligations, rights and duties under and to the Note together with the


 


43





















 


pledged U.S. Obligations to such Successor Trustor.
The right of Beneficiary to establish or designate a Successor Trustor shall be
retained by Beneficiary notwithstanding the sale or transfer of this Deed of
Trust unless such obligation is specifically assumed by the transferee. Such
Successor Trustor shall assume the obligations under the Note and the Security
Agreement and Trustor shall be relieved of its obligations thereunder and under
the other Loan Documents (except such obligations as survive payment of the
Debt). The Trustor shall pay $1,000.00 to any such Successor Trustor as
consideration for assuming the obligations under the Note and the Security
Agreement. Notwithstanding anything in this Deed of Trust to the contrary, no
other assumption fee shall be payable upon a transfer of the Note in accordance
with this paragraph, but Trustor shall pay all costs and expenses incurred by
Beneficiary, including Beneficiary’s attorneys’ fees and expenses, incurred in
connection with this Paragraph 11.


 


(c)                                  For purposes of this paragraph, the following
terms shall have the following meanings:


 


(i)                                     The term “Defeasance
Deposit” shall mean an amount equal to the sum of one-hundred
percent (100%) of the entire unpaid principal balance of the Note, the Yield
Maintenance Premium, any costs and expenses incurred or to be incurred in the
purchase of U.S. Obligations necessary to meet the Scheduled Defeasance
Payments and any revenue, documentary stamp or intangible taxes or any other
tax or charge due in connection with the transfer of the Note or otherwise
required to accomplish the agreements of this paragraph;


 


(ii)                                  The term “Yield
Maintenance Premium” shall mean the amount (if any) which, when
added to the remaining principal amount of the Note, will be sufficient to
purchase U.S. Obligations providing the required Scheduled Defeasance Payments;
and


 


(iii)                               The term “U.S. Obligations” shall mean direct,
non-callable obligations of the United States of America


 


12.        Estoppel Certificates and No
Default Affidavits.


 


(a)                                  After written request by Beneficiary,
Trustor, within ten (10) days, shall furnish Beneficiary or any proposed
assignee with a statement, duly acknowledged and certified, setting forth (i) the
original principal amount of the Note, (ii) the unpaid principal amount of
the Note, (iii) the rate of interest of the Note, (iv) the terms of
payment and Maturity Date of the Note, (v) the date installments of
interest and/or principal were last paid, (vi) that, except as provided in
such statement, no Events of Default or events which, with the passage of tune
or the giving of notice or both, would constitute an Event of Default exist
under any of the Loan Documents that is then continuing, (vii) that,
except as expressly set forth in such statement, all representations and
warranties of Trustor set forth herein and in the other Loan Documents are true
and correct in all material respects as of the date of such statement, (viii) that
the Loan Documents are valid, legal and binding obligations and have not been
modified or if modified, giving particulars of such modification, (ix) whether
any offsets or defenses exist against the Debt or Obligations and,


 


44





















 


if any are alleged to exist, a detailed description thereof, (x) that
all Leases are in fall force and effect and (provided the Improvements are not
a residential multifamily property) have not been modified (or if modified, setting
forth all modifications), (xi) the date to which the Rents thereunder have been
paid pursuant to the Leases, (xii) whether or not, to the best knowledge of
Trustor, any of the lessees under the Leases are in default under the Leases,
and, if any of the lessees are in material default, setting forth the specific
nature of all such material defaults, (xiii) the amount of security deposits
held by Trustor under each Lease and that such amounts are consistent with the
amounts required under each Lease, and (xiv) as to any other matters reasonably
requested by Beneficiary and reasonably related to the Leases, the Debt and
Obligations, the Trust Property or this Deed of Trust.


 


(b)                                 pon Beneficiary’s written request, subject to
the provisions of the Leases, Trustor shall request from each tenant whose
Lease requires such tenant to execute and deliver an estoppel certificate (and
with respect to any tenant whose Lease does not require the same Trustor shall
use its best efforts to obtain such certificate), and shall thereafter promptly
deliver to Beneficiary duly executed estoppel certificates from any one or more
tenants under the Leases as received by Beneficiary from any one or more of
such tenants. Subject to the provisions of any such Leases that specify the
contents of such estoppel certificates, such estoppel certificates shall attest
to such facts regarding the Leases as Beneficiary may reasonably require,
including, but not limited to, to the extent accurate, attestations that each
Lease covered thereby is in full force and effect with no material defaults
thereunder on the part of any party, that none of the Rents have been paid more
than one month in advance, except as security, and that the lessee claims no
defense or offset against the full and timely performance of its obligations
under the Lease. Trustor shall not be required to deliver such certificates
more frequently than one (1) time in any calendar year, other than the
calendar year during which a Securitization occurs.


 


13.        Changes in Laws Regarding
Taxation.  If any law is enacted or adopted or amended
after the date of this Deed of Trust which deducts the Debt from the value of
the Trust Property for the purpose of taxation or which imposes a tax, either
directly or indirectly, on the Debt or Beneficiary’s interest in the Trust
Property, Trustor will pay such tax, with interest and penalties thereon, if
any.  In the event Beneficiary is advised
by counsel chosen by it that the payment of such tax or interest and penalties
by Trustor would be unlawful or taxable to Beneficiary or unenforceable or
provide the basis for a defense of usury, then in any such event, Beneficiary
shall have the option, by written notice of not less than ninety (90) days, to
declare the Debt immediately due and payable, in which event the payment of the
Debt shall be without any prepayment or yield maintenance premium or penalty.


 


14.        No Credits on Account of the
Debt.
Trustor will not claim or
demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes or Other Charges assessed against the Trust Property, or any
part thereof, and no deduction shall otherwise be made or claimed from the assessed
value of the Trust Property, or any part thereof, for real estate tax purposes
by reason of this Deed of Trust or the Debt. 
In the event such claim, credit or deduction shall be required by law, Beneficiary
shall have the option, by written notice of not less than ninety (90) days, to
declare the Debt immediately due and payable, in which event the payment of the
Debt shall be without any prepayment or yield maintenance premium or penalty.


 


45





















 


15.        Documentary Stamps. If at any time the United States of America,
any State thereof or any subdivision of any such State shall require revenue or
other stamps to be affixed to the Note or this Deed of Trust, or impose any
other tax or charge on the same, Trustor will pay for the same, with interest
and penalties thereon, if any.


 


16.        Controlling Agreement. It is expressly stipulated and agreed to be
the intent of Trustor, and Beneficiary at all times to comply with applicable
state law or applicable United States federal law (to the extent that it
permits Beneficiary to contract for, charge, take, reserve, or receive a
greater amount of interest than under state law) and that this Paragraph 16
shall control every other covenant and agreement in this Deed of Trust and the
other Loan Documents.  If the applicable
law (state or federal) 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
Debt, or if Beneficiary’s exercise of the option to accelerate the maturity of
the Note, or if any prepayment by Trustor results in Trustor having paid any
interest in excess of that permitted by applicable law, then it is Trustor’s
and Beneficiary’s express intent that all excess amounts theretofore collected
by Beneficiary shall be credited on the principal balance of the Note and all
other Debt, and the provisions of the Note and the 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
documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or
thereunder.  All sums paid or agreed to
be paid to Beneficiary for the use, forbearance, or detention of the Debt
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term of the Debt until payment
in full so that the rate or amount of interest on account of the Debt does not
exceed the maximum lawful rate from time to time in effect and applicable to
the Debt for so long as the Debt is outstanding. Notwithstanding anything to
the contrary contained herein or in any of the other Loan Documents, it is not
the intention of Beneficiary to accelerate the maturity of any interest that
has not accrued at the time of such acceleration or to collect unearned interest
at the time of such acceleration.


 


17.        Financial Statements.


 


(a)                                  Trustor represents and warrants to Beneficiary
that the financial statements heretofore furnished to Beneficiary are, as of
the dates specified therein, complete and correct in all material respects and
fairly present the financial condition of the Trustor and any other persons or
entities that are the subject of such financial statements, and are prepared in
accordance with generally accepted accounting principles consistently
applied.  Trustor does not have any contingent
liabilities,  liabilities for taxes,  unusual forward or long-term commitments or unrealized
or anticipated losses from any unfavorable commitments that are known to
Trustor and reasonably likely to have a materially adverse effect on the Trust
Property or the operation of the Improvements, except as referred to or
reflected in said financial statements. 
Since the date of such financial statements, there has been no
materially adverse change in the financial condition, operation or business of
Trustor from that set forth in said financial statements.


 


(b)                                 Trustor will maintain full and accurate books
and records of accounts in accordance with generally accepted accounting
principles consistently applied in which full, true and correct entries shall
be promptly made with respect to Trustor, the Trust Property and the operation
thereof, and will permit all such books and records (including without
limitation all


 


46





















 


contracts, statements, invoices, bills and claims for labor, materials
and services supplied for the construction, repair or operation of the
Improvements) to be inspected or audited and copies made by Beneficiary and its
representatives during normal business hours and at any other reasonable times.
Trustor will furnish, or cause to be furnished, to Beneficiary on or before forty-five
(45) calendar days after the end of each calendar quarter the following items,
each certified by Trustor as being true and correct, in such format and in such
detail as Beneficiary may request: (i) a written statement (rent roll)
dated as of the last day of each such calendar quarter identifying each of the
Leases by the term, space occupied, rental required to be paid, security
deposit paid, any rental concessions, commencement date, expiration date,
options to renew or expand, expense recovery provisions, and identifying any
defaults or payment delinquencies thereunder; (ii) monthly and
year-to-date operating statements prepared for each calendar month during each
such calendar quarter reporting period detailing the total revenues received,
total expenses incurred, total cost of all capital improvements, total debt
service and total cash flow. From the date hereof through the earlier of the
date twelve (12) months after the date hereof or the date of disposition of the
Loan by Beneficiary in a Securitization, and during the continuance of a Event
of Default, Trustor shall furnish on a monthly basis each of the items listed
in the immediately preceding sentence (collectively, the “Pre-Securitization
Financials”) within twenty (20) days after the end of each calendar
month. Trustor’s annual financial statements shall include, except with respect
to tenants occupying and Leases covering residential dwelling units or
manufactured or mobile home pad sites, (i) a list of the tenants, if any,
occupying more than twenty (20%) percent of the total floor area of the
Improvements, and (ii) a breakdown showing the year in which each Lease
then in effect expires and the percentage of total floor area of the
Improvements and the percentage of base rent with respect to which Leases shall
expire in each such year, each such percentage to be expressed on both a per
year and a cumulative basis. Within ninety (90) days following the end of each
calendar year, Trustor shall furnish statements of its financial affairs and
condition including a balance sheet and a statement of profit and loss for the
Trustor in such detail and format as Beneficiary may request, and setting forth
the financial condition and the income and expenses for the Trust Property for
the immediately preceding calendar year. Trustor’s annual financial statements
shall be accompanied by a certificate executed by its chief financial officer
or by an authorized representative of Trustor or its Governing Entity, as
applicable, stating that each such annual financial statement presents fairly
the financial condition of the Trust Property being reported upon and has been
prepared in accordance with generally accepted accounting principles
consistently applied, subject to changes resulting from audit and normal
year-end audit adjustments. Upon request of Lender, Trustor’s annual financial
statements delivered hereunder shall be audited by a “Big Four” accounting firm
or other accounting firm satisfactory to Beneficiary whose opinion shall be to
the effect that such financial statements have been prepared in accordance with
generally accepted accounting principles and shall not be qualified as to the
scope of the audit or as to the status of Borrower as a going concern. At any
time and from time to time Trustor shall deliver to Beneficiary or its agents
such other financial data as Beneficiary or its agents shall reasonably request
with respect to the ownership, maintenance, use and operation of the Trust
Property.


 


(c)                                  In the event that Trustor fails to provide to
Beneficiary or its designee any of the financial statements, certificates,
reports or information (the “Required Records”)
required by this Paragraph 17 within thirty (30) days after the date
upon which such Required Record is due, Trustor shall pay to Beneficiary, at
Beneficiary’s option and in its sole discretion, an amount


 


47





















 


equal to $5,000; provided  that. Beneficiary has given at
least fifteen (15) days prior written notice to Trustor of such failure by
Trustor to timely submit the applicable Required Record and the opportunity to
cure such default by delivering the applicable Required Record during such
fifteen (15) day period. Notwithstanding the foregoing, in the event that
Trustor fails to provide Beneficiary with Pre-Securitization Financials on or
before the date they are due, Trustor shall pay to Beneficiary at Beneficiary’s
option and in its sole discretion, an amount equal to $5,000 for each month
that Trustor fails to deliver the required Pre-Securitization Financials.


