EX-10.1






	 
	This Document Prepared By
and After Recording Return to:

	Beth S. Rubin
Riemer & Braunstein LLP
71 South Wacker Drive, Suite 3515
Chicago, Illinois 60606
Address of Property:

	403 Ogletree Drive
Livingston, Texas







NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY
OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY
BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S
LICENSE NUMBER.



LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,

SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT

by

G&E HC REIT II LIVINGSTON MOB, LLC

a Delaware limited liability company,

as Grantor,

to Peter S. Graf, as Trustee for the benefit of

BANK OF AMERICA, N.A.,

a national banking association,

as Administrative Agent




This Document Serves as a Fixture Filing under Section 9.502 of the Texas Business and Commercial
Code



Grantor’s Organizational Identification Number is 4815060

LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,

 SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT




This Leasehold Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture
Filing (this “Deed of Trust”), is made as of the 15th day of September, 2010 by
G&E HC REIT II LIVINGSTON MOB, LLC, a Delaware limited liability company (“Grantor”), whose
address is c/o Grubb & Ellis Equity Advisors, LLC, 1551 North Tustin Avenue, Suite 300, Santa Ana,
California 92705, Attention: Danny Prosky, to Peter S. Graf, with an address at Republic Title of
Texas, Inc., 2626 Howell Street, 10th Floor, Dallas, Texas 75204 (“Trustee”) for the
benefit of BANK OF AMERICA, N.A., a national banking association with an address at 135 South
LaSalle Street, 12th Floor, Chicago, Illinois 60606, Attention: Michelle Herrick, as
administrative agent (“Administrative Agent”) under a Credit Agreement of even date among
Borrower (as defined below), Bank of America, N.A., and the other lending institutions which become
parties to the Credit Agreement (Bank of America, N.A. and the other lending institutions which
become parties to the Credit Agreement are collectively referred to as “Lenders” and
individually as “Lender”).



Recitals




Grantor has requested that Administrative Agent and Lenders make the Loan (as hereinafter
defined) to Grantor and Grubb & Ellis Healthcare REIT II Holdings LP, a Delaware limited
partnership (together with each other party which becomes a borrower under the Credit Agreement,
each of whom with Grantor are referred to herein individually and collectively as
"Borrower”). As a condition precedent to making the Loan, Administrative Agent has
required that Grantor execute and deliver this Deed of Trust, Assignment of Leases and Rents,
Security Agreement, Fixture Filing and Financing Statement to Trustee for the benefit of
Administrative Agent.



Grants and Agreements




Now, therefore, in order to induce Administrative Agent and Lenders to make the Loan to
Borrower, Grantor agrees as follows:



Article I

Definitions.




As used in this Deed of Trust, the terms defined in the Preamble hereto shall have the
respective meanings specified therein, and the following additional terms shall have the meanings
specified:



"365(h) Election” shall mean the right of Grantor to treat the Ground Lease as
terminated pursuant to Section 365(h)(1)(A)(i) of the Bankruptcy Code or retain Grantor’s rights
under the Ground Lease pursuant to Section 365(h)(1)(A)(ii) of the Bankruptcy Code and all such
other rights, powers, and privileges granted to a lessee pursuant to Section 365(h) of the
Bankruptcy Code, together with all such other similar rights, powers and privileges granted to a
lessee under any other Debtor Relief Law.



"Accessories” means all fixtures, equipment, systems, machinery, furniture,
furnishings, appliances, inventory, goods, building and construction materials, supplies and other
articles of personal property, of every kind and character, tangible and intangible (including
software embedded therein), now owned or hereafter acquired by Grantor, which are now or hereafter
attached to or situated in, on or about the Land or Improvements, or used in or necessary to the
complete and proper planning, development, use, occupancy or operation thereof, or acquired
(whether delivered to the Land or stored elsewhere) for use or installation in or on the Land or
Improvements, and all Additions to the foregoing, all of which are hereby declared to be permanent
accessions to the Land.



"Accounts” means all accounts of Grantor within the meaning of the Uniform Commercial
Code of the State, derived from or arising out of the use, occupancy or enjoyment of the Property
or for services rendered therein or thereon.



"Additions” means any and all alterations, additions, accessions and improvements to
property, substitutions therefor, and renewals and replacements thereof.



"Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy”,
as now and hereafter in effect, or any successor statute.



"Beneficiary” means Administrative Agent, on behalf of itself and certain other
Lenders, and its successors and assigns.



"Claim” means any liability, suit, action, claim, demand, loss, expense, penalty,
fine, judgment or other cost of any kind or nature whatsoever, including fees, costs and expenses
of attorneys, consultants, contractors and experts.



"Condemnation” means any taking of title to, use of, or any other interest in the
Property under the exercise of the power of condemnation or eminent domain, whether temporarily or
permanently, by any Governmental Authority or by any other Person acting under or for the benefit
of a Governmental Authority.



"Condemnation Awards” means any and all judgments, awards of damages (including
severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in
lieu of Condemnation, or other compensation heretofore or hereafter made, including interest
thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation
or threatened Condemnation.



"Contract of Sale” means any contract for the sale of all or any part of the Property
or any interest therein, whether now in existence or hereafter executed.



"Credit Agreement” means the Credit Agreement of even date herewith among Borrower,
Administrative Agent and Lenders which sets forth, among other things, the terms and conditions
upon which the proceeds of the Loan will be disbursed, as the same may from time to time be
extended, amended, restated, supplemented or otherwise modified.



"Debtor Relief Laws” means the Bankruptcy Code or any other federal, state or local
law, domestic or foreign, as now or hereafter in effect relating to bankruptcy, insolvency,
liquidation, receivership, reorganization, arrangement, composition, extension or adjustment of
debts, or similar laws affecting the rights of creditors.



"Deed of Trust” means this Leasehold Deed of Trust, Assignment of Leases and Rents,
Security Agreement, Fixture Filing and Financing Statement, as the same may from time to time be
extended, amended, restated, supplemented or otherwise modified.



"Default” means an event or circumstance which, with the giving of Notice or lapse of
time, or both, would constitute an Event of Default under the provisions of this Deed of Trust.



"Design and Construction Documents” means, collectively, (a) all contracts for
services to be rendered, work to be performed or materials to be supplied in the development of the
Land or the construction or repair of Improvements, including all agreements with architects,
engineers or contractors for such services, work or materials; (b) all plans, drawings and
specifications for the development of the Land or the construction or repair of Improvements; (c)
all permits, licenses, variances and other rights or approvals issued by or obtained from any
Governmental Authority or other Person in connection with the development of the Land or the
construction or repair of Improvements; and (d) all amendments of or supplements to any of the
foregoing.



"Encumbrance” means any Lien, easement, right of way, roadway (public or private),
condition, covenant or restriction, Lease or other matter of any nature that would affect title to
the Property.



"Environmental Agreement” means the Environmental Indemnity Agreement of even date
herewith by and among Borrower, Guarantor and Administrative Agent pertaining to the Property, as
the same may from time to time be extended, amended, restated or otherwise modified.



"Event of Default” means an event or circumstance specified in Article VI and
the continuance of such event or circumstance beyond the applicable grace and/or cure periods
therefor, if any, set forth in Article VI.



"Expenses” means all fees, charges, costs and expenses of any nature whatsoever
incurred at any time and from time to time (whether before or after an Event of Default) by
Beneficiary in making, funding, administering or modifying the Loan, in negotiating or entering
into any “workout” of the Loan, or in exercising or enforcing any rights, powers and remedies
provided in this Deed of Trust or any of the other Loan Documents, including reasonable attorneys’
fees, court costs, receiver’s fees, management fees and costs incurred in the repair, maintenance
and operation of, or taking possession of, or selling, the Property.



"Governmental Authority” means any governmental or quasi-governmental entity,
including any court, department, commission, board, bureau, agency, administration, service,
district or other instrumentality of any governmental entity.



"Grantor” means G&E HC REIT II Livingston MOB, LLC, a Delaware limited liability
company.



"Ground Lease” means that certain Ground Lease Agreement dated as of December 12, 2006
between Ground Lessor and McShane MAP, L.L.C. (“Original Tenant”), as amended by that
certain First Amendment to Ground Lease dated June 28, 2010, a memorandum of which was recorded in
the Official Records of Polk County, Texas on February 9, 2007 as Instrument Number 2007-1561-546,
which Ground Lease was assigned by Original Tenant to Grantor pursuant to that certain Assignment
and Assumption of Ground Lease dated June 28, 2010, and recorded on June 30, 2010 in Volume 1753,
Page 133, Official Records, Polk County, Texas.



"Ground Lessor” means Memorial Health System of East Texas, a Texas non-profit
corporation, its succors and/or assigns.



"Guarantor” means Grubb & Ellis Healthcare REIT II, Inc., a Maryland corporation, and
its personal representatives, successors and assigns.



"Guaranty” means the Guaranty Agreement of even date herewith executed by Guarantor to
Administrative Agent for the benefit of Lenders, as the same may from time to time be extended,
amended, restated, supplemented or otherwise modified.



"Improvements” means all buildings, structures and other improvements now or hereafter
existing, erected or placed on the Land, together with any on-site improvements and off-site
improvements in any way used or to be used in connection with the use, enjoyment, occupancy or
operation of the Land.



"Insolvency Proceeding” means (a) any voluntary or involuntary case or proceeding
under the Bankruptcy Code with respect to Grantor or Ground Lessor, as applicable, (b) any other
voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding with respect to
Grantor or Ground Lessor, as applicable, (c) any liquidation, dissolution, reorganization or
winding up of Grantor or Ground Lessor, as applicable, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy or (d) any assignment for the benefit of creditors or any
other marshalling of assets and liabilities of Grantor or Ground Lessor, as applicable.



"Insurance Proceeds” means the insurance claims under and the proceeds of any and all
policies of insurance covering the Property or any part thereof, including all returned and
unearned premiums with respect to any insurance relating to such Property, in each case whether now
or hereafter existing or arising.



"Land” means the real property described in Exhibit A attached hereto and made
a part hereof.



"Laws” means all federal, state and local laws, statutes, rules, ordinances,
regulations, codes, licenses, authorizations, decisions, injunctions, interpretations, orders or
decrees of any court or other Governmental Authority having jurisdiction as may be in effect from
time to time.



"Lease Damage Claims” means all of Grantor’s claims and rights to payment of damages
and other rights and remedies that may arise from (a) Ground Lessor’s failure to perform under the
Ground Lease, (b) rejection or disaffirmance of the Ground Lease under any Debtor Relief Law or in
connection with any Insolvency Proceeding involving Ground Lessor, (c) violation or breach by
Ground Lessor under the Ground Lease, or (d) Ground Lessor’s sale of Property pursuant to Section
363 of the Bankruptcy Code or similar provisions of any other Debtor Relief Law and all damages and
other sums payable with respect to or pursuant to any of the foregoing.



"Leases” means all leases (including, without limitation, Subleases, as such term is
defined in the Ground Lease), license agreements and other occupancy or use agreements (whether
oral or written), now or hereafter existing, excluding the Ground Lease, which cover or relate to
the Property or any part thereof, together with all options therefor, amendments thereto and
renewals, modifications and guaranties thereof, including any cash or security deposited under the
Leases to secure performance by the tenants of their obligations under the Leases, whether such
cash or security is to be held until the expiration of the terms of the Leases or applied to one or
more of the installments of rent coming due thereunder. All Leases shall be in compliance with
terms and provisions of the Credit Agreement.



"Lessee Bankruptcy Rights” means all of Grantor’s rights, remedies, powers, and
privileges arising at any time under, in, or in connection with or related to any Insolvency
Proceeding affecting Ground Lessor, including Grantor’s right (a) to object to Ground Lessor’s sale
of the Property under any Debtor Relief Law, including Bankruptcy Code Section 363, and (b) to make
the 365(h) Election, and any other comparable right under any other Debtor Relief Laws and all
claims, suits, actions, proceedings, rights, remedies and privileges related thereto or arising
therefrom, including Grantor’s right to claim any offset against rent and other charges and the
right to file and prosecute any proofs of claim, complaints, motions, applications, objections,
notices and any other document in any case relating to Ground Lessor under any Debtor Relief Laws,
any and all adequate protection or other value received by or to which Grantor is entitled to in
connection with any sale of the “Property” in connection with any Insolvency Proceeding involving
Ground Lessor.



"Letter of Credit” means any letter of credit for the account of Grantor or its
nominee in connection with the development of the Land or the construction of the Improvements,
together with any and all extensions, renewals or modifications thereof, substitutions therefor or
replacements thereof.



"Lien” means any Deed of Trust, deed of trust, pledge, security interest, assignment,
judgment, lien or charge of any kind, including any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code of any jurisdiction.



"Loan” means the loan from any Lender to Borrower, the repayment obligations in
connection with which are evidenced by the Note and the Credit Agreement.



"Loan Documents” means this Deed of Trust, each Note, the Guaranty, the Environmental
Agreement, the Credit Agreement, any Swap Contract, any application or reimbursement agreement
executed in connection with any Letter of Credit, and any and all other documents which Grantor,
Borrower, Guarantor or any other party or parties have executed and delivered, or may hereafter
execute and deliver, to evidence, secure or guarantee the Obligations, or any part thereof, as the
same may from time to time be extended, amended, restated, supplemented or otherwise modified.



"Note” means, singly or collectively, those certain Promissory Notes, each dated of
even date herewith made by Borrower and payable, respectively, to the order of each Lender in the
principal face amount of that Lender’s Commitment, such Promissory Notes being in the aggregate
original principal amount of Twenty Five Million and No/100 Dollars ($25,000,000.00), bearing
interest as provided in the Credit Agreement, as the same may from time to time be extended,
amended, restated, supplemented or otherwise modified.



"Notice” means a notice, request, consent, demand or other communication given in
accordance with the provisions of this Deed of Trust.



"Obligations” means all present and future debts, liabilities, obligations, covenants
and duties of Borrower to Beneficiary and Lenders arising pursuant to, and/or on account of, the
provisions of this Deed of Trust, the Note, the Credit Agreement or any of the other Loan
Documents, including the obligations: (a) to pay all principal, interest, late charges, prepayment
premiums (if any) and other amounts due at any time under the Note; (b) to pay all Expenses,
indemnification payments, fees and other amounts due at any time under this Deed of Trust or any of
the other Loan Documents, together with interest thereon as herein or therein provided; (c) to pay
and perform all obligations of Borrower under any Swap Contract; (d) to perform, observe and comply
with all of the other terms, covenants and conditions, expressed or implied, which Grantor and/or
Borrower are required to perform, observe or comply with pursuant to this Deed of Trust or any of
the other Loan Documents; and (e) to pay and perform all future advances and other obligations that
Grantor or any successor in ownership of all or part of the Property may agree to pay and/or
perform (whether as principal, surety or guarantor) for the benefit of Beneficiary, when a writing
evidences the parties’ agreement that the advance or obligation be secured by this Deed of Trust.