 


18.        Performance of Other
Agreements. Trustor shall
observe and perform each and every term to be observed or performed by Trustor
pursuant to the terms of any of the Intangibles or any other agreement or
recorded instrument affecting or pertaining to the Trust Property. Trustor
further covenants and agrees to (a) give prompt notice to the Beneficiary
of any notice received by the Trustor concerning any of the Intangibles or any
such other agreement or recorded instruments, together with a complete copy of
any such notice, (b) enforce, short of termination thereof, the
performance and observance of each and every term, covenant and provision of
the Intangibles and any such other agreement and recorded instrument to be
performed or observed, if any, and (c) not terminate any of the
Intangibles or any such other agreement or recorded statement without the prior
written consent of the Beneficiary.


 


19.        Further Acts; Assignments
and Participations.


 


(a)                                  Trustor will, at the cost of Trustor, and
without expense to Beneficiary, do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, Uniform Commercial Code financing statements, financing statement
amendments or continuation statements, transfers and assurances as Beneficiary
shall, from time to time, require, for the better assuring, conveying,
assigning, transferring, and confirming unto Beneficiary the property and
rights hereby deeded, mortgaged, given, granted, bargained, sold, alienated,
enfeoffed, conveyed, confirmed, pledged, assigned and hypothecated or intended
now or hereafter so to be, or which Trustor may be or may hereafter become
bound to convey or assign to Beneficiary, or for carrying out the intention or
facilitating the performance of the terms of this Deed of Trust or for filing,
registering or recording this Deed of Trust or for facilitating the sale of the
Loan and the Loan Documents as described in Paragraph 19(b) below. Trustor,
on demand, will execute and deliver and hereby authorizes Beneficiary to
execute in the name of Trustor or without the signature of Trustor to the
extent Beneficiary may lawfully do so, one or more financing statements,
financing statement amendments, chattel mortgages or other instruments, to
evidence more effectively the security interest of Beneficiary in the Trust Property.
Upon foreclosure, the appointment of a receiver or any other relevant action,
Trustor will, at the cost of Trustor and without expense to Beneficiary,
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 Trust Property. Trustor grants to Beneficiary an irrevocable
power of attorney coupled with an interest for the purpose of exercising and
perfecting any and all rights and remedies available to Beneficiary at law and
in equity, including, without limitation, such rights and remedies available to
Beneficiary pursuant to this paragraph.


 


(b)                                 Beneficiary and each assignee of all or a
portion of the Loan shall have the right from time to time in its discretion to
sell one or more of the Notes or any interest therein (an “Assignment”) and/or sell a participation
interest in one or more of the Notes (a


 


48





















 


“Participation”). Trustor agrees reasonably to cooperate with Beneficiary, at Beneficiary’s
request, in order to effectuate any such Assignment or Participation. In the
case of an Assignment, (i) each assignee shall have, to the extent of such
Assignment, the rights, benefits and obligations of the assigning Beneficiary
as a “Beneficiary” hereunder and in such capacity under the other Loan
Documents, (ii) the assigning Beneficiary shall, to the extent that rights
and obligations under the Loan Documents have been assigned by it pursuant to
an Assignment, relinquish its rights and be released from its obligations under
the Loan Documents, and (iii) one Beneficiary shall serve as agent for all
Beneficiaries and shall be the sole Beneficiary to whom notices, requests and
other communications shall be addressed and the sole party authorized to grant
or withhold consents hereunder on behalf of all Beneficiaries (subject, in each
case, to appointment of a Servicer, to receive such notices, requests and other
communications and/or to grant or withhold consents, as the case may be) and to
be the sole Beneficiary to designate the account to which payments shall be
made by Trustor to the Beneficiaries hereunder. Goldman Sachs Mortgage Company
shall maintain, or cause to be maintained, as agent for Trustor, a register at
85 Broad Street, New York, New York or such other address as it shall notify
Trustor in writing, on which it shall enter the name or names of the registered
owner or owners from time to time of the Notes. Trustor agrees that upon
effectiveness of any Assignment of any Note in part, Trustor will promptly
provide to the assignor and the assignee separate promissory notes in the
amount of their respective interests (but, if applicable, with a notation
thereon that it is given in substitution for and replacement of an original
Note or any replacement thereof), and otherwise in the form of such Note, upon
return of the Note then being replaced. Each potential or actual assignee,
participant, investor in a Securitization, and each Rating Agency, shall be
entitled to receive all information received by Beneficiary under the Loan
Documents. After the effectiveness of any Assignment, the party conveying the
Assignment shall provide notice to Trustor and each Beneficiary of the identity
and address of the assignee. Notwithstanding anything in this Deed of Trust to
the contrary, after an Assignment, the assigning Beneficiary (in addition to
the assignee) shall continue to have the benefits of any indemnifications
contained in this Deed of Trust and other Loan Documents which such assigning
Beneficiary had prior to such assignment with respect to matters occurring
prior to the date of such assignment.


 


(c)                                  If, pursuant to this Paragraph, any interest
in any Note is transferred to any transferee that is not a U.S. Person, the
transferor Beneficiary shall cause such transferee, concurrently with the
effectiveness of such transfer, (i) to furnish to the transferor Beneficiary
either Form W-8BEN or Form W-8ECI or any other form in order to
establish an exemption from, or reduction in the rate of, U.S. withholding tax
on all interest payments hereunder, and (ii) to agree (for the benefit of
Beneficiary and Trustor) to provide the transferor Beneficiary a new Form W-8BEN
or Form W-8ECI or any forms reasonably requested in order to establish an
exemption from, or reduction in the rate of, U.S. withholding tax upon the
expiration or obsolescence of any previously delivered form and comparable
statements in accordance with applicable U.S. laws and regulations and
amendments duly executed and completed by such transferee, and to comply from
time to time with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.


 


20.        Recording of Deed of Trust,
Etc.
Trustor forthwith upon the
execution and delivery of this Deed of Trust and thereafter, from time to time,
will cause this Deed of Trust, and any security instrument creating a lien or
security interest or evidencing the lien hereof upon the Trust Property and
each


 


49





















 


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 Beneficiary in, the Trust Property. Trustor will pay all
filing, registration or recording fees, and all expenses incident to the
preparation, execution and acknowledgment of this Deed of Trust, any deed of
trust supplemental hereto, any security instrument with respect to the Trust
Property and any instrument of further assurance, and all federal, state,
county and municipal, taxes, duties, imposts, assessments and charges arising
out of or in connection with the execution and delivery of this Deed of Trust,
any deed of trust supplemental hereto, any security instrument with respect to
the Trust Property or any instrument of further assurance, except where
prohibited by law so to do. TRUSTOR HEREBY
AGREES, AT ITS SOLE COST AND EXPENSE, TO PROTECT, DEFEND, INDEMNIFY, RELEASE
AND HOLD HARMLESS THE INDEMNIFIED PARTIES (AS DEFINED BELOW) FROM AND AGAINST
ANY AND ALL LOSSES (AS DEFINED BELOW) IMPOSED UPON OR INCURRED BY OR ASSERTED
AGAINST ANY INDEMNIFIED PARTIES AND DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN
ANY WAY RELATING TO ANY TAX ON THE MAKING AND/OR RECORDING OF ANY OF THE LOAN
DOCUMENTS.


 


21.        Notice of Certain Events.  Trustor agrees to give prompt notice to Beneficiary of the insolvency
or bankruptcy filing of Trustor or the death, insolvency or bankruptcy filing
of any Guarantor.


 


22.        Events of Default.  The Debt shall become immediately due and payable at the option of Beneficiary
upon the happening of any one or more of the following events of default (each
an “Event of Default”):


 


(a)                                  failure to make payment of (1) interest
or principal when due, or (2) the entire Debt on the Maturity Date;


 


(b)                                 Trustor shall default, and such default shall
continue for at least two Business Days after notice to Trustor that such
amounts are owing, in the payment when due of fees, expenses or other amounts
owing hereunder, under the Note or under any of the other Loan Documents (other
than principal and interest owing hereunder or under the Note);


 


(c)                                  subject to Trustor’s right to contest as
provided herein, if any of the Taxes or Other Charges are not paid when the
same are due and payable (unless and to the extent such failure is due to Beneficiary’s
failure to pay Taxes when sums sufficient for such purpose are on deposit in
the Tax and Insurance Impound and no other Event of Default has occurred and is
continuing);


 


(d)                                 if the Policies are not kept in full force
and effect (unless the same results from Beneficiary’s failure to pay the
applicable premiums therefor when sums sufficient for such purpose are on
deposit in the Tax and Insurance Impound and no other Event of Default exits
that is then continuing), or if the evidence of the Policies are not delivered
to Beneficiary when required under Paragraph 2 and such failure
continues for ten (10) days after written notice thereof from Beneficiary
to Trustor;


 


50





















 


(e)                                  if Trustor or its Governing Entity
consummates a Transfer that is not expressly permitted under the terms of this
Deed of Trust without Beneficiary’s prior written consent.


 


(f)                                    any party shall acquire more than 49% of the
direct or indirect equity interest in Trustor or Trustor’s Governing Entity
(even if not constituting a Change of Control) and Trustor shall fail to
deliver to Beneficiary with respect to such new equityholder a new
non-consolidation opinion satisfactory to (A) prior to the occurrence of
any Securitization of the Loan, Beneficiary (Beneficiary’s approval of any such
non-consolidation opinion which is in substantially the form of the Insolvency
Opinion not to be unreasonably withheld), and (B) at any time following
any Securitization or series of Securitizations of the Loan, each of the Rating
Agencies rating such Securitization or Securitizations;


 


(g)                                 if any representation or warranty of Trustor,
or of any Guarantor, made herein or in any other Loan Document or in any
certificate, report, financial statement or other instrument or document
furnished to Beneficiary shall have been false or misleading in any material
respect when made, and such representation or warranty shall, if the condition
that gave rise to the breach of representation or warranty is susceptible of
being cured, remain untrue or incorrect in a material respect for a period
ending thirty (30) days after Trustor shall receive written notice of the
falsity or inaccuracy of such representation or warranty from Beneficiary;
provided, however, that if the breach of the representation or warranty is
susceptible of cure but cannot reasonably be cured within such thirty (30)-day
period and Trustor shall have commenced to cure such breach within such thirty
(30)-day period and thereafter diligently and expeditiously proceeds to cure
the same, Trustor shall have such additional time as is reasonably necessary to
effect such cure, but in no event in excess of one hundred twenty (120) days
from the original notice;


 


(h)                                 if Trustor or any Guarantor shall make an assignment
for the benefit of creditors or if Trustor or any Guarantor shall generally not
be paying its debts as they become due;


 


(i)                                     if a receiver, liquidator or trustee of
Trustor or of any Guarantor shall be appointed or if Trustor or any Guarantor
shall be adjudicated a bankrupt or insolvent, or if any petition for
bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law,
or any similar federal or state law, shall be filed by or against, consented
to, or acquiesced in by, Trustor or any Guarantor or if any proceeding for the
dissolution or liquidation of Trustor or of any Guarantor shall be instituted;
however, if such appointment, adjudication, petition or proceeding was
involuntary and not consented to by Trustor or such Guarantor, upon the same
not being discharged, stayed or dismissed within sixty (60) days;


 


(j)                                     if Trustor shall be in default under any
other deed of trust or security agreement covering any part of the Trust
Property whether it be superior or junior in lien to this Deed of Trust;


 


(k)                                  subject to Trustor’s right to contest certain
liens as provided for in this Deed of Trust, if the Trust Property becomes
subject to any lien, except a lien for local real estate taxes and assessments
not then due and payable, and such lien is not discharged of record (by
payment, bonding or otherwise) within thirty (30) calendar days after the date
Trustor receives written notice the same is filed of record;


 


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(l)                                     if any federal tax lien is filed against
Trustor, Guarantor or either of their respective Governing Entities, or any of
the Trust Property, and the same is not discharged of record within thirty (30)
calendar days after the date the same is filed of record;


 


(m)                               if Trustor fails to cure properly any violations of laws or ordinances
affecting or which may be interpreted to affect the Trust Property within
thirty (30) days after Trustor first receives notice of any such violations;
provided, however, if such default is reasonably susceptible of cure, but not
within such thirty (30) day period, then Trustor may be permitted up to an
additional one hundred twenty (120) days, or such shorter additional period
before a Material Adverse Effect would occur, to cure such default provided that
Trustor commences a cure within such initial thirty (30) day period and
thereafter diligently and continuously pursues such cure;


 


(n)                                 except as permitted in this Deed of Trust or
required pursuant to the terms of any Lease, the alteration, improvement,
demolition or removal of any of the Improvements, or any construction on the
Premises, without the prior consent of Beneficiary;


 


(o)                                 if Trustor shall continue to be in default
under any term, covenant, or provision of the Note or any of the other Loan Documents
other than those in this Paragraph 22, beyond applicable cure periods
contained in those documents, or if no cure period is specified in such Loan
Document for a non-monetary default, the cure period specified in Paragraph
22(p);


 


(p)                                 if Trustor fails to cure a default under any
other term, covenant or provision of this Deed of Trust within thirty (30) days
after Trustor first receives notice of any such default, and such default is
susceptible of being cured, such default shall remain uncured for a period
ending thirty (30) days after Trustor first receives notice of any such
default; provided, however, that if the default is reasonably susceptible of
cure but cannot reasonably be cured within such thirty (30)-day period and
Trustor shall have commenced to cure such default within such thirty (30)-day
period and thereafter diligently and expeditiously proceeds to cure the same,
Trustor shall have such additional time as is reasonably necessary to effect
such cure, but in no event in excess of one hundred twenty (120) days from the
original notice or such shorter time after which a Material Adverse Effect
would occur;


 


(q)                                 if, without Beneficiary’s prior written
consent or in connection with the engagement of a replacement Manager
reasonably satisfactory to Beneficiary, (i) the Management Agreement is
terminated by Trustor, (ii) Trustor permits or consents to a transfer of
the ownership, management or control of Manager other than to Trustor’s
Governing Entity or any affiliate thereof or any affiliate of Republic
Properties Corporation, or (iii) there is a material change in the
Management Agreement; or


 


(r)                                    if Trustor ceases to continuously operate the
Improvements or any material portion thereof for any reason whatsoever (other
than temporary cessation in connection with any repair or renovation thereof
undertaken pursuant to the terms of this Deed of Trust or with the prior
written consent of Beneficiary).


 


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23.        Late Payment Charge;
Application of Payments After an Event of Default.  If any portion of the
Debt is not paid when due, Trustor shall pay to Beneficiary upon demand a late
fee in an amount equal to the lesser of five percent (5%) of such unpaid sum or
the maximum amount permitted by applicable law, and such amount shall be
secured by this Deed of Trust. Notwithstanding anything to the contrary
contained in this Deed of Trust or any of the other Loan Documents, during the
continuance of an Event of Default, all amounts received by Beneficiary in
respect of the Loan shall be applied at Beneficiary’s sole discretion either
toward the components of the Debt (e.g., Beneficiary’s expenses in
enforcing the Loan, interest, principal and other amounts in respect of the
Loan) and the Notes Components in such sequence as Beneficiary shall elect in
its sole discretion, or toward such other obligations of Trustor under the Loan
Documents, and in such sequence, as Beneficiary shall determine in its sole
discretion.


 


24.        Beneficiary’s Right To Cure
Defaults. Upon the occurrence
and during the continuance of any Event of Default or if Trustor fails to make
any payment or to do any act as herein provided, Beneficiary may, but without
any obligation to do so and without notice to or demand on Trustor and without releasing
Trustor from any obligation hereunder, make or do the same in such manner and
to such extent as Beneficiary may deem necessary to protect the security
hereof.  Beneficiary is authorized to enter
upon the Trust Property for such purposes or appear in, defend, or bring any
action or proceeding to protect its interest in the Trust Property or to
foreclose this Deed of Trust or collect the Debt, and the cost and expense
thereof (including reasonable attorneys’ fees and disbursements to the extent
permitted by law), with interest at the Default Rate (as defined in the Deed of
Trust) for the period after notice from Beneficiary that such cost or expense
was incurred to the date of payment to Beneficiary, shall constitute a portion
of the Debt, shall be secured by this Deed of Trust and the other Loan
Documents and shall be due and payable to Beneficiary upon demand.


 


25.        Remedies.


 


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


 


(i)                                     Declare the entire Debt to be immediately due
and payable.


 


(ii)                                  Institute a proceeding or proceedings,
judicial or nonjudicial, by advertisement or otherwise, for the complete
foreclosure of this Deed of Trust in which case the Trust Property or any
interest therein 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.


 


(iii)                               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 Deed of Trust for the portion
of the Debt then due and payable, subject to the continuing lien of this Deed
of Trust for the balance of the Debt not then due.


 


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(iv)                              Sell for cash or upon credit the Trust
Property or any part thereof and all estate, claim, demand, right, title and
interest of Trustor therein and rights of redemption thereof, pursuant to the
power of sale contained herein 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.


 


(v)                                 Institute an action, suit or proceeding in
equity for the specific performance of any covenant, condition or agreement
contained herein, or in any of the other Loan Documents.


 


(vi)                              Recover judgment on the Note either before,
during or after any proceedings for the enforcement of this Deed of Trust.


 


(vii)                           Apply for the appointment of a trustee,
receiver, liquidator or conservator of the Trust Property, without notice and
without regard for the adequacy of the security for the Debt and without regard
for the solvency of the Trustor, any Guarantor or of any person, firm or other
entity liable for the payment of the Debt.


 


(viii)                        At any time, and without notice, either in
person, by agent, or by receiver to be appointed by a court, enter and take
possession of the Trust Property or any part thereof, and in its own name, sue
for or otherwise collect the Rents. Trustor hereby agrees that Beneficiary
shall have the right (in its sole discretion), whenever an Event of Default has
occurred and is continuing, to terminate the License granted to Trustor in Paragraph
7 hereof, and thereafter direct by written notice to the lessees under the
Leases (“Lease Rent Notice”) to pay directly to
Beneficiary, or Trustee on Beneficiary’s behalf, the Rents due and to become
due under the Leases and attorn in respect of all other obligations thereunder
directly to Beneficiary, or Trustee on Beneficiary’s behalf, without any
obligation on the part of lessees to determine whether an Event of Default does
in fact exist or has in fact occurred. All Rents collected by Beneficiary, or
Trustee on Beneficiary’s behalf, shall be applied as provided for in Paragraph
7 of this Deed of Trust; provided, however, that if the costs, expenses,
and attorneys’ fees shall exceed the amount of Rents collected, the excess
shall be added to the Debt, shall bear interest at the Default Rate, and shall
be immediately due and payable. The entering upon and taking possession of the
Trust Property, the collection of Rents, and the application thereof as
aforesaid shall not cure or waive any Event of Default or notice of default, if
any, hereunder nor invalidate any act done pursuant to such notice, except to
the extent any such default is fully cured. Failure or discontinuance by
Beneficiary, or Trustee on Beneficiary’s behalf, at any time or from time to
time, to collect said Rents shall not in any manner impair the subsequent
enforcement by Beneficiary, or Trustee on Beneficiary’s behalf, of the right,
power and authority herein conferred upon it. Nothing contained herein, nor the
exercise of any right, power, or authority herein granted to Beneficiary, or
Trustee on Beneficiary’s behalf, shall be, or shall be construed to be, an
affirmation by it of any tenancy, lease, or option, nor an assumption of
liability under, nor the subordination of, the lien or charge of this Deed of
Trust, to any such tenancy, lease, or option, nor an election of judicial
relief, if any such relief is requested or obtained as to Leases or Rents, with
respect to the Trust Property or any collateral given by Trustor to


 


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Beneficiary or Trustee on Beneficiary’s behalf. In addition, from time
to time Beneficiary may elect, and notice hereby is given to each lessee under
any Lease, to subordinate the lien of this Deed of Trust to any Lease by
unilaterally executing and recording an instrument of subordination, and upon
such election the lien of this Deed of Trust shall be subordinate to the Lease
identified in such instrument of subordination; provided, however, in each
instance such subordination will not affect or be applicable to, and expressly
excludes any lien, charge, encumbrance, security interest, claim, easement,
restriction, option, covenant and other rights, titles, interests or estates of
any nature whatsoever with respect to all or any portion of the Trust Property
to the extent that the same may have arisen or intervened during the period
between the recordation of this Deed of Trust and the execution of the Lease
identified in such instrument of subordination.


 


(ix)                                Enter into or upon the Trust Property, either
personally or by its agents, nominees or attorneys and dispossess Trustor and
its agents and servants therefrom, and thereupon Beneficiary may (A) use,
operate, manage, control, insure, maintain, repair, restore and otherwise deal
with all and every part of the Trust Property and conduct the business thereat;
(B) complete any construction on the Trust Property in such manner and
form as Beneficiary deems advisable; (C) make alterations, additions,
renewals, replacements and improvements to or on the Trust Property; (D) exercise
all rights and powers of Trustor with respect to the Trust Property, whether in
the name of Trustor or otherwise.


 


(x)                                   Pursue such other rights and remedies as may
be available at law or in equity or under the Uniform Commercial Code.


 


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


 


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


 


(c)                                  Beneficiary or Trustee may adjourn from time
to time any sale by it to be made under or by virtue of this Deed of Trust 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 provision
of law, Beneficiary or Trustee, 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, Beneficiary, 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. Any sale or sales made under or by virtue of this paragraph,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of


 


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foreclosure and sale, shall operate to divest all the estate, right,
title, interest, claim and demand whatsoever, whether at law or in equity, of
Trustor in and to the properties and rights so sold, and shall be a perpetual
bar both at law and in equity against Trustor and against any and all persons
claiming or who may claim the same, or any part thereof from, through or under
Trustor.


 


(e)                                  Upon any sale made under or by virtue of this
paragraph, 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, Beneficiary may bid for and acquire the Trust 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
Beneficiary is authorized to deduct under this Deed of Trust.


 


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


 


(g)                                 Beneficiary may terminate or rescind any
proceeding or other action brought in connection with its exercise of the
remedies provided in this paragraph at any time before the conclusion thereof,
as determined in Beneficiary’s sole discretion and without prejudice to Beneficiary.


 


(h)                                 Beneficiary or Trustee may resort to any
remedies and the security given by the Note, this Deed of Trust or in any of
the other Loan Documents in whole or in part, and in such portions and in such
order as determined by Beneficiary’s sole discretion. No such action shall in
any way be considered a waiver of any rights, benefits or remedies evidenced or
provided by the Note, this Deed of Trust or in any of the other Loan Documents.
The failure of Beneficiary or Trustee to exercise any right, remedy or option
provided in the Note, this Deed of Trust or in any of the other Loan Documents
shall not be deemed a waiver of such right, remedy or option or of any covenant
or obligation secured by the Note, this Deed of Trust or the other Loan
Documents. No acceptance by Beneficiary of any payment after the occurrence of
any Event of Default and no payment by Beneficiary of any obligation for which
Trustor is liable hereunder shall be deemed to waive or cure any Event of
Default with respect to Trustor, or Trustor’s liability to pay such obligation.
No sale of all or any portion of the Trust Property, no forbearance on the part
of Beneficiary or Trustee, and no extension of time for the payment of the
whole or any portion of the Debt or any other indulgence given by Beneficiary
or Trustee to Trustor, shall operate to release or in any manner affect the
interest of Beneficiary in the remaining Trust Property or the liability of
Trustor to pay the Debt. No waiver by Beneficiary or Trustee shall be effective
unless it is in writing and then only to the extent specifically stated. All
costs and expenses of Beneficiary in exercising its rights and remedies under
this Paragraph 25 (including reasonable attorneys’ fees and
disbursements to the extent permitted by law), shall be paid by Trustor
immediately upon notice from Beneficiary or Trustee, with interest at the
Default Rate for the period after notice from Beneficiary or Trustee and such
costs and expenses shall constitute a portion of the Debt and shall be secured
by this Deed of Trust.


 


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


 


26.        Right of Entry and
Inspection.  In addition to any other rights or remedies
granted under this Deed of Trust, Beneficiary, Trustee and their agents shall
have the right to enter and inspect the Premises, Improvements and Equipment at
any reasonable time during the Term, and inspect, examine, audit and copy
Trustor’s books and records, including all recorded data of any kind or nature,
regardless of the medium of recording. The cost of such inspections,
examinations, copying or audits shall be borne by Trustor should Beneficiary
determine that an Event of Default has occurred and is continuing, including
the cost of all follow up or additional investigations, audits or inquiries
deemed reasonably necessary by Beneficiary. The cost of such inspections,
examinations, audits and copying, if not paid for by Trustor following demand,
may be added to the Debt and shall bear interest thereafter until paid at the Default
Rate.  If Trustor prohibits, bars or
fails to permit Beneficiary, Trustee or their agents from entering and
inspecting the Premises, Improvements and Equipment at any reasonable time
during the Term, or from inspecting, examining., auditing and copying Trustor’s
books and records, including all recorded data of any kind or nature,
regardless of the medium of recording, for more than five (5) days after a
request is made by Beneficiary to do so, Trustor agrees to pay Beneficiary on
demand the sum of $1,000.00 for each day after such five (5) day period
that Trustor so prohibits, bars or fails, and such sum or sums shall be part of
the Debt.