"Permitted Encumbrances” means (a) any matters set forth in any policy of title
insurance issued to Beneficiary and insuring Lenders’ interest in the Property which are acceptable
to Beneficiary as of the date hereof, (b) the Liens and interests of this Deed of Trust, and
(c) any other Encumbrance that Beneficiary shall expressly approve in its sole and absolute
discretion, as evidenced by a “marked-up” commitment for title insurance initialed on behalf of
Beneficiary or by a subsequent endorsement to any title insurance policy issued to Beneficiary and
insuring Administrative Agent’s and Lenders’ interest in the Property.



"Person” means an individual, a corporation, a partnership, a joint venture, a limited
liability company, a trust, an unincorporated association, any Governmental Authority or any other
entity.



"Personalty” means all personal property of any kind or nature whatsoever, whether
tangible or intangible and whether now owned or hereafter acquired, in which Grantor (or any
Borrower) now has or hereafter acquires an interest and which is used in the construction of, or is
placed upon, or is derived from or used in connection with the maintenance, use, occupancy or
enjoyment of, the Property, including (a) the Accessories; (b) the Accounts; (c) all franchise,
license, management or other agreements with respect to the operation of the Real Property or the
business conducted therein (provided all of such agreements shall be subordinate to this Deed of
Trust, and Beneficiary shall have no responsibility for the performance of Grantor’s obligations
thereunder) and all general intangibles (including payment intangibles, trademarks, trade names,
goodwill, software and symbols) related to the Real Property or the operation thereof; (d) all
sewer and water taps, appurtenant water stock or water rights, allocations and agreements for
utilities, bonds, letters of credit, permits, certificates, licenses, guaranties, warranties,
causes of action, judgments, Claims, profits, security deposits, utility deposits, and all rebates
or refunds of fees, Taxes, assessments, charges or deposits paid to any Governmental Authority
related to the Real Property or the operation thereof; (e) all of Grantor’s and Borrower’s rights
and interests under all Swap Contracts, including all rights to the payment of money from
Beneficiary under any Swap Contract and all accounts, deposit accounts and general intangibles,
including payment intangibles, described in any Swap Contract; (f) all insurance policies held by
Grantor with respect to the Property or Grantor’s operation thereof; (g) all money, Deed of Trusts
and documents (whether tangible or electronic) arising from or by virtue of any transactions
related to the Property, and all deposits and deposit accounts of Grantor (or any Borrower) with
Beneficiary related to the Property, including any such deposit account from which Grantor may from
time to time authorize Beneficiary to debit and/or credit payments due with respect to the Loan;
and (h) all sums at any time on deposit for the benefit of Grantor (or any Borrower) or held by
Beneficiary (whether deposited by or on behalf of Grantor or anyone else) pursuant to any of the
provisions of this Deed of Trust or the other Loan Documents together with all Additions to and
Proceeds of all of the foregoing.



"Proceeds,” when used with respect to any of the Property, means all proceeds of such
Property, including all Insurance Proceeds and all other proceeds within the meaning of that term
as defined in the Uniform Commercial Code of the State.



"Property” means the Real Property and the Personalty and all other rights, interests
and benefits of every kind and character which Grantor now has or hereafter acquires in, to or for
the benefit of the Real Property and/or the Personalty and all other property and rights used or
useful in connection therewith, including all Leases, all Rents, all Condemnation Awards, all
Proceeds, and all of Grantor’s right, title and interest in and to all Design and Construction
Contracts, all Contracts of Sale and all Refinancing Commitments.



"Property Assessments” means all Taxes, payments in lieu of taxes, water rents, sewer
rents, assessments, condominium and owner’s association assessments and charges, maintenance
charges and other governmental or municipal or public or private dues, charges and levies and any
Liens (including federal tax liens) which are or may be levied, imposed or assessed upon the
Property or any part thereof, or upon any Leases or any Rents, whether levied directly or
indirectly or as excise taxes, as income taxes, or otherwise.



"Real Property” means the Land and Improvements, together with (a) all estates, title
interests, title reversion rights, remainders, increases, issues, profits, rights of way or uses,
additions, accretions, servitudes, strips, gaps, gores, liberties, privileges, water rights, water
courses, alleys, passages, ways, vaults, licenses, tenements, franchises, hereditaments,
appurtenances, easements, rights-of-way, rights of ingress or egress, parking rights, timber,
crops, mineral interests and other rights, now or hereafter owned by Grantor and belonging or
appertaining to the Land or Improvements; (b) all right, title and interest of Grantor in all
development rights appurtenant to the Land or Improvements, including, but not limited to, any oil,
gas and other mineral rights; (c) all Claims whatsoever of Grantor with respect to the Land or
Improvements, either in law or in equity, in possession or in expectancy; (d) all estate, right,
title and interest of Grantor in and to all streets, roads and public places, opened or proposed,
now or hereafter adjoining or appertaining to the Land or Improvements; (e) all options to purchase
the Land or Improvements, or any portion thereof or interest therein, and any greater estate in the
Land or Improvements, and all Additions to and Proceeds of the foregoing; and (f) the leasehold
estate under the Ground Lease, including, without limitation, (i) all Lessor Bankruptcy Rights, and
(ii) all Lease Damage Claims, this Deed of Trust constituting a present, irrevocable and
unconditional assignment of Lease Damage Claims which shall continue in effect until the
Obligations have been satisfied.



"Refinancing Commitment” means any commitment from or other agreement with any Person
providing for the financing of the Property, some or all of the proceeds of which are intended to
be used for the repayment of all or a portion of the Loan.



"Rents” means all of the rents, royalties, issues, profits, revenues, earnings, income
and other benefits of the Property, or arising from the use or enjoyment of the Property, including
all such amounts paid under or arising from any of the Leases and all fees, charges, accounts or
other payments for the use or occupancy of rooms or other public facilities within the Real
Property.



"State” means the state in which the Land is located.



"Swap Contract” means any agreement, whether or not in writing, relating to any Swap
Transaction, including, unless the context otherwise clearly requires, any form of master agreement
(the “Master Agreement”) published by the International Swaps and Derivatives Association,
Inc., or any other master agreement, entered into prior to the date hereof or any time after the
date hereof, between Swap Counterparty and Borrower (or any Affiliate [as defined in the Credit
Agreement]), together with any related schedule and confirmation, as amended, supplemented,
superseded or replaced from time to time.



"Swap Counterparty” means Lender or an Affiliate of Lender, in its capacity as
counterparty under any Swap Contract.



"Swap Transaction” means any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap or option, bond option,
note or bill option, interest rate option, forward foreign exchange transaction, cap transaction,
collar transaction, floor transaction, currency swap transaction, cross-currency rate swap
transaction, swap option, currency option, credit swap or default transaction, T-lock, or any other
similar transaction (including any option to enter into the foregoing) or any combination of the
foregoing, entered into prior to the date hereof or anytime after the date hereof between Swap
Counterparty and Grantor (or its Affiliate) so long as a writing, such as a Swap Contract,
evidences the parties’ intent that such obligations shall be secured by this Deed of Trust (and any
other Deed of Trust [as such term is defined in the Credit Agreement]) in connection with the Loan.



"Taxes” means all taxes and assessments, whether general or special, ordinary or
extraordinary, or foreseen or unforeseen, which at any time may be assessed, levied, confirmed or
imposed by any Governmental Authority or any community facilities or other private district on
Grantor or on any of its properties or assets or any part thereof or in respect of any of its
franchises, businesses, income or profits.



"Transfer” means any direct or indirect sale, assignment, conveyance or transfer,
including any Contract of Sale and any other contract or agreement to sell, assign, convey or
transfer, whether made voluntarily or by operation of Law or otherwise, and whether made with or
without consideration.



"Trustee” means Peter S. Graf, or his successor in trust who may be acting under and
pursuant to this Deed of Trust from time to time.



"UCC” or “Uniform Commercial Code” means The Texas Business and Commerce Code,
as amended from time to time.



Article II

Granting Clauses; Condition of Grant.




Section 2.1 Conveyances and Security Interests.



In consideration of the provisions of this Deed of Trust and the sum of TEN DOLLARS ($10.00)
cash in hand paid and other good and valuable consideration the receipt and sufficiency of which
are acknowledged by Grantor, in order to secure the prompt payment and performance of the
Obligations, Grantor hereby (a) GRANTS, BARGAINS, SELLS, CONVEYS, TRANSFERS, ASSIGNS and SETS OVER
to Trustee, TO HAVE AND TO HOLD, with GENERAL WARRANTY, all of Grantor’s right, title and interest
now or hereafter acquired, in and to the Real Property, with all rights, appurtenances, and
privileges thereunto belonging, with the power of sale for the use and benefit of Beneficiary,
Beneficiary’s successors and assigns; (b) grants to Beneficiary a security interest in all of
Grantor’s right, title and interest in and to the Ground Lease, including any options to purchase,
extend or renew provided for in the Ground Lease and any nondisturbance, attornment and recognition
agreement benefiting Grantor with respect to the Ground Lease, together with all credits, deposits,
privileges, rights, estates, title and interest of Grantor as tenant under the Ground Lease
(including all rights of Grantor to treat the Ground Lease as terminated pursuant to a 365(h)
Election, or any other Debtor Relief Law, together with all rights, remedies and privileges related
thereto), and all books and records that contain records of payments of rent or security made under
the Ground Lease and all of Grantor’s claims and rights to the payment of any Lease Damage Claim;
(c) grants to Beneficiary a security interest in the Personalty; (d) assigns to Beneficiary, and
grants to Beneficiary a security interest in, all Condemnation Awards and all Insurance Proceeds;
(e) assigns to Beneficiary, and grants to Beneficiary a security interest in, all of Grantor’s
right, title and interest in, but not any of Grantor’s obligations or liabilities under, all Swap
Contracts, Design and Construction Documents, all Contracts of Sale and all Refinancing
Commitments, and all Letters of Credit; and (f) assigns to Beneficiary, and grants to Beneficiary a
security interest in, all Accounts arising from or related to any transactions related to the
Premises (including but not limited to Grantor’s rights in tenants’ security deposits, deposits
with respect to utility services to the Premises, and any deposits, deposit accounts or reserves
hereunder or under any other Loan Documents), and any account or deposit account from which Grantor
may from time to time authorize Holder to debit and/or credit payments due with respect to the Loan
or any Swap Contract, all rights to the payment of money from Beneficiary under any Swap Contract,
and all accounts, deposit accounts and general intangibles including payment intangibles, described
in any Swap Contract. All Persons who may have or acquire an interest in all or any part of the
Property will be deemed to have notice of, and will be bound by, the terms of the Obligations and
each other agreement or Deed of Trust made or entered into in connection with each of the
Obligations. Such terms include any provisions in the Note, the Credit Agreement or any Swap
Contract which provide that the interest rate on one or more of the Obligations may vary from time
to time.



Section 2.2 Absolute Assignment of Leases and Rents.



In consideration of the making of the Loan by Lenders to Borrower, the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Grantor absolutely and unconditionally assigns the Leases and Rents to
Beneficiary for the benefit of Lenders. This assignment is, and is intended to be, an
unconditional, absolute and present assignment from Grantor to Beneficiary of all of Grantor’s
right, title and interest in and to the Leases and the Rents and not an assignment in the nature of
a pledge of the Leases and Rents or the mere grant of a security interest therein. So long as no
Event of Default shall exist, however, and so long as Grantor is not in default in the performance
of any obligation, covenant or agreement contained in the Leases, Grantor shall have a license
(which license shall terminate automatically and without notice upon the occurrence of an Event of
Default or a default by Grantor under the Leases) to collect, but not prior to accrual, all Rents.
Grantor agrees to collect and hold all Rents in trust for Beneficiary and to use the Rents for the
payment of the cost of operating and maintaining the Property and for the payment of the other
Obligations before using the Rents for any other purpose.



Section 2.3 Security Agreement and Financing Statement.



This Deed of Trust (a) creates a security interest in the Personalty, and, to the extent the
Personalty is not real property, this Deed of Trust constitutes a security agreement from Grantor
to Beneficiary under the Uniform Commercial Code of the State, and (b) creates a security interest
in favor of Beneficiary for all sums at any time on deposit for the benefit of Grantor or held by
Beneficiary (whether deposited by or on behalf of Grantor or anyone else) pursuant to any of the
provisions of this Deed of Trust or the other Loan Documents. In addition to all of its other
rights under this Deed of Trust and otherwise, Beneficiary shall have all of the rights of a
secured party under the Uniform Commercial Code of the State, as in effect from time to time, or
under the Uniform Commercial Code in force from time to time in any other state to the extent the
same is applicable Law. This Deed of Trust shall also be effective as a financing statement with
respect to any other Property as to which a security interest may be perfected by the filing of a
financing statement and may be filed as such in any appropriate filing or recording office. The
respective mailing addresses of Grantor and Beneficiary are set forth in the Preamble to this Deed
of Trust. A carbon, photographic or other reproduction of this Deed of Trust or any other
financing statement relating to this Deed of Trust shall be sufficient as a financing statement for
any of the purposes referred to in this Section. Grantor hereby irrevocably authorizes Beneficiary
at any time and from time to time to file any initial financing statements, amendments thereto and
continuation statements as authorized by applicable Law, reasonably required by Beneficiary to
establish or maintain the validity, perfection and priority of the security interests granted in
this Deed of Trust. The foregoing authorization includes Grantor’s irrevocable authorization for
Beneficiary at any time and from time to time to file any initial financing statements and
amendments thereto that indicate the Personalty (i) as “all assets” of Grantor or words of similar
effect, regardless of whether any particular asset comprised in the Personalty falls within the
scope of the Uniform Commercial Code of the State or the jurisdiction where the initial financing
statement or amendment is filed, or (ii) as being of an equal or lesser scope or with greater
detail.



Section 2.4 Fixture Financing Statement.



From the date of its recording, this Deed of Trust shall be effective as a fixture financing
statement within the purview of the Uniform Commercial Code with respect to the Real Property and
the goods described herein, which goods are or are to become fixtures related to the Real Property
(collectively, with the Personalty and other items described in Section 2.3 above, referred
to herein as the “Collateral”). The addresses of Grantor (Debtor) and Beneficiary (Secured
Party) are set forth in the Preamble to this Deed of Trust. This Deed of Trust is to be filed for
recording with the Recorder of Deeds of the county or the counties where the Property is located.
Grantor hereby appoints Beneficiary as its attorney-in-fact to execute and file on its behalf any
financing statements, continuation statements or other statements in connection therewith which
Beneficiary deems necessary or reasonably advisable to preserve and maintain the priority of the
lien hereof, or to extend the effectiveness thereof, under the Uniform Commercial Code or any other
laws which may hereafter become applicable. This power, being coupled with an interest, shall be
irrevocable so long as any part of the Obligations remains unpaid. Grantor shall pay to
Beneficiary, from time to time, upon demand, any and all costs and expenses incurred by Beneficiary
in connection with the filing of any such statements including, without limitation, reasonable
attorneys’ fees and all disbursements and such amounts shall be part of the Obligations secured by
this Deed of Trust.



Section 2.5 Rights of Beneficiary.