 


27.        Security Agreement. This Deed of Trust is both a real property
deed of trust and a “security agreement” within the meaning of the Uniform
Commercial Code. The Trust Property includes both real and personal property
and all other assets, rights and interests, whether tangible or intangible in
nature, including all proceeds and products thereof, and all supporting
obligations ancillary to or arising in any way in connection therewith, of
Trustor in the Trust Property. It is the intent of Trustor and Beneficiary that
the lien and security interest granted in this Deed of Trust encumber all
Leases and that all items contained in the definition of “Leases” which are
included within the Uniform Commercial Code be covered by the security interest
granted in this Paragraph 27; and all items contained in the definition
of “Leases” which are excluded from the Uniform Commercial Code be covered by
the grant of a deed of trust lien against the Trust Property contained in this
Deed of Trust. Trustor by executing and delivering this Deed of Trust has
granted and hereby grants to Beneficiary and Trustee, as security for the Debt,
a security interest in the Trust Property to the full extent that the Trust
Property may be subject to the Uniform Commercial Code (said portion of the
Trust Property so subject to the Uniform Commercial Code being called in this
paragraph the “Collateral”). Trustor
hereby agrees with Beneficiary to execute and deliver to Beneficiary, in form
and substance satisfactory to Beneficiary, such financing statements, financing
statement amendments and such further assurances as Beneficiary may from time
to time, reasonably consider necessary to create, perfect, and preserve
Beneficiary’s security interest herein granted. 
This Deed of Trust shall also constitute a “fixture filing” for the
purposes of the Uniform Commercial Code. As such, this Deed of Trust 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 Deed of Trust. If an Event of Default shall occur that it then continuing,
Beneficiary and Trustee, in addition to any other rights and remedies


 


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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
Uniform Commercial Code, 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 Beneficiary or Trustee may deem necessary
for the care, protection and preservation of the Collateral. Upon request or
demand of Beneficiary or Trustee, Trustor shall at its expense assemble the
Collateral and make it available to Beneficiary and Trustee at a convenient
place acceptable to Beneficiary. Trustor shall pay to Beneficiary and Trustee
on demand any and all expenses, including fees and disbursements, incurred or
paid by Beneficiary or Trustee 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 Beneficiary and Trustee with
respect to the Collateral sent to Trustor in accordance with the provisions
hereof at least five (5) days prior to such action, shall constitute
commercially reasonable notice to Trustor; provided that if Beneficiary fails
to comply with this sentence in any respect, its liability for such failure
shall be limited to the liability (if any) imposed on it as a matter of law
under the Uniform Commercial Code. The proceeds of any disposition of the
Collateral, or any part thereof, may be applied by Beneficiary to the payment
of the Debt in such priority and proportions as Beneficiary in its sole
discretion shall deem proper. Beneficiary may comply with any applicable state
or federal law or regulatory requirements in connection with a disposition of
the Collateral, and such compliance will not be considered or deemed to affect
adversely the commercial reasonableness of any sale of the Collateral.
Beneficiary may sell the Collateral without giving any warranties as to the
Collateral, and specifically disclaim any warranties of title, merchantability,
fitness for a specific purpose or the like, and this procedure will not be
considered or deemed to affect adversely the commercial reasonableness of any
sale of the Collateral. Trustor acknowledges that a private sale of the
Collateral may result in less proceeds than a public sale, and Trustor
acknowledges that the Collateral may be sold at a loss to Trustor, and that, in
such event, Beneficiary shall have no liability or responsibility to Trustor or
any other party for such loss. If Beneficiary shall require the filing or
recording of additional Uniform Commercial Code financing statements,
amendments thereto or continuation statements, Trustor shall, promptly after
request, execute, file and record such Uniform Commercial Code financing
statements, amendments thereto or continuation statements as Beneficiary 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 Trustor’s obligations under the Note,
this Deed of Trust or any of the other Loan Documents. Trustor hereby
authorizes Beneficiary at any time and from time to time to file any initial
financing statements, amendments thereto and continuation statements with or
without the signature of Trustor as authorized by applicable law, including any
statements describing the collateral as being all assets of Trustor, it being
acknowledged that all such assets subject to the Uniform Commercial Code are
intended to be included in the Collateral. For purposes of such filings,
Trustor agrees to furnish promptly any information reasonably requested by
Beneficiary. Trustor also hereby ratifies its authorization for Beneficiary to
have filed any like initial financing statements, amendments thereto or
continuation statements if filed prior to the date of this Deed of Trust.
Trustor hereby irrevocably appoints Beneficiary and any officer or agent of
Beneficiary, with full power of substitution, as its true and lawful
attorney-in-fact, coupled with an interest, with full irrevocable power and
authority in the place and stead of Trustor or in Trustor’s name to execute in
Trustor’s name any such documents and to otherwise carry out the purposes of
this Paragraph, to the extent that Trustor’s authorization above is
deemed not to be sufficient as a matter of law. To the extent permitted by law,
Trustor hereby ratifies all acts said attorneys-in-fact shall lawfully do, have
done in the past or cause to be done in the future by virtue hereof.


 


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28.        Actions and Proceedings. Beneficiary or Trustee has the right to
appear in and defend any action or proceeding brought with respect to the Trust
Property and to bring any action or proceeding, in the name and on behalf of
Trustor, which Beneficiary, in its sole discretion, decides should be brought
to protect their interest in the Trust Property. Beneficiary shall, at its
option, be subrogated to the lien of any 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.


 


29.        Contest of Certain Claims.  At its own expense, Trustor may contest by appropriate legal proceeding,
promptly initiated and conducted in good faith and with due diligence, the
amount or validity or application in whole or in part of any Taxes, Other
Charges or mechanic’s or materialman’s lien asserted against the Trust Property
if, and so long as, (a) such legal proceedings shall operate to prevent the
enforcement or collection of the same and the sale of the Trust Property or any
part thereof, to satisfy the same and either (i) within sixty (60) days of
the inception of such Lien such Lien is released or discharged of record or is
fully insured over by the title issuer that issued the title insurance policy
that insures the lien of this Deed of Trust such that the Lien is not an
exception to Beneficiary’s title to the Trust Property pursuant to this Deed of
Trust, or (ii) Trustor shall have furnished to Beneficiary, prior to the
expiration of such sixty (60) day period a cash deposit, or an indemnity bond
satisfactory to Beneficiary with a surety satisfactory to Beneficiary, in the
amount of one hundred twenty-five percent of the Taxes, Other Charges or
mechanic’s or materialman’s lien claim, plus a reasonable additional sum to pay
all costs, interest and penalties that may be imposed or incurred in connection
therewith, to assure payment of the matters under contest and to prevent any
sale or forfeiture of the Trust Property or any part thereof; (b) Trustor
shall promptly upon final determination thereof pay the amount of any such Taxes,
Other Charges or claim so determined, together with all costs, interest and
penalties which may be payable in connection therewith; and (c) the
failure to pay the Taxes, Other Charges or mechanic’s or materialman’s lien
claim does not constitute a default under any other deed of trust, mortgage or
security interest covering or affecting any part of the Trust Property.
Notwithstanding the foregoing, Trustor shall immediately upon request of
Beneficiary pay (and if Trustor shall fail so to do, Beneficiary may, but shall
not be required to, pay or cause to be discharged or bonded against) any such
Taxes, Other Charges or claim notwithstanding such contest, if in the
reasonable opinion of Beneficiary, the Trust Property or any part thereof or
interest therein may be in danger of being sold, forfeited, foreclosed,
terminated, canceled or lost. Beneficiary may pay over any such cash deposit or
part thereof to the claimant entitled thereto at any time when, in the
reasonable judgment of Beneficiary, the entitlement of such claimant is
established.


 


30.        Recovery of Sums Required to
be Paid. Beneficiary shall
have the right from time to time to take action to recover any sum or sums
which constitute a part of the Debt as the same become due, without regard to
whether or not the balance of the Debt shall be due, and without prejudice to
the right of Beneficiary or Trustee thereafter to bring an action of
foreclosure, or any other action, for a default or defaults by Trustor existing
at the time such earlier action was commenced.


 


31.        Marshalling and Other
Matters. Trustor hereby
waives, to the extent permitted by law, the benefit of all 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 Trust Property or any part thereof or any interest therein.  Further, Trustor hereby expressly waives any
and all rights of redemption from sale under any order or decree of foreclosure
of this Deed of Trust on behalf of Trustor, and on behalf of each and every
person acquiring any interest in or title to the Trust Property subsequent to
the date of this Deed of Trust and on behalf of all persons to the extent
permitted by applicable law.


 


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32.        Hazardous Substances. All of the terms and provisions of Article II
of the Environmental Indemnity are hereby incorporated into this Deed of Trust
for all purposes as if set verbatim herein.


 


33.        Environmental Operations.  All of the terms and provisions of Section 3.1  of the Environmental Indemnity are hereby
incorporated into this Deed of Trust for all purposes as if set verbatim
herein.


 


34.        Environmental Monitoring.  All of the terms and provisions of Section 3.2 of the Environmental
Indemnity are hereby incorporated into this Deed of Trust for all purposes as
if set verbatim herein.


 


35.        Compliance with Law;
Alterations.


 


(a)                                  Trustor agrees that the Trust Property shall
at all times comply in all material respects with applicable with all Access
Laws.


 


(b)                                 Notwithstanding any provisions set forth
herein or in any other document regarding Beneficiary’s approval of alterations
of the Premises or Improvements, Trustor shall not alter the Premises or
Improvements in any manner which would increase Trustor’s responsibilities for
compliance with the applicable Access Laws without the prior written approval
of Beneficiary except to the extent that such increased responsibilities cannot
reasonably be expected to have a Material Adverse Effect. Beneficiary’s
approval of the plans, specifications, or working drawings for alterations of
the Premises or Improvements shall create no responsibility or liability on
behalf of Beneficiary for their completeness, design, sufficiency or their
compliance with the Access Laws. The foregoing shall apply to tenant
improvements constructed by Trustor or by any of its tenants. Beneficiary may
condition any such approval upon receipt of a certificate of Access Law compliance
from an independent architect, engineer, or other person acceptable to
Beneficiary.


 


(c)                                  Trustor agrees to give prompt notice to
Beneficiary of the receipt by Trustor of any complaints related to violation of
any Access Laws and of the commencement of any proceedings or investigations
which relate to compliance with applicable Access Laws.


 


(d)                                 Trustor shall take all appropriate measures
to prevent, and will not engage in or knowingly permit any party to engage in,
any criminal or illegal activities at the Premises or Improvements.


 


36.        Indemnification.


 


(a)                                  TRUSTOR, AT ITS SOLE COST
AND EXPENSE, SHALL PROTECT, DEFEND,
INDEMNIFY AND SAVE
HARMLESS
THE INDEMNIFIED PARTIES (DEFINED BELOW) FROM AND AGAINST ALL LOSSES (AS DEFINED
BELOW) IMPOSED UPON OR INCURRED BY OR ASSERTED AGAINST ANY OF THE INDEMNIFIED
PARTIES BY REASON OF (A) OWNERSHIP OF THIS DEED OF TRUST, THE TRUST
PROPERTY OR ANY INTEREST THEREIN OR RECEIPT OF ANY RENTS; (B) ANY
ACCIDENT, INJURY TO OR DEATH OF PERSONS OR LOSS OF OR DAMAGE TO PROPERTY
OCCURRING IN, ON OR ABOUT THE PREMISES OR IMPROVEMENTS OR ANY PART THEREOF
OR ON THE ADJOINING


 


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SIDEWALKS, CURBS, ADJACENT
PROPERTY OR ADJACENT PARKING AREAS, STREETS OR WAYS; (C) ANY USE, NONUSE
OR CONDITION IN, ON OR ABOUT THE PREMISES OR IMPROVEMENTS OR ANY PART THEREOF
OR ON ADJOINING SIDEWALKS, CURBS, ADJACENT PROPERTY OR ADJACENT PARKING AREAS,
STREETS OR WAYS; (D) ANY FAILURE ON THE PART OF TRUSTOR OR TRUSTEE TO
PERFORM OR COMPLY WITH ANY OF THE TERMS OF THIS DEED OF TRUST; (E) PERFORMANCE
OF ANY LABOR OR SERVICES OR THE FURNISHING OF ANY MATERIALS OR OTHER PROPERTY
IN RESPECT OF THE TRUST PROPERTY OR ANY PART THEREOF; (F) ANY FAILURE
OF THE TRUST PROPERTY TO COMPLY WITH ANY APPLICABLE LAW, INCLUDING ACCESS LAWS;
(G)ANY REPRESENTATION OR WARRANTY MADE IN THE NOTE, THIS DEED OF TRUST OR ANY
OF THE OTHER LOAN DOCUMENTS BEING FALSE OR MISLEADING IN ANY MATERIAL RESPECT
AS OF THE DATE SUCH REPRESENTATION OR WARRANTY WAS MADE; (H) ANY CLAIM BY
BROKERS, FINDERS OR SIMILAR PERSONS CLAIMING TO BE ENTITLED TO A COMMISSION IN
CONNECTION WITH ANY LEASE OR OTHER TRANSACTION INVOLVING THE TRUST PROPERTY OR
ANY PART THEREOF UNDER ANY LEGAL REQUIREMENT OR ANY LIABILITY ASSERTED
AGAINST ANY INDEMNIFIED PARTY WITH RESPECT THERETO; (I) ANY AND ALL CLAIMS AND
DEMANDS WHATSOEVER WHICH MAY BE ASSERTED AGAINST ANY INDEMNIFIED PARTY BY
REASON OF ANY ALLEGED OBLIGATIONS OR UNDERTAKINGS ON SUCH PARTY’S PART TO
PERFORM OR DISCHARGE ANY OF THE TERMS, COVENANTS, OR AGREEMENTS CONTAINED
IN ANY LEASE; AND (J) ALL CLAIMS, LIABILITIES, COSTS AND EXPENSES OF ANY KIND
IN ANY WAY RELATING TO OR ARISING FROM A CLAIM BY ANY FINANCIAL ADVISORS,
BROKERS, UNDERWRITERS, PLACEMENT AGENTS, AGENTS OR FINDERS THAT SUCH PERSON
ACTED ON BEHALF OF TRUSTOR IN CONNECTION WITH THE LOAN. HOWEVER, NOTHING HEREIN
SHALL BE CONSTRUED TO OBLIGATE TRUSTOR TO INDEMNIFY, DEFEND AND HOLD HARMLESS
ANY INDEMNIFIED PARTY FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, CLAIMS, ACTIONS, SUITS, COSTS AND EXPENSES ENACTED
AGAINST, IMPOSED ON OR INCURRED BY ANY INDEMNIFIED PARTY BY REASON OF SUCH
PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THIS INDEMNITY SHALL SURVIVE
PAYMENT IN FULL OF THE DEBT, THE TERMINATION, SATISFACTION, RELEASE OR
ASSIGNMENT OF THIS DEED OF TRUST AND THE EXERCISE BY BENEFICIARY OF ANY OF ITS
RIGHTS OR REMEDIES HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE ACQUISITION OF
THE TRUST PROPERTY BY FORECLOSURE OR A CONVEYANCE IN LIEU OF FORECLOSURE.


 


(b)                                 As used in this herein, the term (i) “Indemnified Parties” means (A) Beneficiary, (B) Trustee,
(C) any officers, directors, shareholders, partners, members, employees,
agents, attorneys, servants, representatives, contractors, subcontractors,
affiliates or subsidiaries of any and all of the foregoing, and (D) the
heirs, legal representatives, successors and assigns of any and all of the
foregoing (including, without limitation, any successors by


 


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merger, consolidation or acquisition of all or a substantial portion of
an Indemnified Party’s assets and business), in all cases whether during the
term of the Loan or as part of or following a foreclosure of the Loan; and (ii) the
term “Losses” means any and all claims, suits, liabilities
(including, without limitation, strict liabilities), actions, proceedings,
obligations, debts, demands, causes of action, damages, losses, costs,
expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in
settlement of whatever kind or nature (including but not limited to reasonable
attorneys’ fees and other costs of defense).


 


(c)                                  Upon written request by any Indemnified
Party, Trustor shall defend such Indemnified Party (if requested by any Indemnified
Party, in the name of the Indemnified Party) by attorneys and other
professionals approved by such Indemnified Party.  Notwithstanding the foregoing, any
Indemnified Party may, in its sole discretion, engage its own attorneys and
other professionals to defend or assist it, and, at the option of such
Indemnified Party, its attorneys shall control the resolution of any claim or
proceeding. Upon demand, Trustor shall pay or, in the sole discretion of the
Indemnified Parties, reimburse, the Indemnified Parties for the payment of reasonable
fees and disbursements of attorneys, engineers, environmental consultants, laboratories
and other professionals in connection therewith.


 


(d)                                 Any amounts payable to Beneficiary or Trustee
by reason of the application of this Paragraph 36 shall be secured by
this Deed of Trust and shall become immediately due and payable and shall bear
interest at the Default Rate from the date loss or damage is sustained by the
Indemnified Parties until paid.


 


37. Notices.
Any notice, demand,
statement, request or consent made hereunder shall be in writing, addressed to
the address, as set forth below, of the party to whom such notice is to be
given, or to such other address as Trustor, Beneficiary or Trustee, as the case
may be, shall designate in writing, and shall be deemed to be received by the
addressee on (i) the day such notice is personally delivered to such
addressee, (ii) the day on which such notice is delivered to the addressee
if deposited with the United States postal service first class certified mail,
return receipt requested (as indicated by the return receipt), (iii) the
day on which such notice is delivered to the addressee if delivered by a
nationally recognized overnight courier delivery service (as indicated by the
records of the delivery service), or (iv) the day facsimile transmission
is confirmed after transmission of such notice by telecopy to such telecopier
number as Trustor, Trustee or Beneficiary, as the case may be, shall have
previously designated in writing. Until further changes by notice delivered in
accordance with the provisions of this Paragraph, notices shall be delivered as
follows:


 


(a)                                  If to Trustor, c/o Republic Properties
Corporation, 1280 Maryland Avenue, SW, Suite 280, Washington, D.C 20024, with
a copy to Arent Fox PLLC (Attention: Eleanor Zappone, Esquire), 1050
Connecticut Avenue, NW, Washington, D.C. 20036-5339; and


 


(b)                                 If to Beneficiary, to Archon Financial, L.P.,
600 East Las Colinas Boulevard, Suite 450, Irving, Texas 75039, with copies
to Goldman Sachs Mortgage Company, 85 Broad Street, 11th Floor, New
York, New York 10004 Attention: J. Theodore Borter, and to Kroll, McNamara,
Evans & Delehanty, LLP, 29 South Main Street, West Hartford, CT 06107
Attention: Garrett J. Delehanty, Esq.


 


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38.        Authority.  Trustor (and the undersigned representative of Trustor, if any)
represent and warrant that it (or they, as the case may be) has full power,
authority and right to execute, deliver and perform its obligations pursuant to
this Deed of Trust, and to deed, mortgage, give, grant, bargain, sell, alien,
enfeoff, convey, confirm, warrant, pledge, hypothecate and assign the Trust
Property pursuant to the terms hereof and to keep and observe all of the terms
of this Deed of Trust on Trustor’s part to be performed.


 


39.        Non-Waiver. The failure of Beneficiary or Trustee to
insist upon strict performance of any term hereof shall not be deemed to be a
waiver of any term of this Deed of Trust. 
Any consent or approval by Beneficiary in any single instance shall not
be deemed or construed to be Beneficiary’s consent or approval in any like
matter arising at a subsequent date. 
Trustor shall not be relieved of Trustor’s obligations hereunder by
reason of (a) the failure of Beneficiary or Trustee to comply with any request
of Trustor or Guarantor to take any action to foreclose this Deed of Trust or
otherwise enforce any of the provisions hereof or of the Note, or the other
Loan Documents, (b) the release, regardless of consideration, of the whole
or any part of the Trust Property, or of any person liable for the Debt or any portion
thereof, or (c) any agreement or stipulation by Beneficiary extending the
tune of payment or otherwise modifying or supplementing the terms of the Note,
this Deed of Trust or any of the other Loan Documents. Beneficiary may resort
for the payment of the Debt to any other security held by Beneficiary in such
order and manner as Beneficiary, in its sole discretion, may elect.  Beneficiary or Trustee may take action to
recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Beneficiary or Trustee thereafter to
foreclose this Deed of Trust. The rights and remedies of Beneficiary and Trustee
under this Deed of Trust shall be separate, distinct and cumulative and none
shall be given effect to the exclusion of the others. No act of Beneficiary or
Trustee shall be construed as an election to proceed under any one provision
herein to the exclusion of any other provision. 
Beneficiary and Trustee shall not be limited exclusively to the rights
and remedies herein stated but shall be entitled to every right and remedy now
or hereafter afforded at law or in equity.


 


40.        No Oral Change.  This Deed of Trust, and any provisions
hereof, may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Trustor or
Beneficiary, but only by an agreement in writing signed by the party against
whom enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought.


 


41.        Liability. If Trustor consists of more than one person,
the obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Beneficiary’s consent to
any transfer of the Trust Property, this Deed of Trust shall be binding upon
and inure to the benefit of Trustor and Beneficiary and their respective
successors and assigns forever.


 


42.        Inapplicable Provisions.  If any term, covenant or condition of the Note or this Deed of Trust is
held to be invalid, illegal or unenforceable in any respect, the Note and this
Deed of Trust shall be construed without such provision.


 


43.        Headings, Etc The headings and captions of various
paragraphs of this Deed of Trust 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.


 


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44.        Duplicate Originals.  This Deed of Trust may be executed in any number of duplicate originals
and each such duplicate original shall be deemed to be an original.


 


45.        Definitions.  Unless the context clearly indicates a contrary intent or unless
otherwise specifically provided herein, words used in this Deed of Trust may be
used interchangeably in singular or plural form. When used in this Deed of
Trust, the following capitalized terms have the following meanings (all
accounting terms used but not specifically defined hereinbelow shall be
construed in accordance with generally accepted accounting principles
consistently applied, as the same may be modified by the terms and provisions
of this Deed of Trust):


 


“Affiliate” means, as to any person, any other person that, directly or indirectly,
is in control of, is controlled by or is under common control with such person.


 


“Access Laws”
shall refer to all federal, state and local laws, orders, ordinances,
governmental rules and regulations, and court orders affecting or which
may be interpreted to affect the Trust Property, or the use thereof, including,
without limitation, the Americans with Disabilities Act, the Americans with
Disabilities Act Accessibility Guidelines for Buildings and Facilities, and the
Fair Housing Amendments Act of 1988.


 


“attorneys’ fees” shall include any and all attorney, paralegal
and law clerk fees and disbursements, including, without limitation, fees and
disbursements at the pre-trial, trial and appellate levels incurred or paid by
Beneficiary in protecting its interest in the Trust Property and Collateral and
enforcing its rights hereunder, whether with respect to retained firms, the
reimbursement for the expenses of in-house staff or otherwise.


 


“Bankruptcy Code” means Title 11 of the United States Code, as
now or hereafter amended.


 


“Business Day” means any day other than (i) a Saturday
and a Sunday and (ii) a day on which federally insured depository
institutions in the State of New York or the state in which the offices of
Mortgagee, its trustee, its Servicer or its Servicer’s collection account are
located are authorized or obligated by law, governmental decree or executive
order to be closed.


 


“Cash Management Bank” shall have the meaning set forth in Paragraph
53 of this Deed of Trust.


 


“Certificates” means, collectively, any senior and/or
subordinate notes, debentures or pass-through certificates, or other evidence
of indebtedness, or debt or equity securities, or any combination of the
foregoing, representing a direct or beneficial interest, in whole or in part,
in the Loan.


 


“Default Rate” means, with respect to any Note or Note
Component, the greater of (x) 5% per annum in excess of the interest rate
otherwise applicable to such Note or Note Component hereunder and (y) 1 % per
annum in excess of the Prime Rate from time to time.


 


“Eligible Account” means (i) a segregated account
maintained with a federal or state-chartered depository institution or trust
company which complies with the definition of Eligible Institution, or (ii) a
segregated trust account or accounts maintained with the corporate trust
department of a federal depository institution or state-chartered depository
institution which has an investment-grade rating and is


 


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subject to regulations regarding fiduciary funds on deposit under, or
similar to, Title 12 of the Code of Federal Regulations Section 9.10(b) which,
in either case, has corporate trust powers, acting in its fiduciary capacity.


 


“Eligible Institution” means an institution (i) whose
commercial paper, short-term debt obligations or other short-term deposits are
rated at least A-l, Prime-1 or F-l, as applicable, by each of the Rating
Agencies and whose long-term senior unsecured debt obligations are rated at
least AA- or Aa3, as applicable, by each of the Rating Agencies, and whose
deposits are insured by the FDIC or (ii) with respect to which Beneficiary
shall have received Rating Confirmation.


 


“Event of Default” shall have the meaning set forth in Paragraph
22 of this Deed of Trust. 


 


“Fitch” means Fitch, Inc. and its successors.


 


“Guarantor” shall mean Richard L. Kramer, Mark Keller, Steven A. Grigg, and
Republic Properties Corporation, a District of Columbia corporation.


 


“Guaranty” means that certain guaranty executed by Guarantor of even date
herewith, as the same may from time to time be modified or replaced in
accordance with this Deed of Trust.


 


“Initial Interest Rate” means the interest rate per annum set forth
in the Initial Note and defined therein as the “Interest Rate”.