In addition to Beneficiary’s rights as a “Secured Party” under the UCC, Beneficiary may, but
shall not be obligated to, at any time without notice and at the expense of Grantor: (a) give
notice to any person of Beneficiary’s rights hereunder and enforce such rights at law or in equity;
(b) insure, protect, defend and preserve the Collateral or any rights or interests of Beneficiary
therein if Grantor fails to do so after notice from Beneficiary; and (c) during the existence of an
Event of Default endorse, collect and receive any right to payment of money owing to Grantor under
or from the Collateral. Notwithstanding the above, in no event shall Beneficiary be deemed to have
accepted any property other than cash in satisfaction of any obligation of Grantor to Beneficiary
or Lenders unless Beneficiary shall make an express written proposal thereof under UCC §9.621, or
other applicable law, and the provisions of UCC §9.620 have been satisfied.



Section 2.6 Release of Deed of Trust and Termination of Assignments and Financing
Statements.



If and when Borrower has paid and performed all of the Obligations, and no further advances
are to be made under the Credit Agreement, Beneficiary will provide a release of the Property from
the lien of this Deed of Trust and termination statements for filed financing statements, if any,
to Grantor. Grantor shall be responsible for the recordation of such release and the payment of
any recording and filing costs. Upon the recording of such release and the filing of such
termination statements, the absolute assignments set forth in shall automatically terminate and
become null and void.



Article III

Representations and Warranties.




	 	 	 
	Grantor makes the following representations and warranties to Beneficiary and Lenders:

	Section 3.1

	 	Title to Real Property.
	
 
	 	 






Grantor (a) owns good and marketable leasehold title to the Real Property, (b) owns all of the
beneficial and equitable leasehold interest in and to the Real Property, and (c) is lawfully seized
and possessed of the leasehold interest in and to the Real Property. Grantor has the right and
authority to convey the leasehold interest in and to the Real Property and does hereby convey the
leasehold interest in and to the Real Property with general warranty. The Real Property is subject
to no Encumbrances other than the Permitted Encumbrances.



Section 3.2 Title to Other Property.



Grantor has good title to the Personalty, and the Personalty is not subject to any Encumbrance
other than the Permitted Encumbrances. None of the Leases, Rents, Design and Construction
Documents, Contracts of Sale or Refinancing Commitments are subject to any Encumbrance other than
the Permitted Encumbrances.



Section 3.3 Property Assessments.



The Real Property is assessed for purposes of Property Assessments as a separate and distinct
parcel from any other property, such that the Real Property shall never become subject to the Lien
of any Property Assessments levied or assessed against any property other than the Real Property.



Section 3.4 Independence of the Real Property.



Except as set forth in any Permitted Encumbrance, no buildings or other improvements on
property not covered by this Deed of Trust rely on the Real Property or any interest therein to
fulfill any requirement of any Governmental Authority for the existence of such property, building
or improvements; and none of the Real Property relies, or will rely, on any property not covered by
this Deed of Trust or any interest therein to fulfill any requirement of any Governmental
Authority. The Real Property has been properly subdivided from all other property in accordance
with the requirements of any applicable Governmental Authorities.



Section 3.5 Existing Improvements.



The existing Improvements, if any, were, to the best of Grantor’s knowledge, constructed, and
are being used and maintained, in accordance with all applicable Laws, including zoning Laws.



Section 3.6 Leases and Tenants.



The Leases are valid and are in full force and effect, and are in strict compliance with the
requirements set forth in the Credit Agreement. Grantor is not in default under any of the terms
thereof. Except as expressly permitted in the Credit Agreement, Grantor has not accepted any Rents
in advance of the time the same became due under the Leases and has not forgiven, compromised or
discounted any of the Rents. Grantor has title to and the right to assign the Leases and Rents to
Beneficiary, and no other assignment of the Leases or Rents has been granted. To the best of
Grantor’s knowledge and belief, no tenant or tenants occupying, individually or in the aggregate,
more than five percent (5%) of the net rentable area of the Improvements are in default under their
Lease(s) or are the subject of any bankruptcy, insolvency or similar proceeding. Notwithstanding
the requirements of the Master Lease, the Master Lease Guarantor did not deliver a Guaranty in
connection therewith (as such terms are defined in the Ground Lease).



Section 3.7 Specific Representations, Warranties and Covenants Regarding Ground Lease.



In addition to Grantor’s representations, warranties and covenants elsewhere contained herein,
and without limitation of same, the Grantor specifically represents, warrants, covenants and agrees
as follows as to the Ground Lease:



(a) Rent. Grantor will promptly pay, when due and payable, the rent and all other
sums and charges mentioned in and made payable by Grantor under the Ground Lease.



(b) Compliance. Grantor will promptly perform and observe all of the terms, covenants
and conditions required to be performed and observed by Grantor as tenant under the Ground Lease,
within the periods provided in the Ground Lease, and will do all things necessary to preserve and
to keep unimpaired its rights under the Ground Lease.



(c) Acquisition of Fee. Grantor shall not acquire the fee interest in the Land
without the prior written approval of the Beneficiary. In the event Grantor acquires fee title to
the Land, such interest shall be deemed to be subject to and covered by this Deed of Trust, and in
confirmation thereof, Grantor shall promptly execute, acknowledge and deliver such instruments,
documents and agreements as may be reasonably required by Beneficiary to affirm, and perfect
Beneficiary’s interest in such Property, including without limitation, a Deed of Trust or deed of
trust to confirm Grantor’s right, title and interest in and to the fee title of Grantor to the
Land.



(d) Lessor’s Default. Grantor shall promptly notify Beneficiary in writing of any
default by the Ground Lessor in the performance or observance of any of the material terms,
covenants or conditions on the part of Ground Lessor to be performed or observed under the Ground
Lease. Further, Grantor, promptly upon learning that Ground Lessor has failed to perform the
material terms and provisions under the Ground Lease (including by reason of a rejection or
disaffirmance or purported rejection or disaffirmance of such Ground Lease pursuant to any Debtor
Relief Law), shall notify Beneficiary of any such failure to perform.



(e) Grantor’s Default. Grantor shall (i) promptly notify Beneficiary in writing of
the receipt by Grantor of any written notice from Ground Lessor of any default by Grantor in the
performance or observance of any of the terms, covenants, or conditions on the part of Grantor to
be performed or observed under the Ground Lease; (ii) promptly notify Beneficiary in writing of the
receipt by Grantor of any written notice from Ground Lessor of termination of the Ground Lease
pursuant to the provisions of the Ground Lease, and (iii) promptly cause a copy of each such notice
described above received by Grantor from Ground Lessor under the Ground Lease to be delivered to
Beneficiary.



(f) Estoppel Certificates. After the date hereof, Grantor will, within the time
period for delivery of estoppels set forth in the Ground Lease and subject to the limitations
therein on the frequency of which they can be requested, after written demand from Beneficiary, use
commercially reasonable efforts to obtain from Ground Lessor and deliver to Beneficiary an estoppel
certificate in form and substance reasonably satisfactory to Beneficiary stating that the Ground
Lease is in full force and effect, is unmodified, that no notice of termination thereon has been
served on Grantor or Ground Lessor, as the case may be, stating the date to which the rent has been
paid, stating whether there are any defaults thereunder and specifying the nature of such defaults.



(g) Proof of Payment. Grantor will furnish Beneficiary within fifteen (15) days of
the request therefor, proof of payment of all items which are required to be paid by Grantor
pursuant to the Ground Lease.



(h) Waiver, Modification of Amendment; No Subordination. Grantor shall not consent to
any waiver or modification, amendment or cancellation of any provision of the Ground Lease without
the prior written consent of Beneficiary. Grantor shall not consent to the subordination of the
Ground Lease to any Deed of Trust or deed of trust of the fee interest of Ground Lessor in the Land
without the prior written consent of the Beneficiary.



(i) Cure of Default. Grantor shall execute and deliver, on request of Beneficiary,
such instruments as Beneficiary may reasonably request and deem useful or required to permit
Beneficiary to cure any default under the Ground Lease or permit Beneficiary to take such other
action as Beneficiary reasonably considers desirable to cure or remedy the matter in default and
preserve the interest of Beneficiary in the Property to the extent that Grantor shall not be
diligently pursing such cure.



(j) Authority to Act on Behalf of Grantor. During an Event of Default hereunder,
Grantor hereby authorizes Beneficiary to pay any and all rental payments or similar sums to be paid
by Grantor payment of which is then due under the Ground Lease, with interest and penalties thereon
if charged by Ground Lessor under the Ground Lease; and to incur and pay all sums reasonably
necessary to protect Beneficiary’s rights hereunder and under the Ground Lease. Such sums shall be
included in the amount due and owing pursuant to the Credit Agreement and shall accrue interest at
the rate provided for therein.



(k) Present Possession of Leasehold. The interest of the tenant under the Ground
Lease is presently vested in Grantor.



(l) No Existing Default. To the best of Grantor’s knowledge, there is no existing
default (or occurrence which with the lapse of time would constitute a default) or grounds for
default under the provisions of the Ground Lease or in the performance of any of the terms,
covenants, conditions or warranties thereof on the part of Grantor or Ground Lessor thereof to be
kept, performed and observed under the Ground Lease.



(m) Early Termination of Ground Lease. If the Ground Lease is for any reason
whatsoever terminated prior to the natural expiration of its term, and if, pursuant to any
provision of the Ground Lease or otherwise, Beneficiary or its designee shall acquire from Ground
Lessor thereunder, another lease of the Property, Grantor shall have no right, title or interest in
or to such other lease or the leasehold estate created thereby.



Section 3.8 Treatment of Ground Lease in Bankruptcy of Ground Lessor.



(a) Rejection or Affirmation of Ground Lease. If Ground Lessor rejects the Ground
Lease pursuant to Section 365 of the Bankruptcy Code, then Grantor shall not exercise a 365(h)
Election in favor of terminating the Ground Lease without the prior written consent of Beneficiary.
To the extent permitted by law, Grantor shall not suffer, permit or consent to the termination of
any Ground Lease pursuant to the Debtor Relief Law without Beneficiary’s prior written consent.
Grantor acknowledges that because the Ground Lease is a primary element of Beneficiary’s security
for the Obligations secured hereunder, it is not anticipated that Beneficiary would consent to
termination of any Ground Lease. If Grantor (or Beneficiary as assignee from Grantor of any 365(h)
Election) makes any 365(h) Election in violation of this Deed of Trust, then such 365(h) Election
shall be void and of no force or effect.



(b) 365(h) Election. To the extent permitted by law, Grantor hereby assigns to
Beneficiary the 365(h) Election until the Obligations secured hereunder have been satisfied in
full. Grantor acknowledges and agrees that the foregoing assignment of the 365(h) Election is one
of the rights that Beneficiary, subject to the terms herein, may use at any time to protect and
preserve Beneficiary’s other rights and interests under this Deed of Trust. Grantor further
acknowledges that exercise of the 365(h) Election by Grantor in favor of terminating the Ground
Lease without Beneficiary’s prior consent would constitute waste prohibited by this Deed of Trust.
Notwithstanding anything to the contrary in this Section 3.8, prior to an Event of Default,
Beneficiary shall not exercise the 365(h) Election in favor of terminating the Ground Lease without
Grantor’s consent. Grantor acknowledges and agrees that the 365(h) Election is in the nature of a
remedy available to Grantor under the Ground Lease, and is not a property interest that Grantor can
separate from the Ground Lease as to which it arises. Therefore, Grantor agrees and acknowledges
that exercise of the 365(h) Election in favor of preserving the right to possession under the
Ground Lease shall not be deemed to constitute Beneficiary’s taking or sale of the Land (or any
element thereof) and shall not entitle Grantor to any credit against the Obligations secured
hereunder or otherwise impair Beneficiary’s remedies.



(c) Lien on Occupancy Rights. Grantor acknowledges that if the 365(h) Election is
exercised in favor of Grantor’s remaining in possession under the Ground Lease, then Grantor’s
resulting occupancy rights, as adjusted by the effect of Section 365 of the Bankruptcy Code, shall
then be part of the Property and shall be subject to the lien of this Deed of Trust.



(d) Rejection of Lease by Lessor. If the Ground Lessor rejects or disaffirms any
Ground Lease or purports or seeks to disaffirm such Ground Lease pursuant to any Debtor Relief Law,
then:




(i) To the fullest extent not prohibited by applicable law, Grantor shall remain in
possession subject to any Leases of the Property demised under the Ground Lease and shall
perform all acts reasonably necessary for Grantor to remain in such possession for the
unexpired term of the Ground Lease (including all renewals), whether the then existing terms
and provisions of the Ground Lease require such acts or otherwise; and




(ii) All the terms and provisions of this Deed of Trust and the lien created by this
Deed of Trust shall remain in full force and effect and shall extend automatically to all of
Grantor’s rights and remedies arising at any time under, or pursuant to, Section 365(h) of
the Bankruptcy Code, including all of Grantor’s rights to remain in possession of the
Property.



(e) Setoff by Grantor. If pursuant to Section 365(h)(1)(B) of the Bankruptcy Code or
any other similar Debtor Relief Law, Grantor seeks to setoff against any rent under the Ground
Lease the amount of any Lease Damage Claim, then Grantor shall notify Beneficiary of its intent to
do so at least twenty (20) days before effecting such setoff. Such Notice shall set forth the
amounts proposed to be so setoff and the basis for such setoff. If Beneficiary reasonably objects
to all or any part of such setoff, then Grantor shall not effect any setoff of the amounts to which
Beneficiary reasonably objects. If Beneficiary approves such setoff, then Grantor may affect such
setoff as set forth in Grantor’s setoff notice. Neither Beneficiary’s failure to object, nor any
objection or other communication between Beneficiary and Grantor that relates to such offset, shall
constitute Beneficiary’s approval of any such offset. Grantor shall indemnify Beneficiary against
any offset against the rent reserved in any Lease.



(f) Ground Lessor’s Sale of Land. In connection with any Insolvency Proceeding of
Ground Lessor, Grantor, after receipt of notice that Ground Lessor intends to conduct a sale of the
Property, shall promptly notify Beneficiary of such intention and, to the fullest extent not
prohibited by applicable law, Grantor shall timely file any and all objections, pleadings and
notices contesting and objecting to Ground Lessor’s intention to sell the Property, whether such
sale is pursuant to Section 363 of the Bankruptcy Code or any other Debtor Relief Law.



(g) Notice of Bankruptcy. Grantor, upon learning of any Insolvency Proceeding of
Ground Lessor, shall immediately notify Beneficiary of such Insolvency Proceeding, including using
good faith efforts to provide all relevant information pertaining thereto, including jurisdiction,
case number, and relevant case information. Grantor, upon learning of any actions by Ground Lessor
to sell, encumber or otherwise effect the Property, or terminate, reject or assign the Ground
Lease, shall promptly notify Beneficiary, including using commercially reasonable efforts to
provide Beneficiary with copies of any and all notices and pleadings filed in connection with the
foregoing.



Article IV

Affirmative Covenants.




Section 4.1 Obligations.