 


“Initial Note” means that
certain Deed of Trust Note in the Loan Amount evidencing the Loan executed by
Trustor on the date hereof.


 


“Initial Payment Date” means August 6, 2005.


 


“Interest Accrual Period” means, in connection with the calculation of
interest accrued with respect to any Payment Date, the period from and
including the sixth day of the preceding calendar month to but excluding the
sixth day of the month in which such Payment Date falls; provided, however,
that the first Interest Accrual Period shall be the period from and including
the date hereof to but excluding the 6th day of the calendar month
following the month in which funding occurs.


 


“Interest Rate” means (i) with respect to the Initial
Note, the Initial Interest Rate, and (ii) with respect to each Note
resulting from the componentization of the Initial Note into multiple Notes
pursuant to this Deed of Trust, the per annum interest rate of such Note as
determined by Lender in accordance herewith and set forth in the Note
Component.


 


“Internal Revenue Code” means the Internal Revenue Code of 1986, as
amended from time to time, or any successor statute.


 


“Leases”
shall have the meaning set forth in Granting Clause (d) of this Deed of Trust.


 


“Loan Documents” means collectively the Note, this Deed of
Trust, and any and all other documents securing, evidencing, or guaranteeing
all or any portion of the Loan or otherwise executed


 


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and/or delivered in connection with the Loan, as the same may be
extended, renewed, substituted, replaced, amended, modified and/or restated.


 


“Maturity Date” shall have the meaning set forth in Paragraph
57 of this Deed of Trust. 


 


“Moody’s” means Moody’s Investors Service, Inc. and its successors.


 


“Fiscal Quarter” means the three-month period ending on March 31,
June 30, September 30 and December 31 of each year, or such
other fiscal quarter of Trustor as Trustor may select from time to time with
the prior consent of Beneficiary, such consent not to be unreasonably withheld.


 


“Net Operating Income” means, with respect to any Test Period, the
excess of (i) Operating Income for the last Fiscal Quarter contained in
such Test Period, times four, minus (ii) Operating Expenses for
such Test Period.


 


“Note Component” shall have the meaning set forth in Paragraph
55 of this Deed of Trust


 


“Operating Expenses” means, for any period, all operating,
renting, administrative, management, legal and other ordinary expenses of Trustor
during such period, determined in accordance with generally accepted accounting
principles consistently applied; provided, however, that such
expenses shall not include (i) depreciation, amortization or other noncash
items (other than expenses that are due and payable but not yet paid), (ii) interest,
principal or any other sums due and owing with respect to the Loan, (iii) income
taxes or other taxes in the nature of income taxes, (iv) Capital
Expenditures, or (v) equity distributions.


 


“Operating Income” means, for any period, all operating income
of Trustor from the Trust Property during such period, determined in accordance
with generally accepted accounting principles consistently applied (but without
straight-lining of rents), other than (i) the proceeds of insurance or an
Award (but Operating Income will include rental loss insurance proceeds to the
extent allocable to such period), (ii) any revenue attributable to a Lease
to the extent it is paid more than 30 days prior to the due date, provided that
such payments shall be included upon their due dates, (iii) any interest
income from any source, (iv) any repayments received from any third party
of principal loaned or advanced to such third party by Trustor, (v) any
proceeds resulting from the Transfer of all or any portion of the Trust
Property, (vi) sales, use and occupancy or other taxes on receipts
required to be accounted for by Trustor to any government or governmental
agency, (vii) Cancellation Payments, and (viii) any other
extraordinary or non-recurring items.


 


“Payment Date” means the Initial Payment Date and,
thereafter, the sixth day of each month (or, if such sixth day is not a
Business Day, the first succeeding Business Day).


 


“Permitted Encumbrances” means (i) the liens created by the Loan
Documents, (ii) all liens and other matters specifically disclosed on Schedule B
of the title policy delivered to Beneficiary in connection with the origination
of the Loan; (iii) the liens, if any, for Taxes not yet delinquent; (iv) rights
of existing and future Tenants as tenants only pursuant to written Leases, and
in the case of future Leases, entered into in conformity with the provisions of
this Deed of Trust or as otherwise approved by Beneficiary, and (v) such
other matters approved by Beneficiary from time to time.


 


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“Person” means any individual, corporation, limited liability company,
partnership, joint venture, estate, trust, unincorporated association or
Governmental Authority and any fiduciary acting in such capacity on behalf of
any of the foregoing.


 


“Prime Rate” means the “prime rate” published in the “Money Rates” section of The
Wall Street Journal. If The Wall Street Journal ceases to publish
the “prime rate,” then Beneficiary shall select an equivalent publication that
publishes such “prime rate,” and if such “prime rate” is no longer generally
published or is limited, regulated or administered by a governmental or
quasi-governmental body, then Beneficiary shall reasonably select a comparable
interest rate index.


 


“Rating Agency” means (i) until a Securitization or
series of Securitizations has occurred, which, in the aggregate shall have
securitized the entire Loan, S&P, Moody’s and Fitch, and (ii) from and
after the occurrence of a Securitization or series of Securitizations which, in
the aggregate, shall have securitized the entire Loan, those of S&P, Moody’s
and Fitch that rate the Certificates issued in such Securitization or series of
Securitizations.


 


“Rating Confirmation” means, with respect to any proposed action,
confirmation in writing from each of the Rating Agencies that such action shall
not result, in and of itself, in a downgrade, withdrawal or qualification of
any rating then assigned to any outstanding Certificates; except that if any
portion of the Loan shall not have been securitized pursuant to a
Securitization rated by the Rating Agencies, then “Rating Confirmation” shall
instead mean that the matter in question is subject to the prior written
approval of both (x) the applicable Rating Agencies (if and to the extent that
any portion of the Loan has been securitized pursuant to a Securitization or
series of Securitizations rated by such Rating Agencies), and (y) Beneficiary
in its sole discretion. No Rating Confirmation shall be regarded as having been
received unless and until any conditions imposed on its effectiveness by any
Rating Agency shall have been satisfied.


 


“Rents” shall have the meaning set forth in Granting Clause (d) of this
Deed of Trust.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of the
McGraw-Hill Companies, Inc., and its successors.


 


“Securitization” means a transaction in which all or any
portion of the Loan is deposited into one or more trusts which issue
Certificates to investors, or a similar transaction.


 


“Servicer” means the entity or entities appointed by Beneficiary from time to time
to serve as servicer and/or special servicer of the Loan. If at any time no
entity is so appointed, the term “Servicer” shall be deemed to refer to
Beneficiary.


 


“Test Period” means each 12-month period ending on the last
day of a Fiscal Quarter.


 


“Treasury Constant Yield” means the arithmetic mean of the rates
published as “Treasury Constant Maturities” as of 5:00 p.m., New York
time, for the five Business Days preceding the date on which acceleration has
been declared, as shown on the USD screen of the Moneyline Telerate Service (or
such other page as may replace that page on that service, or such
other page or replacement therefor on any successor service), or if such
service is not available, the Bloomberg Service (or any successor service), or
if neither the Moneyline Telerate Service nor the Bloomberg Service is
available, under


 


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Section 504
in the weekly statistical release designated H.15(519) (or any successor
publication) published by the Board of Governors of the Federal Reserve System,
for “On the Run” U.S. Treasury obligations corresponding to the scheduled
Maturity Date. If no such maturity shall so exactly correspond, yields for the
two most closely corresponding published maturities shall be calculated
pursuant to the foregoing sentence and the Treasury Constant Yield shall be
interpolated or extrapolated (as applicable) from such yields on a
straight-line basis (rounding, in the case of relevant periods, to the nearest
month).


 


“Trustee”
shall mean Trustee and any substitute Trustee of the estates, properties,
powers, trusts and rights conferred upon Trustee pursuant to this Deed of Trust.


 


“U.S. Person” means a United States person within the
meaning of Section 7701(a)(30) of the Code.


 


“U.S. Tax”
means any present or future tax, assessment or other charge or levy imposed by
or on behalf of the United States of America or any taxing authority thereof.


 


“Yield Maintenance Premium” shall mean, with respect to any voluntary
prepayment of the Loan permitted hereunder, any payment of principal during the
continuance of an Event of Default or any payment of principal in accordance
with and pursuant to Paragraph 4 of this Deed of Trust, the product of:


 


(A)                              a fraction whose numerator is the amount so paid and whose denominator
is the outstanding principal balance of the Loan before giving effect to such
payment, times


 


(B)                                the excess of (1) the sum of the respective present values,
computed as of the date of such prepayment, of the remaining scheduled payments
of principal and interest at the Interest Rate with respect to the Loan,
determined by discounting such payments to the date on which such payments are
made at the Treasury Constant Yield, over (2) the outstanding principal balance
of the Loan on such date immediately prior to such payment;


 


provided that
the Yield Maintenance Premium with respect to any payment of principal during
any period when prepayment is not permitted hereunder or the existence of an
Event of Default shall not be less than one percent (1%) of the amount prepaid.
The calculation of the Yield Maintenance Premium shall be made by Beneficiary
and shall, absent manifest error, be final, conclusive and binding upon all
parties.


 


46.        Homestead.  Trustor 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 Trust Property as against the collection of the Debt, or any part
hereof.


 


47.        Assignments. Beneficiary shall have the right to assign or
transfer its rights under this Deed of Trust without limitation.  Any assignee or transferee shall be entitled
to all the benefits afforded Beneficiary under this Deed of Trust.


 


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48.        Waiver of Jury Trial.  TRUSTOR, AND BY ACCEPTING THIS DEED OF TRUST,
BENEFICIARY, EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE
NOTE, THIS DEED OF TRUST, OR THE OTHER LOAN DOCUMENTS,  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 TRUSTOR
AND BENEFICIARY, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH
THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.  BENEFICIARY AND TRUSTOR EACH IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY TRUSTOR OR BENEFICIARY,
AS THE CASE MAY BE.


 


49.        Power of Sale; Trustees
Fees; Substitute Fees.


 


(a)                                  Upon the occurrence and during the
continuance of an Event of Default, Trustee, or the agent or successor of
Trustee, at the request of Beneficiary, shall sell or offer for sale the Trust
Property in such portions, order and parcels as Beneficiary may determine with
or without having first taken possession of same, to the highest bidder for
cash at one or more public auctions in accordance with the terms and provisions
of the law of the State in which the Trust Property is located. Such sale shall
be made in the District of Columbia (without the necessity of having any
personal property hereby secured present at such sale) on such day and at such
times as permitted under applicable law of the State where the Trust Property
is located, after advertising the time, place and terms of sale and that
portion of the Trust Property in accordance with such law, and after having
served written or printed notice of the proposed sale by certified mail on each
Trustor obligated to pay the Note and other secured indebtedness secured by this
Deed of Trust according to the records of Beneficiary in accordance with
applicable law. The affidavit of any person having knowledge of the facts to
the effect that such service was completed shall be prima facie evidence of the
fact of service.


 


At any such public sale, Trustee may execute
and deliver in the name of Trustor to the purchaser a conveyance of the Trust
Property or any part of the Trust Property in fee simple. In the event of any
sale under this Deed of Trust by virtue of the exercise of the powers herein
granted, or pursuant to any order in any judicial proceeding or otherwise, the
Trust Property may be sold in its entirety or in separate parcels and in such
manner or order as Beneficiary in its sole discretion may elect, and if Beneficiary
so elects, Trustee may sell the personal property covered by this Deed of Trust
at one or more separate sales in any manner permitted by the Uniform Commercial
Code of the State in which the Trust Property is located, and one or more
exercises of the powers herein granted shall not extinguish or exhaust such
powers, until all the Trust Property is sold or the Note and other secured
indebtedness is paid in full. If the Note and other secured indebtedness is now
or hereafter further secured by any chattel Deed of Trusts, pledges, contracts
or guaranty, assignments of lease, or other security instruments, Beneficiary
at its option may exhaust the remedies granted under any of said security
instruments either concurrently or independently, and in such order as
Beneficiary may determine.


 


69





















 


(b)                                 Upon any foreclosure sale or sales of all or
any portion of the Trust Property under the power herein granted, Beneficiary
may bid for and purchase the Trust Property and shall be entitled to apply all
or any part of the Debt as a credit to the purchase price.


 


(c)                                  In the event of a foreclosure or a sale of
all or any portion of the Trust Property under the power herein granted, the
proceeds of said sale shall be applied, in whatever order Beneficiary in its
sole discretion may decide, to the expenses of such sale and of all proceedings
in connection therewith (including, without limitation, attorneys’ fees and
expenses), to fees and expenses of Trustee (including, without limitation,
Trustee’s attorneys’ fees and expenses), to insurance premiums, liens,
assessments, taxes and charges (including, without limitation, utility charges
advanced by Beneficiary), to payment of the outstanding principal balance of
the Debt, and to the accrued interest on all of the foregoing; and the
remainder, if any, shall be paid to Trustor, or to the person or entity
lawfully entitled thereto.


 


(d)                                 Trustor shall pay all costs, fees and
expenses incurred by Trustee and Trustee’s agents and counsel in connection
with the performance by Trustee of Trustee’s duties hereunder and all such
costs, fees and expenses shall be secured by this Deed of Trust.


 


(e)                                  Trustee shall be under no duty to take any
action hereunder except as expressly required hereunder or by law, or to
perform any act which would involve Trustee in any expense or liability or to
institute or defend any suit in respect hereof, unless properly indemnified to Trustee’s
reasonable satisfaction.  Trustee, by
acceptance of this Deed of Trust, covenants to perform and fulfill the trusts
herein created, being liable, however, only for willful negligence or misconduct,
and hereby waives any statutory fee and agrees to accept reasonable
compensation, in lieu thereof, for any services rendered by Trustee in
accordance with the terms hereof. Trustee may resign at any time upon giving
thirty (30) days’ notice to Trustor and to Beneficiary. Beneficiary may remove
Trustee at any time or from time to time and select a successor trustee. In the
event of the death, removal, resignation, refusal to act, or inability to act
of Trustee, or in its sole discretion for any reason whatsoever, Beneficiary
may, without notice and without specifying any reason therefor and without
applying to any court, select and appoint a successor trustee, by an instrument
recorded wherever this Deed of Trust is recorded and all powers, rights, duties
and authority of Trustee, as aforesaid, shall thereupon become vested in such
successor. Such substitute trustee shall not be required to give bond for the
faithful performance of the duties of Trustee hereunder unless required by
Beneficiary.  The procedure provided for
in this paragraph for substitution of Trustee shall be in addition to and not
in exclusion of any other provisions for substitution, by law or otherwise.


 


50.        Recourse Provisions. Subject to the qualifications below,
Beneficiary shall not enforce the liability and obligation of Trustor to
perform and observe the obligations contained in the Note, this Deed of Trust or
in any of the other Loan Documents by any action or proceeding wherein a money
judgment shall be sought against Trustor, except that Beneficiary may bring a
foreclosure action, an action for specific performance or any other appropriate
action or proceeding to enable Beneficiary to enforce and realize upon its
interests under the Note, this Deed of Trust and the other Loan Documents, or
in the Trust Property, the Rents (as defined in this Deed of Trust), or any
other collateral given to Beneficiary pursuant to the Loan Documents; provided,
however, that, except as specifically provided herein, any judgment in
any such action or proceeding shall be enforceable against Trustor only to the
extent of


 


70





















 


Trustor’s
interest in the Trust Property, in the Rents and in any other collateral given
to Beneficiary. By accepting the Note, this Deed of Trust and the other Loan
Documents, Beneficiary agrees that it shall not except as otherwise herein
provided, sue for, seek or demand any deficiency judgment or other monetary
judgment against Trustor in any such action or proceeding under or by reason of
or under or in connection with the Note, this Deed of Trust or the other Loan
Documents. The provisions of this paragraph shall not, however, (a) constitute
a waiver, release or impairment of any obligation evidenced or secured by any
of the Loan Documents; (b) impair the right of Beneficiary to name Trustor
as a party defendant in any action or suit for foreclosure and sale under this
Deed of Trust; (c) affect the validity or enforceability of any guaranty
or indemnity made in connection with the Loan or any of the rights and remedies
of the Beneficiary thereunder; (d) impair the right of Beneficiary to
obtain the appointment of a receiver; (e) impair the enforcement of the
Assignment of Leases; or (f) constitute a waiver of the right of
Beneficiary to enforce the liability and obligation of Trustor, by money
judgment or otherwise, to the extent of, but
only to the extent of, any loss, damage, cost, expense, liability,
claim or other obligation incurred by Beneficiary (including attorneys’ fees
and costs reasonably incurred) arising out of or in connection with the
following:


 


(i)                                     actual fraud or fraudulent or intentional
material misrepresentation by Trustor or any of its partners, officers,
principals, members, any guarantor or any other person authorized to make
statements or representations, or act, on behalf of Trustor in connection with
the Loan;


 


(ii)                                  intentional affirmative acts of physical
waste committed on the Trust Property as a result of the intentional misconduct
of Trustor or its Governing Entity, or intentionally permitted by Trustor or
its Governing Entity to be committed by any agent or employee of any such persons;


 


(iii)                               the breach of any representation, warranty,
covenant or indemnification provision in the Environmental Indemnity;


 


(iv)                              the misapplication or conversion by Trustor
of (A) any insurance proceeds paid by reason of any loss, damage or
destruction to the Trust Property, (B) any awards or other amounts
received in connection with the condemnation of all or a portion of the Trust
Property, or (C) any Rents following and during the continuance of an
Event of Default;


 


(v)                                 Trustor or its Governing Entity fails to
maintain its status as a single purpose entity as required by, and in
accordance with the terms and provisions of this Deed of Trust, excluding,
however, Paragraphs 9(f) and 9(j).


 


Notwithstanding anything to the contrary in any of
the Loan Documents (A) Beneficiary shall not be deemed to have waived any
right which Beneficiary may have under Section 506(a), 506(b), llll(b) or
any other provisions of the U.S. Bankruptcy Code to file a claim for the full
amount of the Debt secured by this Deed of Trust or to require that all
collateral shall continue to secure all of the Debt owing to Beneficiary in
accordance with the Loan Documents, and (B) the Debt shall be fully
recourse to Trustor in the event that: (i) the Trust Property or any part
thereof becomes an asset in a voluntary bankruptcy or insolvency proceeding
under the U.S. Bankruptcy Code, or an involuntary such proceeding in which
Trustor, its Governing Entity, or any Affiliate of either of them joins or
colludes; (ii) Trustor fails to


 


71





















 


obtain
Beneficiary’s prior written consent to any subordinate financing or other
voluntary lien encumbering the Trust Property or any interests in Trustor; or (iii) Trustor
fails to obtain Beneficiary’s prior written consent to any assignment,
transfer, or conveyance of the Trust Property or any interest therein as
required by this Deed of Trust.


 


51.        Miscellaneous.


 


(a)                                  Trustor covenants and agrees not to engage in
any transaction which would cause any obligation, or action taken or to be
taken, hereunder (or the exercise by Beneficiary of any of its rights under the
Loan Documents) to be a non-exempt (under a statutory or administrative class
exemption) prohibited transaction under the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”).  Trustor further covenants and agrees to
deliver to Beneficiary such certifications or other evidence from time to time
throughout the Term, as reasonably requested by Beneficiary, that (i) Trustor
is not an “employee benefit plan” as defined in Section 3(3) of
ERISA, which is subject to Title I of ERISA, or a “governmental plan” within
the meaning of Section 3(32) of ERISA; (ii) Trustor is not subject to
state statutes regulating investments and fiduciary obligations with respect to
governmental plans; and (iii) one or more of the following circumstances
is true: (A) Equity interests in Trustor are publicly offered securities, within
the meaning of 29 C.F.R. § 2510.3-101(b)(2); (B) Less than
twenty-five percent (25%) of each outstanding class of equity interests in
Trustor are held by “benefit plan investors” within the meaning of 29 C.F.R. § 2510.3-101
(f)(2); or (C) Trustor qualifies as an “operating company” or a “real
estate operating company” within the meaning of 29 C.F.R. § 2510.3-101 (c) or
(e) or an investment company registered under the Investment Company Act
of 1940. Trustor represents and warrants to Beneficiary that Trustor (1) has
no knowledge of any material liability that has been incurred or is expected to
be by Trustor that is or remains unsatisfied for any taxes or penalties with
respect to any “employee benefit plan,” or any “plan,” within the meaning of Section 4975(e)(l)
of the Internal Revenue Code or any other benefit plan (other than a multiemployer
plan) maintained, contributed to, or required to be contributed to by Trustor
or by any entity that is under common control with Trustor within the meaning
of ERISA Section 4001(a)(14) (a “Plan”) or any plan that would be a Plan
but for the fact that it is a multiemployer plan within the meaning of ERISA Section 3(37),
(2) has made and shall continue to make when due all required
contributions to all such Plans, if any, (3) each Plan, if any, has been
and will be administered in compliance with its terms and the applicable
provisions of ERISA, the Internal Revenue Code, and any other applicable
federal or state law, and (4) no action shall be taken or fail to be taken
that would result in the disqualification or loss of tax-exempt status of any
such Plan,  if any,  intended to be qualified and/or tax
exempt.  TRUSTOR FURTHER COVENANTS AND AGREES TO PROTECT, DEFEND, INDEMNIFY AND
HOLD THE INDEMNIFIED PARTIES HARMLESS FROM AND AGAINST ALL LOSSES THAT ANY
INDEMNIFIED PARTY MAY INCUR AS A RESULT OF TRUSTOR’S BREACH OF THE COVENANTS IN THIS
PARAGRAPH. The covenants and indemnity contained in this Paragraph
shall survive the extinguishment of the lien of this Deed of Trust by
foreclosure or action in lieu thereof; furthermore, the foregoing indemnity
shall supersede any limitations on Trustor’s liability under any of the Loan
Documents.


 


(b)                                 The Loan Documents contain the entire
agreement between Trustor and Beneficiary relating to or connected with the
Loan.  Any other agreements relating to
or connected with the Loan (including, without limitation, any term sheets,
commitments and


 


72





















 


confidentiality agreements) not expressly set forth in the Loan
Documents are null and void and superseded in their entirety by the provisions
of the Loan Documents.


 


(c)                                  Trustor represents and warrants to
Beneficiary that there has not been committed by Trustor or any other person in
occupancy of or involved with the operation or use of the Trust Property any
act or omission affording the federal government or any state or local
government the right of forfeiture as against the Trust Property or any part
thereof or any monies paid in performance of Trustor’s obligations under the
Note or under any of the other Loan Documents. Trustor hereby covenants and
agrees not to commit, permit or suffer to exist any act, omission or circumstance
affording such right of forfeiture. IN FURTHERANCE THEREOF, TRUSTOR HEREBY
INDEMNIFIES THE INDEMNIFIED PARTIES AND AGREES TO DEFEND AND HOLD THE INDEMNIFIED
PARTIES HARMLESS FROM AND AGAINST ANY AND ALL LOSSES INCURRED BY ANY
INDEMNIFIED PARTY BY REASON OF THE BREACH OF THE COVENANTS AND AGREEMENTS OR
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS PARAGRAPH. Without
limiting the generality of the foregoing, the filing of formal charges or the
commencement of proceedings against Trustor or all or any part of the Trust
Property under any federal or state law for which forfeiture of the Trust
Property or any part thereof or of any monies paid in performance of Trustor’s obligations
under the Loan Documents is a potential result, shall, at the election of
Beneficiary, constitute an Event of Default hereunder without notice or
opportunity to cure.


 


(d)                                 Trustor acknowledges that, with respect to
the Loan, Trustor is relying solely on its own judgment and advisors in
entering into the Loan without relying in any manner on any statements,
representations or recommendations of Beneficiary or any parent, subsidiary or affiliate
of Beneficiary.  Trustor acknowledges
that Beneficiary engages in the usiness of real estate financings and other
real estate transactions and investments which may be viewed as adverse to or
competitive with the business of the Trustor or its affiliates. Trustor
acknowledges that it is represented by competent counsel and has consulted
counsel before executing the Loan Documents.


 


(e)                                  Trustor covenants and agrees to pay
Beneficiary upon receipt of written notice from Beneficiary, all reasonable
costs and expenses (including, without limitation, reasonable attorneys’ fees
and disbursements and the costs and expenses of any title insurance company, appraisers,
engineers or surveyors) incurred by Beneficiary in connection with (i) the
preparation, negotiation, execution and delivery of this Deed of Trust and the
other Loan Documents; (ii) Trustor’s performance of and compliance with
Trustor’s respective agreements and covenants contained in this Deed of Trust
and the other Loan Documents on its part to be performed or complied with after
the date hereof; (iii) Beneficiary’s performance and compliance with all agreements
and conditions contained in this Deed of Trust and the other Loan Documents on
its part to be performed or complied with after the date hereof; (iv) the
negotiation, preparation, execution, delivery and administration of any
consents, amendments, waivers or other modifications to this Deed of Trust and
the other Loan Documents; and (v) the filing and recording fees and
expenses, title insurance fees and expenses, and other similar expenses incurred
in creating and perfecting the lien in favor of Beneficiary pursuant to this
Deed of Trust and the other Loan Document


 


73





















 


(f)                                    THIS DEED OF TRUST, AND ITS
VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE
PREMISES ARE LOCATED (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND
APPLICABLE UNITED STATES FEDERAL LAW.