Grantor agrees to promptly pay and perform, or cause Borrower to pay and perform, all of the
Obligations, time being of the essence in each case.



Section 4.2 Property Assessments; Documentary Taxes.



Grantor (a) will promptly pay in full and discharge all Property Assessments, and (b) will
furnish to Beneficiary, upon demand, the receipted bills for such Property Assessments prior to the
day upon which the same shall become delinquent. Property Assessments shall be considered
delinquent as of the first day any interest or penalty commences to accrue thereon. Grantor will
promptly pay all stamp, documentary, recordation, transfer and intangible taxes and all other taxes
that may from time to time be required to be paid with respect to the Loan, the Note, this Deed of
Trust or any of the other Loan Documents.



Section 4.3 Permitted Contests.



Grantor shall not be required to pay any of the Property Assessments, or to comply with any
Law, so long as Grantor shall in good faith, and at its cost and expense, contest the amount or
validity thereof, or take other appropriate action with respect thereto, in good faith and in an
appropriate manner or by appropriate proceedings; provided that (a) such proceedings operate to
prevent the collection of, or other realization upon, such Property Assessments or enforcement of
the Law so contested, (b) there will be no sale, forfeiture or loss of the Property during the
contest, (c) Beneficiary or Lenders are not subjected to any Claim as a result of such contest, and
(d) Grantor provides assurances satisfactory to Beneficiary (including the establishment of an
appropriate reserve account with Beneficiary) of its ability to pay such Property Assessments or
comply with such Law in the event Grantor is unsuccessful in its contest. Each such contest shall
be promptly prosecuted to final conclusion or settlement, and Grantor shall indemnify and save
Beneficiary harmless against all Claims in connection therewith. Promptly after the settlement or
conclusion of such contest or action, Grantor shall comply with such Law and/or pay and discharge
the amounts which shall be levied, assessed or imposed or determined to be payable, together with
all penalties, fines, interests, costs and expenses in connection therewith.



Section 4.4 Compliance with Laws.



Grantor will comply with and not violate, and cause to be complied with and not violated, all
present and future Laws applicable to the Property and its use and operation.



Section 4.5 Maintenance and Repair of the Property.



Grantor, at Grantor’s sole expense, will (a) keep and maintain Improvements and Accessories in
good condition, working order and repair, and (b) make all necessary or appropriate repairs and
Additions to Improvements and Accessories, so that each part of the Improvements and all of the
Accessories shall at all times be in good condition and fit and proper for the respective purposes
for which they were originally intended, erected, or installed.



Section 4.6 Additions to Security.



All right, title and interest of Grantor in and to all Improvements and Additions hereafter
constructed or placed on the Property and in and to any Accessories hereafter acquired shall,
without any further Deed of Trust, conveyance, assignment or other act by Grantor, become subject
to the Lien of this Deed of Trust as fully and completely, and with the same effect, as though now
owned by Grantor and specifically described in the granting clauses hereof. Grantor agrees,
however, to execute and deliver to Beneficiary such further documents as may be required by the
terms of the Credit Agreement and the other Loan Documents.



Section 4.7 Subrogation.



To the extent permitted by Law, Beneficiary shall be subrogated, notwithstanding its release
of record, to any Lien now or hereafter existing on the Property to the extent that such Lien is
paid or discharged by Beneficiary whether or not from the proceeds of the Loan. This Section shall
not be deemed or construed, however, to obligate Beneficiary to pay or discharge any Lien.



Section 4.8 Leases.



(a) Except as expressly permitted in the Credit Agreement, Grantor shall not enter into any
Lease with respect to all or any portion of the Property without the prior written consent of
Beneficiary.



(b) Beneficiary shall not be obligated to perform or discharge any obligation of Grantor under
any Lease. The assignment of Leases provided for in this Deed of Trust in no manner places on
Beneficiary any responsibility for (i) the control, care, management or repair of the Property,
(ii) the carrying out of any of the terms and conditions of the Leases, (iii) any waste committed
on the Property, or (iv) any dangerous or defective condition on the Property (whether known or
unknown).



(c) No approval of any Lease by Beneficiary shall be for any purpose other than to protect
Beneficiary’s security and to preserve Beneficiary’s rights under the Loan Documents, and no such
approval shall result in a waiver of a Default or Event of Default.



Section 4.9 Insurance.



Grantor will at all times keep the Property insured in the manner and to the extent required
in the Credit Agreement. In addition, if the area where the Property is located is now or in the
future designated as a special flood hazard area pursuant to the Flood Disaster Protection Act of
1973 (as amended), and if the community where the Property is located is participating in the
National Flood Insurance Program, Grantor will obtain and continuously maintain a National Flood
Insurance Program Standard Flood Insurance Policy or equivalent covering the Property. Beneficiary
may, from time to time, require such additional insurance as Beneficiary may determine is
reasonably necessary to protect Beneficiary’s Lien hereunder or to assure repayment of all the
Obligations.



Section 4.10 Insurance/Condemnation Proceeds.



All Insurance/Condemnation Awards will be paid to Beneficiary for application to the
Obligations in the manner and to the extent provided in the Credit Agreement.



Section 4.11 Beneficiary’s Right to Cause Performance of Covenants.



If Grantor fails to maintain any insurance and pay the premiums for insurance as required in
this Article, to pay all taxes, penalties, assessments, charges, and claims as required in this
Article, or to repair and maintain any of the Property as required in this Article, or if Grantor
fails to keep or perform any of Grantor’s other covenants herein, Beneficiary may obtain such
insurance, cause such repairs and maintenance to be made, pay such taxes, penalties, assessments,
charges, or claims, or cause such other covenants to be performed. Grantor will pay to Beneficiary
on demand all amounts paid by Beneficiary for the foregoing and the amount of all expenses incurred
by Beneficiary in connection therewith, together with interest thereon from the date when incurred.
Such amounts and interest are secured by this Deed of Trust, which creates a Lien in the Property
prior to any right, title, interest, lien, or claim in or upon the Property subordinate to the Lien
of this Deed of Trust. Any such payments by Beneficiary will not be deemed a waiver of any Default
or Event of Default. Beneficiary is not obligated to exercise Beneficiary’s rights under this
Section and is not liable to Grantor for any failure to do so.



Article V

Negative Covenants.




Section 5.1 Encumbrances.



Grantor will not permit any of the Property to become subject to any Encumbrance other than
the Permitted Encumbrances. Within thirty (30) days after the filing of any mechanic’s lien or
other Lien or Encumbrance against the Property, Grantor will promptly discharge the same by payment
or filing a bond or otherwise as permitted by Law. So long as Beneficiary’s security has been
protected by the filing of a bond or otherwise in a manner satisfactory to Beneficiary in its sole
and absolute discretion, Grantor shall have the right to contest in good faith any Claim, Lien or
Encumbrance, provided that Grantor does so diligently and without prejudice to Beneficiary or delay
in completing construction of the Improvements. Grantor shall give Beneficiary Notice of any
default under any Lien and Notice of any foreclosure or threat of foreclosure with respect to any
of the Property.



Section 5.2 Transfer of the Property.



Grantor will not Transfer, or contract to Transfer, all or any part of the Property or any
legal or beneficial interest therein (except for certain Transfers of the Accessories expressly
permitted in this Deed of Trust). A Change of Control (as such term is defined in the Credit
Agreement) shall be deemed to be a prohibited Transfer of the Property.



Section 5.3 Removal, Demolition or Alteration of Accessories and Improvements.



Except to the extent permitted by the following sentence and to the extent required to comply
with the terms of the Ground Lease, no Improvements or Accessories shall be removed, demolished or
materially altered without the prior written consent of Beneficiary. Grantor may remove and
dispose of, free from the Lien of this Deed of Trust, such Accessories as from time to time become
worn out or obsolete, provided that, either (a) at the time of, or prior to, such removal, any such
Accessories are replaced with other Accessories which are free from Liens other than Permitted
Encumbrances and have a value at least equal to that of the replaced Accessories (and by such
removal and replacement Grantor shall be deemed to have subjected such Accessories to the Lien of
this Deed of Trust), or (b) so long as a prepayment may be made without the imposition of any
premium pursuant to the Note, such Accessories are sold at fair market value for cash and the net
cash proceeds received from such disposition are paid over promptly to Beneficiary to be applied to
the prepayment of the principal of the Loan.



Section 5.4 Additional Improvements.



Grantor will not construct any Improvements other than those presently on the Land and those
described in the Credit Agreement without the prior written consent of Beneficiary. Grantor will
complete and pay for, within a reasonable time, any Improvements which Grantor is permitted to
construct on the Land. Grantor will construct and erect any permitted Improvements (a) strictly in
accordance with all applicable Laws and any private restrictive covenants, (b) entirely on lots or
parcels of the Land, (c) so as not to encroach upon any easement or right of way or upon the land
of others, and (d) wholly within any building restriction and setback lines applicable to the Land.



Section 5.5 Restrictive Covenants, Zoning, etc.



Without the prior written consent of Beneficiary, Grantor will not initiate, join in, or
consent to any change in, any restrictive covenant, easement, zoning ordinance or other public or
private restrictions limiting or defining the uses which may be made of the Property. Grantor
(a) will promptly perform and observe, and cause to be performed and observed, all of the terms and
conditions of all agreements affecting the Property, and (b) will do or cause to be done all things
necessary to preserve intact and unimpaired any and all easements, appurtenances and other
interests and rights in favor of, or constituting any portion of, the Property.



Article VI

Events of Default.




The occurrence or happening, from time to time, of any one or more of the following shall
constitute an Event of Default under this Deed of Trust:



Section 6.1 Payment Obligations.



Grantor or any other Borrower fails to pay (i) any of the Obligations within five (5) days
when due (provided, however, there shall be no five (5) day grace period for amounts due at
maturity or upon acceleration of the Loan), or (ii) within five (5) days after the same becomes
due, any other amount payable hereunder or under any other Loan Document.



Section 6.2 Transfers.



Grantor Transfers, or contracts to Transfer, all or any part of the Property or any legal or
beneficial interest therein (except for Transfers of the Accessories expressly permitted under this
Deed of Trust). A Change in Control shall be deemed to be a prohibited Transfer of the Property
constituting an Event of Default.



Section 6.3 Other Obligations.



Grantor fails to promptly perform or comply with any of the Obligations set forth in this Deed
of Trust (other than those expressly described in other Sections of this Article VI), and
such failure continues uncured for a period of thirty (30) days after Notice from Beneficiary to
Grantor.



Section 6.4 Event of Default Under Other Loan Documents.



An Event of Default (as defined therein) occurs under the Note or the Credit Agreement, or
Borrower or Guarantor fails to promptly pay, perform, observe or comply with any obligation or
agreement contained in any of the other Loan Documents (within any applicable grace or cure
period).



Section 6.5 Change in Zoning or Public Restriction.



Any change in any zoning ordinance or regulation or any other public restriction is enacted,
adopted or implemented that limits or defines the uses which may be made of the Property such that
the present or intended use of the Property, as specified in the Loan Documents, would be in
violation of such zoning ordinance or regulation or public restriction, as changed.



Section 6.6 Default Under Leases.



Grantor fails duly to perform its obligations under any Material Lease (as such term is
defined in the Credit Agreement), and such failure is not cured within the grace period, if any,
provided in the Material Lease.



Section 6.7 Default Under Other Lien Documents.



A default occurs under any other Deed of Trust, deed of trust or security agreement covering
the Property, including any Permitted Encumbrances.



Section 6.8 Execution; Attachment.



Any execution or attachment is levied against any of the Property, and such execution or
attachment is not set aside, discharged or stayed within thirty (30) days after the same is levied.



Section 6.9 Default Under Ground Lease; Termination.



The occurrence of (a) a default or event of default (however defined or described) under the
terms and conditions of any Ground Lease if such default is not cured after notice and within any
grace period applicable thereto, or (b) any termination of the Ground Lease without Beneficiary’s
consent.



Article VII

Rights and Remedies.




Upon the happening of any Event of Default, Beneficiary shall have the right, in addition to
any other rights or remedies available to Beneficiary under any of the Loan Documents or applicable
Law, to exercise any one or more of the following rights, powers or remedies:



Section 7.1 Acceleration.



Beneficiary may accelerate all Obligations under the Loan Documents whereupon such Obligations
shall become immediately due and payable, without notice of default, notice of acceleration or
intention to accelerate, presentment or demand for payment, protest, notice of protest, notice of
nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby
waived by Grantor).



Section 7.2 Foreclosure; Judicial Foreclosure.



In the event that any provision in this Deed of Trust shall be inconsistent with any provision
of the State law, the provisions of the State law shall take precedence over the provisions of this
Deed of Trust, but shall not invalidate or render unenforceable any other provision of this Deed of
Trust that can be construed in a manner consistent with applicable law. If any provision of this
Deed of Trust shall grant to Beneficiary any rights or remedies upon an Event of Default which are
more limited than the rights that would otherwise be vested in Beneficiary under the State law in
the absence of said provision, Beneficiary shall be vested with the rights granted by the State
law. Without limiting the generality of the foregoing, all expenses incurred by Beneficiary to the
extent reimbursable under applicable law, whether incurred before or after any decree or judgment
of foreclosure, and whether or not enumerated in this Deed of Trust, shall be added to the
Obligations.



Beneficiary may institute one or more actions of foreclosure on this Deed of Trust or to
institute other proceedings according to law for foreclosure, and prosecute the same to judgment,
execution and sale, for the collection of the Obligations and all costs and expenses of such
proceedings, including reasonable attorneys’ fees and actual attorneys’ expenses.



To the extent permitted by law, Beneficiary has the option of proceeding as to both the Real
Property and the Personalty in accordance with its rights and remedies in respect of the Property,
in which event the default provisions of the UCC will not apply. Beneficiary also has the option
of exercising, in respect of the Property consisting of Personalty, all of the rights and remedies
available to a secured party upon default under the applicable provisions of the UCC in effect in
the jurisdiction where the Real Property is located. In the event Beneficiary elects to proceed
with respect to the Personalty separately from the Real Property, whenever applicable provisions of
the UCC require that notice be reasonable, ten (10) days notice will be deemed reasonable.



Section 7.3 Remedies under the Credit Agreement.



Without limiting the other rights and remedies of Beneficiary set forth in this Deed of Trust,
Beneficiary may exercise any and all rights and remedies of Beneficiary specified in the Credit
Agreement, or at law or equity.



Section 7.4 Possession of Property Not Required.



Upon any sale of any item of the Property made pursuant to judicial proceedings for
foreclosure (“Judicial Sale”), it will not be necessary for any public officer acting under
execution or order of the court (a “Selling Official”) to have any of the Property present
or constructively in his possession.



Section 7.5 Deeds of Trust of Conveyance and Transfer.