 


52.        Reconveyance of Trust
Property. Upon the performance
of all obligations and the payment in full of all sums secured by this Deed of
Trust, Beneficiary shall request Trustee to reconvey the Trust Property. Upon
payment of its fees and any other sums owing to it under this Deed of Trust,
Trustee shall reconvey the Trust Property without warranty to the person or
persons legally entitled thereto. 
Trustor shall pay all costs of recordation, if any and fees of the
Trustee in papering such cancellation documents. The recitals in such
conveyance of any matters or facts shall be conclusive of the truthfulness
thereof. The grantee in such reconveyance may be described as “the person or
persons legally entitled thereto.”


 


53.        Cash Management Arrangement.


 


(a)                                  Contemporaneously herewith, Trustor,
Beneficiary and SunTrust Bank, a Georgia banking corporation (together with any
permitted replacement, the “Cash Management
Bank”) have entered into a Cash Management
Agreement (such agreement, together with any modification, amendment,
substitution or replacement thereof, hereinafter collectively referred to as
the “Cash Management Agreement”, any
and all accounts and subaccounts established pursuant to such agreement, the “Collateral Accounts”; such arrangement
sometimes hereinafter called the “Cash
Management Arrangement”), which provides, among other things,
that all Rents and other sums collected from, or arising with respect to, the
Trust Property shall be collected in a lockbox and deposited to a deposit
account (the “Deposit Account”) for
disbursement in accordance with the terms, provisions and conditions of the
Cash Management Agreement. Trustor covenants to cause all Rents relating to the
Property and all other money received by Trustor or the Property Manager with
respect to the Trust Property (other than tenant security deposits required to
be held in escrow accounts) to be delivered to the Cash Management Bank by the
end of the first Business Day following Trustor’s or the Property Manager’s
receipt thereof. Trustor covenants promptly to instruct each tenant to pay its
Rents to the lockbox established with the Cash Management Bank, and to deliver
a copy of such instruction to Beneficiary. Pursuant to disbursement
instructions submitted by Beneficiary to the Cash Management Bank in accordance
with the Cash Management Agreement, Beneficiary shall direct the Cash
Management Bank to remit to an account specified by Trustor, at the end of each
Business Day (or, at Trustor’s election, on a less frequent basis), the amount,
if any, by which amounts then contained in the Deposit Account exceed the Peg
Balance (hereinafter defined), provided, however, that Beneficiary shall
have the right to terminate any such remittances during the continuance of an
Event of Default upon notice to the Cash Management Bank. Beneficiary shall
have the right to replace the Cash Management Bank with any other financial
institution reasonably satisfactory to Trustor in which Eligible Accounts may
be maintained which will promptly execute and deliver to Beneficiary a Cash
Management Agreement (and Trustor shall cooperate with Beneficiary in
connection with such transfer) in the event that (i) at any time the Cash
Management Bank ceases to be an Eligible Institution (unless the Collateral
Accounts are maintained as segregated trust accounts in accordance with clause (ii) of
the definition of Eligible


 


74





















 


Accounts), or (ii) the Cash Management Bank fails to comply with
the Cash Management Agreement.


 


If on any Payment Date the amount in the
Deposit Account shall be less than the Peg Balance, Trustor shall deposit into
the Deposit Account on such Payment Date the amount of such deficiency. If
Trustor shall fail to make such deposit, the same shall constitute an immediate
Event of Default and, notwithstanding anything to the contrary in this Deed of
Trust, Beneficiary may disburse and apply the amounts in the Collateral
Accounts, at Beneficiary’s sole discretion, toward the components of the Debt (e.g.,
interest, principal and other amounts payable hereunder), the Loan and the Note
Components in such sequence as Beneficiary shall elect in its sole discretion,
or toward such other obligations of Trustor under the Loan Documents, and in
such sequence, as Beneficiary shall determine in its sole discretion. For
purposes hereof, the “Peg Balance” shall
mean an amount sufficient to pay on the applicable Payment Date: (i) deposits
to the Tax and Insurance Impound, (ii) payment to Beneficiary of the
amount of all scheduled or delinquent interest on the Loan, (iii) deposits
to the Replacement Escrow Fund, and (iv) all other amounts then due and
payable under the Loan Documents.


 


Trustor shall pay all costs
and expenses required under the Cash Management Agreement. Upon the occurrence
and during the continuance of an Event of Default, Beneficiary may apply any
sums then held in the Collateral Accounts to the payment of the Debt in any
order in its sole discretion. Until expended or applied, amounts held pursuant
to the Cash Management Arrangement shall constitute additional security for the
Debt. The documents created as part of the Cash Management Arrangement shall be
“Loan Documents” for all purposes under the Note, this Deed of Trust and the
other Loan Documents.


 


(b)                                 Simultaneous with the making of the Loan,
Trustor has submitted and Beneficiary has approved an Annual Budget (defined
below) for calendar year 2005. At least forty-five (45) days prior to the
commencement of each subsequent calendar year during the term of the Loan,
Trustor shall deliver to Beneficiary for informational purposes only an Annual
Budget for the Trust Property for the ensuing calendar year and, promptly after
preparation thereof, any subsequent revisions to such Annual Budget. During the
continuance of any Event of Default, such Annual Budget and any such revisions
shall be subject to Beneficiary’s approval (the Annual Budget, as so approved,
the “Approved Annual Budget”); provided,
however, that Trustor shall not amend any Annual Budget more than once in
any 60-day period. Until such time as Beneficiary approves a proposed Annual
Budget (when required hereunder), the most recently Approved Annual Budget
shall remain in effect but shall be adjusted to reflect actual increases in
real estate taxes, insurance premiums and utility expenses. For purposes
hereof, “Annual Budget” means a
capital and operating expenditure budget for the Trust Property prepared by
Trustor and specifying amounts sufficient to operate and maintain the Trust
Property at a standard at least equal to that maintained on the date hereof.


 


54.       Indemnification Paragraphs. TRUSTOR HEREBY ACKNOWLEDGES AND AGREES THAT
THIS DEED OF TRUST CONTAINS CERTAIN INDEMNIFICATION PROVISIONS PURSUANT TO PARAGRAPHS
7.19. 20. 36 and 51


 


75





















 


55.       Componentization.  Upon written notice from Beneficiary to Trustor (the “Componentization Notice”),
the Note will be deemed to have been subdivided (retroactively as of the date
hereof) into multiple components (“Note  Components”).  Each
Note Component shall be in the form of the Initial Note but for its principal
amount and interest rate. The principal amount and interest rate of each Note
Component shall be determined by Lender in its sole discretion and specified in
the Componentization Notice, provided, however, that the sum of
the principal amounts of the Note Components shall initially equal the then
outstanding principal balance of the Loan, provided, further, that
the weighted average of such Interest Rates, weighted on the basis of the
respective principal balances of the Note Components, shall initially equal the
Initial Interest Rate.  If requested by Beneficiary,
each Note Component shall be represented by a separate physical Note.  Trustor shall execute and return to
Beneficiary each such Note within two Business Days after Trustor’s receipt of
an execution copy thereof.


 


56.       Interest Rate Applicable to
Entire Loan.  Trustor shall pay interest on the outstanding
principal balance of the entire Loan at a rate per annum equal to the Interest
Rate and otherwise in the manner, at the times and as more particularly
determined and described in the Note.


 


57.       Maturity Date.  The maturity date of the Loan (the “Maturity
Date”) shall initially be the
Payment Date in July, 2012, or such earlier date as may result from
acceleration of the Debt.  The entire
outstanding principal balance of the Loan, together with all accrued and unpaid
interest thereon and all other amounts then due under the Loan Documents shall
be due and payable by Trustor to Beneficiary on the Maturity Date.


 


58.       Eligible Accounts.  Notwithstanding anything to the contrary contained in this Deed of Trust,
or any of the other Loan Documents, escrow funds received by Beneficiary
pursuant to this Deed of Trust or any of the other Loan Documents shall be held
by Beneficiary in Eligible Accounts with Eligible Banks (as each such term is
defined in the Cash Management Agreement). Notwithstanding anything to the
contrary contained in this Deed of Trust or any of the other Loan Documents,
any such amounts required to be interest bearing in accordance with the terms
hereof or thereof shall only be invested in Permitted Investments (as such term
is defined in the Cash Management Agreement). Interest accruing on any such
escrow amounts shall be treated as income of Trustor for federal, state and
local income tax purposes.


 


59.       Special State Provisions.  In the event of any inconsistencies between the terms and conditions of
any other Paragraph of this Deed of Trust with applicable law or with this
Paragraph of this Deed of Trust, the terms and conditions of this Paragraph
shall control and be binding.


 


(a)                              Paragraph 50(a) shall be deemed modified to require the
notice of sale to comply with applicable law, including without limitation the
provisions of Section 42-815(b) of the District of Columbia Code.


 


(b)                             The commission to be paid upon sale under the power of sale, or upon a
sale advertised but prevented, suspended or postponed, to the person making
such sale, which commission Trustor agrees to pay, shall be in accordance with
the provisions of Section 42-818 of the District of Columbia Code but
shall not exceed Ten Thousand Dollars ($10,000).


 


76





















 


EXECUTED on the date set
forth in the acknowledgment below, to be effective on and as of the date first
above written.


 


	
   

  	
  TRUSTOR:

  
	
   

  	
   

  
	
   

  	
  RPT 1425 NEW YORK AVENUE
  LLC

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Keller

  	
   

  
	
   

  	
   

  	
   

  	
  Mark
  Keller 

  
	
   

  	
   

  	
   

  	
  President

  
					



 


 


	
  CITY
  OF WASHINGTON

  	
   

  	
  )

  	
   

  	
  ss.

  
	
  DISTRICT
  OF. COLUMBIA

  	
  )

  	
  )

  	
  ssj

  	
   

  
	
   

  	
  )

  	
  )

  	
   

  	
   

  



 


This instrument was acknowledged before me on June 13, 2005 by
Mark Keller, the President of RPT 1425 New York Avenue LLC, a Delaware limited
liability company.


 


	
  /s/
  Melissa T. Jones

  	
   

  
	
  (Signature
  of notarial officer)

  
	
  Printed
  Name:

  
	
  (Seal)

  
	
  (My
  commission expires:

  	
  01/31/2010

  	
   

  
	
  Melissa
  T. Jones, Notary Public

  
	
  Washington,
  D. C.

  
				



 


Signature/Acknowledgment page to Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing


 





















 


Exhibit A


Legal Description


 


All that certain lot or parcel of land situate and lying in the
District of Columbia, and more particularly described as follows:


 


All of Lot numbered 27 in Square numbered 222, District of Columbia, in
the subdivision made by Greyhound Associates, as per plat thereof recorded in
the Office of the Surveyor for the District of Columbia in Subdivision Book 177
at Page 40 and being more particularly described as follows:


 


Beginning for the same at a point at the northerly corner common to
Lots 24 and 27 in Square 222, said point located due West, 93.08 feet (record)
from the intersection of the west line of 14th Street, N.W. (110’ wide)
and the south line of H Street, N.W. (90’ wide) and running thence with the
common lines between Lot 24 and Lot 27


 


1.                                    South, 131.17 feet (record), South 131.83
feet (measured) to a point; thence


 


2.                                    East, 1.55 feet (record), South 89° 48’ 00”
East, 1.24 feet (measured) to a point; thence


 


3.                                    South 24° 02’ 08” East, 105.69 feet (record),
South 23° 49’ 00” East, 105.65 feet (measured) to a point on the north line of
New York Avenue, N.W. (130’ wide) and running thence with and along a portion
of said north line of New York Avenue, N.W.


 


4.                                    South 65° 57’ 52” West, 122.24 feet (record),
South 66° 11’ 00” West, 122.08 feet (measured) to a point; thence departing the
north line of New York Avenue, N.W. and running with and along the common lines
between Lot 25 and Lot 27 as recorded in Subdivision Book 177 at Page 40
as mentioned above


 


5.                                    North 24° 02’ 08” West, 6.00 feet (record),
North 23° 49’ 00” West, 6.00 feet (measured) to a point; thence


 


6.                                    North 65° 67’ 52” East, 10.00 feet (record),
North 66° 11’ 00” East, 10.00 feet (measured) to a point; thence


 


7.                                  North 24° 02’ 08” West, 132.75 feet (record),
North 23° 49’ 00” West, 132.58 feet (measured) to a point; thence


 


8.                                  North 65° 57’ 52” East, 24.53 feet (record),
North 66° 11’ 01” East, 24.65 feet (measured) to a point; thence


 


9.                                  North, 136.71 feet (record), North, 137.01
feet (measured) to intersect the previously mentioned south line of H Street,
N.W. and running with and along a portion of said line


 


10.                         East, 92.01 feet (record), East, 92.04 feet (measured) to the point of
beginning, containing 26,512 square feet, more or less (record), 26,528 square
feet, more or less (measured), of land.