Upon the completion of every Judicial Sale, the Selling Official will execute and deliver to
each purchaser a bill of sale or deed of conveyance, as appropriate, for the items of the Property
that are sold. Grantor hereby grants every such Selling Official the power as the attorney-in-fact
of Grantor to execute and deliver in Grantor’s name all deeds, bills of sale and conveyances
necessary to convey and transfer to the purchaser all of Grantor’s rights, title and interest in
the items of Property which are sold. Grantor hereby ratifies and confirms all that such
attorneys-in-fact lawfully do pursuant to such power. Nevertheless, Grantor, if so requested by
the Selling Official or by any purchaser, will ratify any such sale by executing and delivering to
such Selling Official or to such purchaser, as applicable, such deeds, bills of sale or other Deeds
of Trust of conveyance and transfer as may be specified in any such request.



Section 7.6 Recitals.



The recitals contained in any Deed of Trust of conveyance or transfer made by a Selling
Official to any purchaser at any Judicial Sale will, to the extent permitted by law, conclusively
establish the truth and accuracy of the matters stated therein, including the amount of the
Obligations, the occurrence of a an Event of Default, and the advertisement and conduct of such
Judicial Sale in the manner provided herein or under applicable law, and the qualification of the
Selling Official. All prerequisites to such Judicial Sale will be presumed from such recitals to
have been satisfied and performed.



Section 7.7 Divestiture of Title; Bar.



To the extent permitted by applicable law, every Judicial Sale, and every sale made as
contemplated by this Deed of Trust, will operate to divest all rights, title, and interest of
Grantor in and to the items of the Property that are sold, and will be a perpetual bar, both at law
and in equity, against Grantor and Grantor’s heirs, executors, administrators, personal
representatives, successors and assigns, and against everyone else, claiming the item sold either
from, through or under Grantor or Grantor’s heirs, executors, administrators, personal
representatives, successors or assigns.



Section 7.8 Receipt of Purchase Money Sufficient Discharge.



A receipt from any person authorized to receive the purchase money paid at any Judicial Sale,
or other sale contemplated by this Deed of Trust, will be sufficient discharge therefor to the
purchaser. After paying such purchase money and receiving such receipt, neither such purchaser nor
such purchaser’s heirs, executors, administrators, personal representatives, successors or assigns
will have any responsibility or liability respecting the application of such purchase money or any
loss, misapplication or non-application of any of such purchase money, or to inquire as to the
authorization, necessity, expediency or regularity of any such sale.



Section 7.9 Purchase by Beneficiary.



In any Judicial Sale, or other public sale made as contemplated by this Deed of Trust,
Beneficiary may bid for and purchase any of the Property being sold, and will be entitled, upon
presentment of the relevant Loan Documents and documents evidencing the same, to apply the amount
of the Obligations held by it against the purchase price for the items of the Property so
purchased. The amount so applied will be credited against the Obligations in accordance with the
terms of the Credit Agreement.



Section 7.10 Sale of Portion of Property.



The Lien created by this Deed of Trust, as it pertains to any Property that remains unsold,
will not be affected by a Judicial Sale of less than all of the Property.



Section 7.11 Judicial Action.



Beneficiary shall have the right from time to time to sue Grantor for any sums (whether
interest, damages for failure to pay principal or any installments thereof, taxes, or any other
sums required to be paid under the terms of this Deed of Trust, as the same become due), without
regard to whether or not any of the other Obligations shall be due, and without prejudice to the
right of Beneficiary thereafter to enforce any appropriate remedy against Grantor, including an
action of foreclosure or an action for specific performance, for a Default or Event of Default
existing at the time such earlier action was commenced.



Section 7.12 Collection of Rents.



Upon the occurrence of an Event of Default, the license granted to Grantor to collect the
Rents shall be automatically and immediately revoked, without further notice to or demand upon
Grantor. Beneficiary may, but shall not be obligated to, perform any or all obligations of the
landlord under any or all of the Leases, and Beneficiary may, but shall not be obligated to,
exercise and enforce any or all of Grantor’s rights under the Leases. Without limitation to the
generality of the foregoing, Beneficiary may notify the tenants under the Leases that all Rents are
to be paid to Beneficiary, and following such notice all Rents shall be paid directly to
Beneficiary and not to Grantor or any other Person other than as directed by Beneficiary, it being
understood that a demand by Beneficiary on any tenant under the Leases for the payment of Rent
shall be sufficient to warrant payment by such tenant of Rent to Beneficiary without the necessity
of further consent by Grantor. Grantor hereby irrevocably authorizes and directs the tenants under
the Lease to pay all Rents to Beneficiary instead of to Grantor, upon receipt of written notice
from Beneficiary, without the necessity of any inquiry of Grantor and without the necessity of
determining the existence or non-existence of an Event of Default. Grantor hereby appoints
Beneficiary as Grantor’s attorney-in-fact with full power of substitution, which appointment shall
take effect upon the occurrence of an Event of Default and is coupled with an interest and is
irrevocable prior to the full and final payment and performance of the Obligations, in Grantor’s
name or in Beneficiary’s name: (a) to endorse all checks and other Deeds of Trust received in
payment of Rents and to deposit the same in any account selected by Beneficiary; (b) to give
receipts and releases in relation thereto; (c) to institute, prosecute and/or settle actions for
the recovery of Rents; (d) to modify the terms of any Leases including terms relating to the Rents
payable thereunder; (e) to cancel any Leases; (f) to enter into new Leases; and (g) to do all other
acts and things with respect to the Leases and Rents which Beneficiary may deem necessary or
desirable to protect the security for the Obligations. Any Rents received shall be applied first
to pay all Expenses and next in reduction of the other Obligations. Grantor shall pay, on demand,
to Beneficiary, the amount of any deficiency between (i) the Rents received by Beneficiary, and
(ii) all Expenses incurred together with interest thereon as provided in the Credit Agreement and
the other Loan Documents.



Section 7.13 Receiver.



Upon, or at any time prior or after, the filing of any complaint to foreclose the lien of this
Deed of Trust or instituting any other foreclosure of the liens and security interests provided for
in this Deed of Trust or any other legal proceedings under this Deed of Trust, Beneficiary may, at
Beneficiary’s sole option, make application to a court of competent jurisdiction for appointment of
a receiver pursuant to applicable law for all or any part of the Property, as a matter of strict
right and without notice to Grantor, and Grantor does hereby irrevocably consent to such
appointment, waives any and all notices of and defenses to such appointment and agrees not to
oppose any application therefor by Beneficiary, but nothing herein is construed to deprive
Beneficiary of any other right, remedy or privilege Beneficiary may now have under the law to have
a receiver appointed; provided that the appointment of such receiver, trustee or other appointee by
virtue of any court order, statute or regulation shall not impair or in any manner prejudice the
rights of Beneficiary to receive payment of all of the rents, issues, deposits and profits pursuant
to other terms and provisions set forth in this Deed of Trust. Such appointment may be made either
before or after sale, without notice; without regard to the solvency or insolvency, at the time of
application for such receiver, of the person or persons, if any, liable for the payment of the
Obligations; without regard to the value of the Property at such time and whether or not the same
is then occupied as a homestead; without bond being required of the applicant; and Beneficiary
hereunder or any employee or agent thereof may be appointed as such receiver. Such receiver shall
have all powers and duties prescribed by applicable law, including the power to take possession,
control and care of the Property and to collect all rents, issues, deposits, profits and avails
thereof during the pendency of such foreclosure suit and apply all funds received toward the
Obligations, and in the event of a sale and a deficiency where Grantor has not waived its statutory
rights of redemption, during the full statutory period of redemption, as well as during any further
times when Grantor or its administrators, legal representatives, successors or assigns, except for
the intervention of such receiver, would be entitled to collect such rents, issues, deposits,
profits and avails, and shall have all other powers that may be necessary or useful in such cases
for the protection, possession, control, management and operation of the Property during the whole
of any such period. To the extent permitted by law, such receiver may extend or modify any then
existing Leases and make new leases of the Property or any part thereof, which extensions,
modifications and new leases may provide for terms to expire, or for options to lessees to extend
or renew terms to expire, beyond the maturity date of the Loan, it being understood and agreed that
any such leases, and the options or other such provisions to be contained therein, shall be binding
upon Grantor and all persons whose interests in the Property are subject to the lien hereof, and
upon the purchaser or purchasers at any such foreclosure sale, notwithstanding any redemption from
sale, discharge of indebtedness, satisfaction of foreclosure decree or issuance of certificate of
sale or deed to any purchaser.



Section 7.14 Taking Possession or Control of the Property.



To the extent permitted by Law, and with or without the appointment of a receiver, or an
application therefor, Beneficiary may (a) enter upon, and take possession of (and Grantor shall
surrender actual possession of), the Property or any part thereof, without notice to Grantor and
without bringing any legal action or proceeding, or, if necessary by force, legal proceedings,
ejectment or otherwise, and (b) remove and exclude Grantor and its agents and employees therefrom.



Section 7.15 Management of the Property.



Upon obtaining possession of the Property or upon the appointment of a receiver as described
in Section 7.13, Beneficiary or the receiver, as the case may be, may, at its sole option,
(a) make all necessary or proper repairs and Additions to or upon the Property, (b) operate,
maintain, control, make secure and preserve the Property, and (c) complete the construction of any
unfinished Improvements on the Property and, in connection therewith, continue any and all
outstanding contracts for the erection and completion of such Improvements and make and enter into
any further contracts which may be necessary, either in their or its own name or in the name of
Grantor (the costs of completing such Improvements shall be Expenses secured by this Deed of Trust
and shall accrue interest as provided in the Credit Agreement and the other Loan Documents).
Beneficiary or such receiver shall be under no liability for, or by reason of, any such taking of
possession, entry, holding, removal, maintaining, operation or management, except for gross
negligence or willful misconduct. The exercise of the remedies provided in this Section shall not
cure or waive any Event of Default, and the enforcement of such remedies, once commenced, shall
continue for so long as Beneficiary shall elect, notwithstanding the fact that the exercise of such
remedies may have, for a time, cured the original Event of Default.



Section 7.16 Uniform Commercial Code.



Beneficiary may proceed under the Uniform Commercial Code as to all or any part of the
Personalty, and in conjunction therewith may exercise all of the rights, remedies and powers of a
secured creditor under the Uniform Commercial Code. Upon the occurrence of any Event of Default,
Grantor shall assemble all of the Accessories and make the same available within the Improvements.
Any notification required by the Uniform Commercial Code shall be deemed reasonably and properly
given if sent in accordance with the Notice provisions of this Deed of Trust at least ten (10) days
before any sale or other disposition of the Personalty. Disposition of the Personalty shall be
deemed commercially reasonable if made pursuant to a public sale advertised at least twice in a
newspaper of general circulation in the community where the Property is located. It shall be
deemed commercially reasonable for the Beneficiary to dispose of the Personalty without giving any
warranties as to the Personalty and specifically disclaiming all disposition warranties.



Section 7.17 Application of Proceeds.



Unless otherwise provided by applicable Law, all proceeds from the sale of the Property or any
part thereof pursuant to the rights and remedies set forth in this Article VII and any
other proceeds received by Beneficiary from the exercise of any of its other rights and remedies
hereunder or under the other Loan Documents shall be applied first to pay all Expenses and next in
reduction of the other Obligations, in such manner and order as Beneficiary may elect.



Section 7.18 Other Remedies.



Beneficiary shall have the right from time to time to protect, exercise and enforce any legal
or equitable remedy against Grantor provided under the Loan Documents or by applicable Laws.



Article VIII

[Reserved].

Article IX

Miscellaneous.




Section 9.1 Scope of Deed of Trust.



This Deed of Trust is a deed of trust and mortgage of both real and personal property, a
security agreement, an assignment of rents and leases, a financing statement and fixture filing and
a collateral assignment, and also covers proceeds and fixtures.



Section 9.2 Notice to Account Debtors.



In addition to the rights granted elsewhere in this Deed of Trust, Beneficiary may at any time
notify the account debtors or obligors of any accounts, chattel paper, general intangibles,
negotiable instruments or other evidences of indebtedness included in the Collateral to pay
Beneficiary directly.



Section 9.3 Rights, Powers and Remedies Cumulative.



Each right, power and remedy of Beneficiary as provided for in this Deed of Trust, or in any
of the other Loan Documents or now or hereafter existing by Law, shall be cumulative and concurrent
and shall be in addition to every other right, power or remedy provided for in this Deed of Trust,
or in any of the other Loan Documents or now or hereafter existing by Law, and the exercise or
beginning of the exercise by Beneficiary of any one or more of such rights, powers or remedies
shall not preclude the simultaneous or later exercise by Beneficiary of any or all such other
rights, powers or remedies.



Section 9.4 No Waiver by Beneficiary.



No course of dealing or conduct by or among Beneficiary or any Lender and Grantor shall be
effective to amend, modify or change any provisions of this Deed of Trust or the other Loan
Documents. No failure or delay by Beneficiary to insist upon the strict performance of any term,
covenant or agreement of this Deed of Trust or of any of the other Loan Documents, or to exercise
any right, power or remedy consequent upon a breach thereof, shall constitute a waiver of any such
term, covenant or agreement or of any such breach, or preclude Beneficiary from exercising any such
right, power or remedy at any later time or times. By accepting payment after the due date of any
of the Obligations, Beneficiary shall not be deemed to waive the right either to require prompt
payment when due of all other Obligations, or to declare an Event of Default for failure to make
prompt payment of any such other Obligations. Neither Borrower nor any other Person now or
hereafter obligated for the payment of the whole or any part of the Obligations shall be relieved
of such liability by reason of (a) the failure of Beneficiary to comply with any request of Grantor
or of any other Person to take action to foreclose this Deed of Trust or otherwise enforce any of
the provisions of this Deed of Trust, or (b) any agreement or stipulation between any subsequent
owner or owners of the Property and Beneficiary, or (c) Beneficiary’s extending the time of payment
or modifying the terms of this Deed of Trust or any of the other Loan Documents without first
having obtained the consent of Grantor, Borrower or such other Person. Regardless of
consideration, and without the necessity for any notice to or consent by the holder of any
subordinate Lien on the Property, Beneficiary may release any Person at any time liable for any of
the Obligations or any part of the security for the Obligations and may extend the time of payment
or otherwise modify the terms of this Deed of Trust or any of the other Loan Documents without in
any way impairing or affecting the Lien of this Deed of Trust or the priority of this Deed of Trust
over any subordinate Lien. The holder of any subordinate Lien shall have no right to terminate any
Lease regardless of whether or not such Lease is subordinate to this Deed of Trust. Beneficiary
may resort to the security or collateral described in this Deed of Trust or any of the other Loan
Documents in such order and manner as Beneficiary may elect in its sole discretion.



Section 9.5 Waivers and Agreements Regarding Remedies.



To the full extent Grantor may do so, Grantor hereby:



(a) to the full extent permitted by law, hereby voluntarily and knowingly waives its rights to
reinstatement and redemption, and to the full extent permitted by law, waives the benefits of all
present and future valuation, appraisement, homestead, exemption, stay, extension or redemption,
right to notice of election to accelerate the Obligations, and moratorium laws under any state or
federal law;



(b) waives all rights to a marshaling of the assets of Grantor or Borrower, including the
Property, or to a sale in the inverse order of alienation in the event of a foreclosure of the
Property, and agrees not to assert any right under any Law pertaining to the marshaling of assets,
the sale in inverse order of alienation, the exemption of homestead, the administration of estates
of decedents, or other matters whatsoever to defeat, reduce or affect the right of Beneficiary
under the terms of this Deed of Trust to a sale of the Property without any prior or different
resort for collection, or the right of Beneficiary to the payment of the Obligations out of the
proceeds of sale of the Property in preference to every other claimant whatsoever;



(c) waives any right to bring or utilize any defense, counterclaim or setoff, other than one
which denies the existence or sufficiency of the facts upon which any foreclosure action is
grounded. If any defense, counterclaim or setoff, other than one permitted by the preceding
clause, is timely raised in a foreclosure action, such defense, counterclaim or setoff shall be
dismissed. If such defense, counterclaim or setoff is based on a Claim which could be tried in an
action for money damages, such Claim may be brought in a separate action which shall not thereafter
be consolidated with the foreclosure action. The bringing of such separate action for money
damages shall not be deemed to afford any grounds for staying the foreclosure action; and



(d) waives and relinquishes any and all rights and remedies which Grantor or any Borrower may
have or be able to assert by reason of the provisions of any Laws pertaining to the rights and
remedies of sureties.



Section 9.6 Successors and Assigns.



All of the grants, covenants, terms, provisions and conditions of this Deed of Trust shall run
with the Land and shall apply to and bind the representatives, successors and assigns of Grantor
(including any permitted subsequent owner of the Property), and inure to the benefit of
Beneficiary, on behalf of Lenders, and their respective successors and assigns.



Section 9.7 No Warranty by Beneficiary.



By inspecting the Property or by accepting or approving anything required to be observed,
performed or fulfilled by Grantor or to be given to Beneficiary pursuant to this Deed of Trust or
any of the other Loan Documents, Beneficiary shall not be deemed to have warranted or represented
the condition, sufficiency, legality, effectiveness or legal effect of the same, and such
acceptance or approval shall not constitute any warranty or representation with respect thereto by
Beneficiary.



Section 9.8 Amendments.



This Deed of Trust may not be modified or amended except by an agreement in writing, signed by
the party against whom enforcement of the change is sought.



Section 9.9 Severability.



In the event any one or more of the provisions of this Deed of Trust or any of the other Loan
Documents shall for any reason be held to be invalid, illegal or unenforceable, in whole or in part
or in any other respect, or in the event any one or more of the provisions of the Loan Documents
operates or would prospectively operate to invalidate this Deed of Trust or any of the other Loan
Documents, then and in either of those events, at the option of Beneficiary, such provision or
provisions only shall be deemed null and void and shall not affect the validity of the remaining
Obligations, and the remaining provisions of the Loan Documents shall remain operative and in full
force and effect and shall in no way be affected, prejudiced or disturbed thereby.



Section 9.10 Notices.



All Notices required or which any party desires to give hereunder or under any other Loan
Document shall be in writing and, unless otherwise specifically provided in such other Loan
Document, shall be deemed sufficiently given or furnished if delivered by personal delivery, by
nationally recognized overnight courier service or by certified United States mail, postage
prepaid, addressed to the party to whom directed at the applicable address specified in the
Preamble to this Deed of Trust (unless changed by similar notice in writing given by the particular
party whose address is to be changed) or by facsimile. Any Notice shall be deemed to have been
given either at the time of personal delivery or, in the case of courier or mail, as of the date of
first attempted delivery at the address and in the manner provided herein, or, in the case of
facsimile, upon receipt; provided that service of a notice required by Texas Property Code Section
51.002, as amended, shall be considered complete when the requirements of that statute are met.
Notwithstanding the foregoing, no notice of change of address shall be effective except upon actual
receipt. This Section shall not be construed in any way to affect or impair any waiver of notice
or demand provided in this Deed of Trust or in any other Loan Document or to require giving of
notice or demand to or upon any Person in any situation or for any reason.



Section 9.11 Joint and Several Liability.



If Grantor consists of two (2) or more Persons, the term “Grantor” shall also refer to all
Persons signing this Deed of Trust as Grantor, and to each of them, and all of them are jointly and
severally bound, obligated and liable hereunder. Beneficiary may release, compromise, modify or
settle with any of Grantor, in whole or in part, without impairing, lessening or affecting the
obligations and liabilities of the others of Grantor hereunder or under the Note. Any of the acts
mentioned aforesaid may be done without the approval or consent of, or notice to, any of Grantor or
any Borrower.



Section 9.12 Rules of Construction.



The words “hereof”, “herein”, “hereunder”, “hereto” and other words of similar import refer to
this Deed of Trust in its entirety. The terms “agree” and “agreements” mean and include “covenant”
and “covenants”. The words “include” and “including” shall be interpreted as if followed by the
words “without limitation”. The headings of this Deed of Trust are for convenience of reference
only and shall not be considered a part hereof and are not in any way intended to define, limit or
enlarge the terms hereof. All references (a) made in the neuter, masculine or feminine gender
shall be deemed to have been made in all such genders, (b) made in the singular or plural number
shall be deemed to have been made, respectively, in the plural or singular number as well, (c) to
the Loan Documents are to the same as extended, amended, restated, supplemented or otherwise
modified from time to time unless expressly indicated otherwise, (d) to the Land, Improvements,
Personalty, Real Property or Property shall mean all or any portion of each of the foregoing,
respectively, and (e) to Articles or Sections are to the respective Articles or Sections contained
in this Deed of Trust unless expressly indicated otherwise. Any term used or defined in the
Uniform Commercial Code of the State, as in effect from time to time, which is not defined in this
Deed of Trust shall have the meaning ascribed to that term in the Uniform Commercial Code of the
State. If a term is defined in Article 9 of the Uniform Commercial Code of the State differently
than in another Article of the Uniform Commercial Code of the State, the term shall have the
meaning specified in Article 9.




	 	 	Section 9.13 Governing Law; Litigation.





THIS DEED OF TRUST SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS (WITHOUT GIVING
EFFECT TO ILLINOIS CHOICE OF LAW PRINCIPLES), EXCEPT WITH RESPECT TO (I) WHETHER A TRANSACTION
TRANSFERS OR CREATES AN INTEREST IN REAL PROPERTY FOR SECURITY PURPOSES OR OTHERWISE, (II) THE
NATURE OF AN INTEREST IN REAL PROPERTY THAT IS TRANSFERRED OR CREATED BY A TRANSACTION, (III) THE
METHOD FOR FORECLOSURE OF A LIEN ON REAL PROPERTY, (IV) THE NATURE OF AN INTEREST IN REAL PROPERTY
THAT RESULTS FROM FORECLOSURE, (V) THE MANNER AND EFFECT OF RECORDING OR FAILING TO RECORD EVIDENCE
OF A TRANSACTION THAT TRANSFERS OR CREATES AN INTEREST IN REAL PROPERTY, AND (VI) THE ENFORCEMENT
HEREOF AGAINST THE PROPERTY IN THE STATE OF TEXAS, IN WHICH CASE OR CASES SUCH MATTER(S) SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO TEXAS CHOICE OF LAW
PRINCIPLES). TO THE EXTENT THAT THIS DEED OF TRUST MAY OPERATE AS A SECURITY AGREEMENT UNDER THE
UNIFORM COMMERCIAL CODE OF THE STATE OF TEXAS, BENEFICIARY SHALL HAVE ALL RIGHTS AND REMEDIES
CONFERRED THEREIN FOR THE BENEFIT OF A SECURED PARTY, AS SUCH TERM IS DEFINED THEREIN, THE
ENFORCEMENT OF WHICH SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO
TEXAS CHOICE OF LAW PRINCIPLES).



TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRANTOR HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING IN CONNECTION WITH THIS DEED OF TRUST SHALL BE TRIED AND DETERMINED ONLY IN THE STATE AND
FEDERAL COURT LOCATED IN THE COUNTY OF COOK, STATE OF ILLINOIS OR, AT THE SOLE OPTION OF
BENEFICIARY, IN ANY OTHER COURT IN WHICH BENEFICIARY SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS
AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY, EXCEPT THAT ANY ACTION TO
FORECLOSE THIS DEED OF TRUST, TO OBTAIN POSSESSION OF THE PROPERTY, TO HAVE A RECEIVER APPOINTED
FOR THE PROPERTY OR TO ENFORCE ANY OTHER REMEDY HEREIN AFFECTING THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO, INJUNCTIVE RELIEF, SHALL BE BROUGHT ONLY IN THE COUNTY OF POLK, STATE OF TEXAS. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, GRANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO ASSERT
THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS
BROUGHT IN ACCORDANCE WITH THIS SECTION. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRANTOR HEREBY
WAIVES PERSONAL SERVICE OF PROCESS UPON GRANTOR, AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE
MADE BY REGISTERED MAIL DIRECTED TO GRANTOR AT THE ADDRESS STATED IN THIS DEED OF TRUST AND SERVICE
SO MADE WILL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT.



Section 9.14 Use of Proceeds.



Grantor represents and warrants to Beneficiary (a) that the proceeds of the Note secured by
this Deed of Trust will be used for the purposes specified in the Loan Documents, and that the
Obligations constitute a business loan, and (b) that the Loan evidenced by the Note is an exempted
transaction under the Truth In Lending Act, 15 U.S.C. §1601 et seq.



Section 9.15 Cross-Default/Cross-Collateralization.



This Deed of Trust shall be cross-defaulted and cross-collateralized with all
“Mortgages” (as such term is defined in the Credit Agreement) delivered during the term of the
Loan, whether existing as of the date of this Deed of Trust or subsequently made. A default not
cured within any applicable grace or cure period under any of the other Mortgage shall constitute
an Event of Default under this Deed of Trust. An Event of Default under this Deed of Trust shall
constitute an Event of Default under all of the other Mortgages. To the extent not prohibited by
applicable law, if Beneficiary, at its option, avails itself of this
cross-collateralization/cross-default provision, Beneficiary shall have the option to pursue its
remedies in any combinations and against any or all of Beneficiary’s security for the Loan, whether
successively, concurrently or otherwise. Grantor acknowledges that Beneficiary is unwilling to
make the Loan unless Grantor agrees that this Deed of Trust and the other Mortgages are
cross-collateralized and cross-defaulted and therefore, since it is in the best interest of Grantor
that Beneficiary make the Loan, Grantor has agreed to cross-collateralize and cross-default this
Deed of Trust and the other Mortgages as set forth hereinabove.



Section 9.16 Other Amounts Secured; Maximum Indebtedness.



Grantor acknowledges and agrees that this Deed of Trust secures the entire principal amount of
the Note and interest accrued thereon, regardless of whether any or all of the Loan proceeds are
disbursed on or after the date hereof, and regardless of whether the outstanding principal is
repaid in whole or part or are future advances made at a later date, any and all litigation and
other expenses and any other amounts as provided herein or in any of the other Loan Documents,
including, without limitation, the payment of any and all loan commissions, service charges,
liquidated damages, expenses and advances due to or paid or incurred by Beneficiary in connection
with the Loan, all in accordance with the Loan commitment issued in connection with this
transaction and the Loan Documents. Under no circumstances, however, shall the total indebtedness
secured hereby exceed Fifty Million and No/100 Dollars ($50,000,000.00). It is agreed that any
future advances made by Beneficiary for the benefit of Grantor from time to time under this Deed of
Trust or the other Loan Documents and whether or not such advances are obligatory or are made at
the option of Beneficiary, made at any time from and after the date of this Deed of Trust, and all
interest accruing thereon, shall be equally secured by this Deed of Trust and shall have the same
priority as all amounts, if any, advanced as of the date hereof and shall be subject to all of the
terms and provisions of this Deed of Trust. This Deed of Trust shall be valid and have priority to
the extent of the full amount of the indebtedness secured hereby over all subsequent liens and
encumbrances, including statutory liens, excepting solely taxes and assessments levied on the
Property given priority by law.



Section 9.17 Adjustable Deed of Trust Loan Provision.



The Note which this Deed of Trust secures is an adjustable note on which the interest rate may
be adjusted from time to time in accordance with the terms and provisions set forth in the Credit
Agreement.



	 	 	 
	Section 9.18

	 	[Intentionally omitted.]
	
 
	 	 
	Section 9.19

	 	Deed in Trust.
	
 
	 	 






If title to the Property or any part thereof is now or hereafter becomes vested in a trustee,
any prohibition or restriction contained herein against the creation of any lien on the Property
shall be construed as a similar prohibition or restriction against the creation of any lien on or
security interest in the beneficial interest of such trust.



Section 9.20 Collateral Protection.



Unless Grantor provides Beneficiary with evidence of the insurance required by this Deed of
Trust or any other Loan Document, Beneficiary may purchase insurance at Grantor’s expense to
protect Beneficiary’s interest in the Property or any other collateral for the Obligations. This
insurance may, but need not, protect Grantor’s interests. The coverage Beneficiary purchases may
not pay any claim that Grantor makes or any claim that is made against Grantor in connection with
the Property or any other collateral for the Obligations. Grantor may later cancel any insurance
purchased by Beneficiary, but only after providing Beneficiary with evidence that Grantor has
obtained insurance as required under this Deed of Trust or any other Loan Document. If Beneficiary
purchases insurance for the Property or any other collateral for the Obligations, Grantor shall be
responsible for the costs of that insurance, including interest in any other charges that
Beneficiary may lawfully impose in connection with the placement of the insurance, until the
effective date of the cancellation or expiration of the insurance. The costs of the insurance may
be added to the Obligations. The costs of the insurance may be more than the cost of insurance
that Grantor may be able to obtain on its own.



Section 9.21 State Specific Provisions/Rights and Remedies.



In addition to those rights and remedies described in Article VII, the following
provisions are added. In the event of any conflict between Section 9.21 through and including
Section 9.30 and any other provisions of this Deed of Trust, the provisions of Section 9.21
through and including Section 9.30 shall control:



(a) Right to Accelerate. Beneficiary may, without notice, demand, presentment, notice
of nonpayment or nonperformance, protest, notice of protest, notice of intent to accelerate, notice
of acceleration, or any other notice or any other action, all of which are hereby waived (except as
required under the other Loan Documents) by Grantor and all other parties obligated in any manner
whatsoever on the Obligations, declare the entire unpaid balance of the Obligations immediately due
and payable, and upon such declaration, the entire unpaid balance of the Obligations shall be
immediately due and payable. The failure to exercise any remedy available to Beneficiary shall not
be deemed to be a waiver of any rights or remedies of Beneficiary under the Loan Documents, at law
or in equity.



(b) Right to Perform Grantor’s Covenants. If Grantor has failed to keep or perform
any covenant whatsoever contained in this Deed of Trust or the other Loan Documents, Beneficiary,
may, but shall not be obligated to any person to do so, perform or attempt to perform said
covenant, and any payment made or expense incurred in the performance or attempted performance of
any such covenant shall be and become a part of the Obligations, and Grantor promises, upon demand,
to pay to Beneficiary at the place where the Note is payable, all sums so advanced or paid by
Beneficiary, with interest from the date when paid or incurred by Beneficiary at the rate of
interest then applicable on the outstanding principal balance of the Note. No such payment by
Beneficiary shall constitute a waiver of any Event of Default. In addition to the liens and
security interests hereof, Beneficiary shall be subrogated to all rights, titles, liens and
security interests securing the payment of any debt, claim, tax or assessment for the payment of
which Beneficiary may make an advance, or which Beneficiary may pay.



(c) Right of Entry. Beneficiary is authorized, prior or subsequent to the institution
of any foreclosure proceedings, enter upon the Property, or any part thereof, and take exclusive
possession of the Property and the Collateral and of all books, records and accounts relating
thereto and to exercise without interference from Grantor any and all rights which Grantor has with
respect to the management, possession, operation, protection or preservation of the Property and
the Collateral, including without limitation the right to rent the same for the account of Grantor
and to deduct from such Rents all costs, expenses and liabilities of every character incurred by
Beneficiary in collecting such Rents and in managing, operating, maintaining, protecting, or
preserving the Property and the Collateral and to apply the remainder of such Rents on the
Obligations in such manner as Beneficiary may elect. All such costs, expenses and liabilities
incurred by Beneficiary in collecting such Rents and in managing, operating, maintaining,
protecting or preserving the Property and the Collateral, if not paid out of Rents as hereinabove
provided, shall constitute a demand obligation owing by Grantor and shall bear interest from the
date of expenditure until paid at the rate of interest then applicable on the outstanding principal
balance of the Note, all of which shall constitute a portion of the Obligations. If necessary to
obtain the possession provided for above, Beneficiary may invoke any and all legal remedies to
dispossess Grantor, including specifically one or more actions for forcible entry and detainer,
trespass to try title and restitution. In connection with any action taken by Beneficiary pursuant
to this subsection (c), Beneficiary shall not be liable for any loss sustained by Grantor
resulting from any failure to let the Property, or any part thereof, or from any other act or
omission of Beneficiary in managing the Property unless such loss is caused by the gross negligence
or willful misconduct (but not the negligence) of Beneficiary, nor shall Beneficiary be obligated
to perform or discharge any obligation, duty or liability under any Lease or the Ground Lease or
under or by reason hereof or the exercise of rights or remedies hereunder. GRANTOR SHALL AND DOES
HEREBY AGREE TO INDEMNIFY BENEFICIARY FOR, AND TO HOLD HARMLESS BENEFICIARY FROM, ANY AND ALL
LIABILITY, LOSS OR DAMAGE, WHICH MAY OR MIGHT BE INCURRED BY BENEFICIARY UNDER ANY SUCH LEASE OR
THE GROUND LEASE OR UNDER OR BY REASON HEREOF OR THE EXERCISE OF RIGHTS OR REMEDIES HEREUNDER, AND,
WITH THE EXCEPTION OF BENEFICIARY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (BUT NOT THE
NEGLIGENCE), FROM ANY AND ALL CLAIMS AND DEMANDS WHATSOEVER WHICH MAY BE ASSERTED AGAINST
BENEFICIARY BY REASON OF ANY ALLEGED OBLIGATIONS OR UNDERTAKINGS ON ITS PART TO PERFORM OR
DISCHARGE ANY OF THE TERMS, COVENANTS OR AGREEMENTS CONTAINED IN ANY SUCH LEASE OR THE GROUND
LEASE. Should Beneficiary incur any such liability, the reasonable amount thereof, including
without limitation costs, expenses and reasonable attorneys’ fees, together with interest thereon
from the date of expenditure until paid at the rate of interest then applicable on the outstanding
principal balance of the Note, shall be secured hereby, and Grantor shall reimburse Beneficiary
therefor immediately upon demand. Nothing in this subsection shall impose any duty, obligation or
responsibility upon Beneficiary for the control, care, management, leasing or repair of the
Property and the Collateral, nor for the carrying out of any of the terms and conditions of any
such Lease or the Ground Lease; nor shall it operate to make Beneficiary responsible or liable for
any waste committed on the Property and the Collateral by the tenants or by any other parties, or
for any Hazardous Materials on or under the Property or the Collateral, or for any dangerous or
defective condition of the Property or the Collateral or for any negligence in the management,
leasing, upkeep, repair or control of the Property or the Collateral resulting in loss or injury or
death to any tenant, licensee, employee or stranger, other than Beneficiary’s gross negligence or
willful misconduct (but not its negligence). Grantor hereby assents to, ratifies and confirms any
and all actions of Beneficiary with respect to the Property and the Collateral taken under this
subsection (c). For purposes of this subsection, “Beneficiary” shall include Beneficiary
and Lenders, and their respective officers, directors, shareholders, partners, employees and
agents, and any persons or entities owned or controlled by, owning or controlling, or under control
of or an affiliate of Beneficiary or any Lender.



The remedies in this subsection are in addition to other remedies available to Beneficiary, and the
exercise of the remedies in this subsection shall not be deemed to be an election of nonjudicial or
judicial remedies otherwise available to Beneficiary. The remedies in this Section 9.21
are available under and governed by the real property laws of Texas and are not governed by the
personal property laws of Texas, including but not limited to, the power to dispose of personal
property in a commercially reasonable manner under Section 9.610 of the UCC. No action by
Beneficiary taken pursuant to this subsection, shall be deemed to be an election to dispose of
personal property under Section 9.621 of the UCC. Any receipt of consideration received by
Beneficiary pursuant to this Section 9.21 shall be immediately credited against the
Obligations (in the inverse order of maturity) and the value of said consideration shall be treated
like any other payment against the Obligations.



(d) Foreclosure-Power of Sale. Beneficiary may request Trustee to proceed with
foreclosure under the power of sale which is hereby conferred, such foreclosure to be accomplished
in accordance with the following provisions:




(i) Public Sale. Trustee is hereby authorized and empowered, and it shall be
Trustee’s special duty, upon such request of Beneficiary, to sell the Property and the
Collateral, or any part thereof, at public auction to the highest bidder for cash, with or
without having taken possession of same. Any such sale (including notice thereof) shall
comply with the applicable requirements, at the time of the sale, of Section 51.002 of the
Texas Property Code or, if and to the extent such statute is not then in force, with the
applicable requirements, at the time of the sale, of the successor statute or statutes, if
any, governing sales of Texas real property under powers of sale conferred by deeds of
trust. If there is no statute in force at the time of the sale governing sales of Texas
real property under powers of sale conferred by deeds of trust, such sale shall comply with
applicable law, at the time of the sale, governing sales of Texas real property under powers
of sale conferred by deeds of trust.




(ii) Right to Require Proof of Financial Ability and/or Cash Bid. At any time
during the bidding, Trustee may require a bidding party (A) to disclose its full name, state
and city of residence, occupation and specific business office location, and the name and
address of the principal the bidding party is representing (if applicable), and (B) to
demonstrate reasonable evidence of the bidding party’s financial ability (or, if applicable,
the financial ability of the principal of such bidding party), as a condition to the bidding
party submitting bids at the foreclosure sale. If any such bidding party (the
“Questioned Bidder”) declines to comply with Trustee’s requirement in this regard,
or if such Questioned Bidder does respond but Trustee, in Trustee’s sole and absolute
discretion, deems the information or the evidence of the financial ability of the Questioned
Bidder (or, if applicable, the principal of such bidding party) to be inadequate, then
Trustee may continue the bidding with reservation; and in such event (1) Trustee shall be
authorized to caution the Questioned Bidder concerning the legal obligations to be incurred
in submitting bids, and (2) if the Questioned Bidder is not the highest bidder at the sale,
or if having been the highest bidder the Questioned Bidder fails to deliver the cash
purchase price payment promptly to Trustee, all bids by the Questioned Bidder shall be null
and void. Trustee may, in Trustee’s sole and absolute discretion, determine that a credit
bid may be in the best interest of Grantor, Beneficiary and Lenders, and elect to sell the
Property and/or the Collateral for credit or for a combination of cash and credit; provided,
however, that Trustee shall have no obligation to accept any bid except an all cash bid. In
the event Trustee requires a cash bid and cash is not delivered within a reasonable time
after conclusion of the bidding process, as specified by Trustee, but in no event later than
3:45 p.m. local time on the day of sale, then said contingent sale shall be null and void,
the bidding process may be recommenced, and any subsequent bids or sale shall be made as if
no prior bids were made or accepted.




(iii) Sale Subject to Unmatured Indebtedness. In addition to the rights and
powers of sale granted under the preceding provisions of this subsection, if an Event of
Default is made in the payment of any portion of the Obligations, Beneficiary, may, at
Beneficiary’s option, at once or at any time thereafter while any matured portion remains
unpaid, without declaring the entire Obligations to be due and payable, orally or in writing
direct Trustee to enforce this trust and to sell the Property and the Collateral subject to
such unmatured Obligations and to the rights, powers, liens, security interests and
assignments securing or providing recourse for payment of such unmatured Obligations, in the
same manner, all as provided in the preceding provisions of this subsection. Sales made
without maturing the Obligations may be made hereunder whenever there is an Event of Default
in the payment of any portion of the Obligations, without exhausting the power of sale
granted hereby, and without affecting in any way the power of sale granted under this
subsection, the unmatured balance of the Obligations or the rights, powers, liens, security
interests, and assignments securing or providing recourse for payment of the Obligations.




(iv) Partial Foreclosure. Sale of a part of the Property or Collateral shall
not exhaust the power of sale, but sales may be made from time to time until the Obligations
are paid, performed and discharged in full. It is intended by each of the foregoing
provisions of this subsection that Trustee may, after any request or direction by
Beneficiary, sell not only the Property, but also the Collateral and other interests
constituting security for the Loan under the Loan Documents, or any part thereof, along with
the Property and the Collateral or any part thereof, as a unit and as a part of a single
sale, or may sell at any time or from time to time any part or parts of the Property and the
Collateral separately from the remainder of the Property and the Collateral. It shall not
be necessary to have present or to exhibit at any sale any of the Property and the
Collateral.




(v) Trustee’s Deeds. After any sale under this subsection, Trustee shall make
good and sufficient deeds, assignments and other conveyances to the purchaser or purchasers
thereunder in the name of Grantor, conveying the Property and the Collateral or any part
thereof so sold to the purchaser or purchasers with general warranty of title by Grantor.
It is agreed that in any deeds, assignments or other conveyances given by Trustee, any and
all statements of fact or other recitals therein made as to the identity of Beneficiary or
Lenders, the occurrence or existence of any Default or Event of Default, the notice of
intention to accelerate, or acceleration of, the maturity of the Obligations, the request to
sell, notice of sale, time, place, terms and manner of sale, and receipt, distribution and
application of the money realized therefrom, the due and proper appointment of a substitute
trustee, and without being limited by the foregoing, any other act or thing having been duly
done by or on behalf of Beneficiary or by or on behalf of Trustee, shall be taken by all
courts of law and equity as prima facie evidence that such statements or recitals state
true, correct, and complete facts and are without further question to be so accepted, and
Grantor does hereby ratify and confirm any and all acts that Trustee may lawfully do in the
premises by virtue hereof.



(e) Beneficiary’s Judicial Remedies. Beneficiary, or Trustee upon written request of
Beneficiary, may proceed by suit or suits, at law or in equity, to enforce the payment, performance
and discharge of the Obligations in accordance with the terms hereof, of the Note and the other
Loan Documents, to foreclose the liens and security interests of this Deed of Trust as against all
or any part of the Property and the Collateral, and to have all or any part of the Property and the
Collateral sold under the judgment or decree of a court of competent jurisdiction. This remedy
shall be cumulative of any other nonjudicial remedies available to Beneficiary with respect to the
Loan Documents. Proceeding with a request or receiving a judgment for legal relief shall not be or
be deemed to be an election of remedies or bar any available nonjudicial remedy of Beneficiary.



(f) Beneficiary’s Right to Appointment of Receiver. Beneficiary, as a matter of right
and without regard to the sufficiency of the security for payment, performance and discharge of the
Obligations, without notice to Grantor and without any showing of insolvency, fraud or
mismanagement on the part of Grantor, and without the necessity of filing any judicial or other
proceeding other than the proceeding for appointment of a receiver, shall be entitled to the
appointment of a receiver or receivers of the Property and the Collateral or any part thereof, and
of the Rents, and Grantor hereby irrevocably consents to the appointment of a receiver or
receivers. Any receiver appointed pursuant to the provisions of this subsection shall have the
usual powers and duties of receivers in such matters.



(g) Beneficiary’s UCC Remedies. Beneficiary may exercise its rights of enforcement
with respect to the Collateral under the UCC, and in conjunction with, in addition to or in
substitution for the rights and remedies under the UCC Beneficiary may, and Grantor agrees, as
follows: (i) without demand or notice to Grantor, enter upon the Property to take possession of,
assemble, receive and collect the Collateral, or any part thereof, or to render it unusable; (ii)
require Grantor to assemble the Collateral and make it available at a place Beneficiary designates
which is mutually convenient to allow Beneficiary to take possession or dispose of the Collateral;
(iii) written Notice mailed to Grantor as provided herein at least ten (10) days prior to the date
of public sale of the Collateral or prior to the date after which private sale of the Collateral
will be made shall constitute reasonable notice; (iv) any sale made pursuant to the provisions of
this subsection shall be deemed to have been a public sale conducted in a commercially reasonable
manner if held contemporaneously with the sale of the Property under power of sale as provided
herein upon giving the same notice with respect to the sale of the Collateral hereunder as is
required for such sale of the Property under power of sale, and such sale shall be deemed to be
pursuant to a security agreement covering both real and personal property under Section 9.604 of
the UCC; (v) in the event of a foreclosure sale, whether made by Trustee under the terms hereof, or
under judgment of a court, the Collateral and the Property may, at the option of Beneficiary, be
sold as a whole; (vi) it shall not be necessary that Beneficiary take possession of the Collateral,
or any part thereof, prior to the time that any sale pursuant to the provisions of this subsection
is conducted, and it shall not be necessary that the Collateral or any part thereof be present at
the location of such sale; (vii) prior to application of proceeds of disposition of the Collateral
to the Obligations, such proceeds shall be applied to the reasonable expenses of retaking, holding,
preparing for sale or lease, selling, leasing and the like, and the reasonable attorneys’ fees and
legal expenses incurred by Beneficiary; (viii) after notification, if any, hereafter provided in
this subsection, Beneficiary may sell, lease or otherwise dispose of the Collateral, or any part
thereof, in one or more parcels at public or private sale or sales, at Beneficiary’s offices or
elsewhere, for cash, on credit or for future delivery. Upon the request of Beneficiary, Grantor
shall assemble the Collateral and make it available to Beneficiary at any place designated by
Beneficiary that is reasonably convenient to Grantor and Beneficiary. Grantor agrees that
Beneficiary shall not be obligated to give more than ten (10) days’ written notice of the time and
place of any public sale or of the time after which any private sale may take place and that such
notice shall constitute reasonable notice of such matters. Grantor shall be liable for all
reasonable expenses of retaking, holding, preparing for sale or the like, and all reasonable
attorneys’ fees, legal expenses and all other costs and expenses incurred by Beneficiary in
connection with the collection of the Obligations and the enforcement of the rights of Beneficiary
and Lenders under the Loan Documents. Beneficiary shall apply the proceeds of the sale of the
Collateral against the Obligations in accordance with the requirements of this Deed of Trust.
Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the
Collateral are insufficient to pay, perform and discharge the Obligations in full. Grantor waives
all rights of marshalling in respect of the Personalty; (ix) any and all statements of fact or
other recitals made in any bill of sale or assignment or other instrument evidencing any
foreclosure sale hereunder, the nonpayment of the Obligations, the occurrence of any Event of
Default, Beneficiary having declared all or a portion of such Obligations to be due and payable,
the notice of time, place, and terms of sale and of the properties to be sold having been duly
given, or any other act or thing having been duly done by Beneficiary, shall be taken as prima
facie evidence of the truth of the facts so stated and recited; and (x) Beneficiary may appoint or
delegate any one or more persons as agent to perform any act or acts necessary or incident to any
sale held by Beneficiary, including the sending of notices and the conduct of the sale, but in the
name and on behalf of Beneficiary.



(h) Rights Relating to Leases and Rents. Grantor has, pursuant to Section 2.2
of this Deed of Trust, assigned to Beneficiary, on behalf of Lenders, all Rents under each of the
Leases covering all or any portion of the Property. Beneficiary, or Trustee on Beneficiary’s
behalf, may 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 Property or any part thereof, and in its own
name, sue for or otherwise collect the Rents. All Rents collected by Beneficiary, or Trustee
acting on Beneficiary’s behalf, shall be applied as provided for in 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 Obligations, shall bear interest at the rate of
interest then applicable on the outstanding principal balance of the Note, and shall be immediately
due and payable. The entering upon and taking possession of the 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 Event of 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 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 Property or any
other collateral given by Grantor to Beneficiary for the benefit of Lenders. 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 Property and the Collateral 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.



(i) Other Rights. Beneficiary (i) may surrender the insurance policies maintained
pursuant hereto or the other Loan Documents or any part thereof, and upon receipt shall apply the
unearned premiums as a credit on the Obligations, in accordance herewith, and, in connection
therewith, Grantor hereby appoints Beneficiary as agent and attorney-in-fact (which is coupled with
an interest and is therefore irrevocable) for Grantor, during the existence of an Event of Default,
to collect such premiums; and (ii) apply the reserve for impositions, if any, required by the
provisions of this Deed of Trust, toward payment of the Obligations; and (iii) shall have and may
exercise any and all other rights and remedies which Beneficiary may have at law or in equity, or
by virtue of any Loan Document or under the UCC, or otherwise.



(j) Beneficiary as Purchaser. Beneficiary may be the purchaser of the Property and
the Collateral or any part thereof, at any sale thereof, whether such sale be under the power of
sale herein vested in Trustee or upon any other foreclosure of the liens and security interests
hereof, or otherwise, and Beneficiary shall, upon any such purchase, acquire good title to the
Property and the Collateral so purchased, free of the liens and security interests hereof, unless
the sale was made subject to an unmatured portion of the Obligations. Beneficiary, as purchaser,
shall be treated in the same manner as any third party purchaser and the proceeds of Beneficiary’s
purchase shall be applied in accordance with the requirements of this Deed of Trust.



(k) Possession After Foreclosure. If the liens or security interests hereof shall be
foreclosed by power of sale granted herein, by judicial action or otherwise, the purchaser at any
such sale shall receive, as an incident to purchaser’s ownership, immediate possession of the
property purchased, and if Grantor or Grantor’s successors shall hold possession of said property
or any part thereof subsequent to foreclosure, Grantor and Grantor’s successors shall be considered
as tenants at sufferance of the purchaser at foreclosure sale (without limitation of other rights
or remedies, at a reasonable rental per day, due and payable daily, based upon the value of the
portion of the Property and the Collateral so occupied or possessed and sold to such purchaser),
and anyone occupying or possessing such portion of the Property and the Collateral, after demand is
made for possession thereof, shall be guilty of forcible detainer and shall be subject to eviction
and removal, forcible or otherwise, with or without process of law, and all damages by reason
thereof are hereby expressly waived.



(l) Abandonment of Sale. In the event a foreclosure hereunder is commenced by Trustee
in accordance with subsection (d) hereof, at any time before the sale, Trustee may abandon
the sale, and Beneficiary may then institute suit for the collection of the Obligations and for the
foreclosure of the liens and security interests hereof and of the Loan Documents. If Beneficiary
should institute a suit for the collection of the Obligations and for a foreclosure of the liens
and security interests hereof, Beneficiary may, at any time before the entry of a final judgment in
said suit, dismiss the same and require Trustee to sell the Property and Collateral or any part
thereof in accordance with the provisions of this Deed of Trust.



Section 9.22 Application of Foreclosure Sale Proceeds.



Except as may be otherwise required by applicable law, after deducting all reasonable costs,
fees and expenses of Trustee, and of this trust, including, without limitation, cost of evidence of
title and attorneys’ fees in connection with sale and costs and expenses of sale and of any
judicial proceeding wherein such sale may be made, Trustee shall apply all proceeds of any
foreclosure sale: (a) to payment of all sums expended by Beneficiary under the terms hereof and not
then repaid, with accrued interest at the rate of interest specified in the Note to be applicable
on or after maturity or acceleration of the Note; (b) to payment of all other Obligations, and (c)
the remainder, if any, to the person or persons legally entitled thereto.



Section 9.23 Application of Other Sums.



All sums received by Beneficiary under Section 9.21 or Section 2.2, less all
reasonable costs and expenses incurred by Beneficiary or any receiver under Section 9.21 or
Section 2.2, including, without limitation, attorneys’ fees, shall be applied in payment of
the Obligations in such order as Beneficiary shall determine in its sole discretion; provided,
however, Beneficiary shall have no liability for funds not actually received by Beneficiary.



Section 9.24 No Cure or Waiver.



Neither Beneficiary’s nor Trustee’s nor any receiver’s entry upon and taking possession of all
or any part of the Property and the Collateral, nor any collection of rents, issues, profits,
insurance proceeds, condemnation proceeds or damages, other security or proceeds of other security,
or other sums, nor the application of any collected sum to any Obligation, nor the exercise of or
failure to exercise any other right or remedy by Beneficiary or Trustee or any receiver shall cure
or waive any breach, Default, Event of Default or notice of default under this Deed of Trust, or
nullify the effect of any notice of default or sale (unless all Obligations then due have been paid
and performed and Grantor has cured all other defaults), or impair the status of the security, or
prejudice Beneficiary or Trustee in the exercise of any right or remedy, or be construed as an
affirmation by Beneficiary of any tenancy, lease or option or a subordination of the lien of or
security interest created by this Deed of Trust.



Section 9.25 Payment of Costs, Expenses and Attorneys’ Fees.



Grantor agrees to pay to Beneficiary immediately and without demand all reasonable costs and
expenses incurred by Trustee and Beneficiary pursuant to Section 9.22 (including, without
limitation, court costs and attorneys’ fees, whether incurred in litigation or not) with interest
from the date of expenditure until said sums have been paid at the rate of interest then applicable
to the principal balance of the Note as specified therein. In addition, Grantor shall pay to
Trustee all reasonable Trustee’s fees hereunder and shall reimburse Trustee for all reasonable
expenses incurred in the administration of this trust, including, without limitation, any
attorneys’ fees.



Section 9.26 Inapplicability of Finance Code.



In no event shall the provisions of Chapter 346 of the Texas Finance Code (which regulates
certain revolving credit loan accounts and revolving triparty accounts) apply to the loan evidenced
by the Loan Documents and/or secured hereby.



Section 9.27 Collateral Protection Insurance.



TEXAS FINANCE CODE SECTION 307.052 COLLATERAL PROTECTION INSURANCE NOTICE: (A) GRANTOR IS
REQUIRED TO: (i) KEEP THE PROPERTY INSURED AGAINST DAMAGE IN THE AMOUNT BENEFICIARY SPECIFIES; (ii)
PURCHASE THE INSURANCE FROM AN INSURER THAT IS AUTHORIZED TO DO BUSINESS IN THE STATE OF TEXAS OR
AN ELIGIBLE SURPLUS LINES INSURER; AND (III) NAME BENEFICIARY AS THE PERSON TO BE PAID UNDER THE
POLICY IN THE EVENT OF A LOSS; (B) GRANTOR MUST, IF REQUIRED BY BENEFICIARY, DELIVER TO BENEFICIARY
A COPY OF THE POLICY AND PROOF OF THE PAYMENT OF PREMIUMS; AND (C) IF GRANTOR FAILS TO MEET ANY
REQUIREMENT LISTED IN SUBSECTION (A) OR (B), BENEFICIARY MAY OBTAIN COLLATERAL PROTECTION INSURANCE
ON BEHALF OF TRUSTOR AT TRUSTOR’S EXPENSE.



Section 9.28 Rights and Remedies of Sureties.



Grantor waives any right or remedy which Grantor may have or be able to assert pursuant to
Chapter 34 of the Business and Commerce Code of the State of Texas pertaining to the rights and
remedies of sureties.



Section 9.29 Deficiency.



(a) In the event that the fee, a leasehold estate or any other interest in all or any portion
of the Property and the Collateral is foreclosed upon pursuant to a judicial or nonjudicial
foreclosure sale (the “Foreclosed Property”), Grantor agrees as follows: Notwithstanding
the provisions of Sections 51.003, 51.004, and 51.005 of the Texas Property Code (as the same may
be amended from time to time), and to the extent permitted by law, Grantor agrees that Trustee, on
behalf of Lenders, shall be entitled to seek a deficiency judgment from Grantor and any other party
obligated for the Obligations or any portion thereof equal to the difference between the amount
owing of the Obligations and the amount for which the Foreclosed Property was sold pursuant to
judicial or nonjudicial foreclosure sale. Grantor expressly recognizes that this section
constitutes a waiver of the above-cited provisions of the Texas Property Code which would otherwise
permit Grantor and other persons against whom recovery of deficiencies is sought or any guarantor
independently (even absent the initiation of deficiency proceedings against them) to present
competent evidence of the fair market value of the Foreclosed Property as of the date of the
foreclosure sale and offset against any deficiency the amount by which the foreclosure sale price
is determined to be less than such fair market value. Grantor further recognizes and agrees that
this waiver creates an irrebuttable presumption that the foreclosure sale price is equal to the
fair market value of the Foreclosed Property for purposes of calculating deficiencies owed by
Grantor, any guarantor, and others against whom recovery of a deficiency is sought.



(b) Alternatively, in the event the waiver provided for in subsection (a) above is
determined by a court of competent jurisdiction to be unenforceable, the following shall be the
basis for the finder of fact’s determination of the fair market value of the Foreclosed Property as
of the date of the foreclosure sale in proceedings governed by Sections 51.003, 51.004 and 51.005
of the Texas Property Code (as amended from time to time): (i) the Foreclosed Property shall be
valued in an “as is” condition as of the date of the foreclosure sale, without any assumption or
expectation that the Foreclosed Property will be repaired or improved in any manner before a resale
of the Foreclosed Property after foreclosure; (ii) the valuation shall be based upon an assumption
that the foreclosure purchaser desires a resale of the Foreclosed Property for cash promptly (but
no later than twelve (12) months) following the foreclosure sale; (iii) all reasonable closing
costs customarily borne by the seller in commercial real estate transactions should be deducted
from the gross fair market value of the Foreclosed Property, including, without limitation,
brokerage commissions, title insurance, a survey of the Property, tax prorations, attorneys’ fees,
and marketing costs; (iv) the gross fair market value of the Foreclosed Property shall be further
discounted to account for any estimated holding costs associated with maintaining the it pending
sale, including, without limitation, utilities expenses, property management fees, taxes and
assessments (to the extent not accounted for in subsection (iii) above), and other
maintenance, operational and ownership expenses; and (v) any expert opinion testimony given or
considered in connection with a determination of the fair market value of the Foreclosed Property
must be given by persons having at least five (5) years experience in appraising property similar
to the Foreclosed Property and who have conducted and prepared a complete written appraisal of the
Property and the Foreclosed Property taking into consideration the factors set forth above.



Section 9.30 Subrogation to Existing Liens; Vendor’s/Purchase Money Lien.



To the extent that proceeds of the Note are used to pay indebtedness secured by any
outstanding lien, security interest, charge or prior encumbrance against the Property, such
proceeds have been advanced by Beneficiary at Grantor’s request, and Beneficiary shall be
subrogated to any and all rights, security interests and liens owned by any owner or holder of such
outstanding liens, security interests, charges or encumbrances, however remote, irrespective of
whether said liens, security interests, charges or encumbrances are released, and all of the same
are recognized as valid and subsisting and are renewed and continued and merged herein to secure
the Obligations, but the terms and provisions of this Deed of Trust shall govern and control the
manner and terms of enforcement of the liens, security interests, charges and encumbrances to which
Beneficiary is subrogated hereunder. It is expressly understood that, in consideration of the
payment of such indebtedness by Beneficiary, Grantor hereby waives and releases all demands and
causes of action for offsets and payments in connection with the said indebtedness. If all or any
portion of the proceeds of the loan evidenced by the Note or of any other secured indebtedness has
been advanced for the purpose of paying the purchase price for all or a part of the Property, no
vendor’s or purchase money lien is waived; and Beneficiary shall have, and is hereby granted, a
vendor’s or purchase money lien on the Property as cumulative additional security for the secured
indebtedness. Beneficiary may foreclose under this Deed of Trust or under the vendor’s or purchase
money lien without waiving the other or may foreclose under both.



Section 9.31 WAIVER OF JURY TRIAL.



EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS DEED OF TRUST OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS DEED OF TRUST AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



Section 9.32 Rights of Tenants.



Beneficiary shall have the right and option to commence a civil action to foreclose this Deed
of Trust and to obtain a decree of foreclosure and sale subject to the rights of any tenant or
tenants of the Property having an interest in the Property prior to that of Beneficiary. The
failure to join any such tenant or tenants of the Property as party defendant or defendants in any
such civil action or the failure of any decree of foreclosure and sale to foreclose their rights
shall not be asserted by Grantor as a defense in any civil action instituted to collect the
Obligations, or any part thereof or any deficiency remaining unpaid after foreclosure and sale of
the Property, any statue or rule of law at any time existing to the contrary notwithstanding.



Section 9.33 Substitute Trustee.



Trustee may resign by an instrument in writing addressed to Beneficiary, or Trustee may be
removed at any time with or without cause by an instrument in writing executed by Beneficiary. In
case of the death, resignation, removal, or disqualification of Trustee, or if for any reason
Beneficiary shall deem it desirable to appoint a substitute or successor trustee to act instead of
the herein named trustee or any substitute or successor trustee, then Beneficiary shall have the
right and is hereby authorized and empowered to appoint a successor trustee(s), or a substitute
trustee(s), without other formality than appointment and designation in writing executed by
Beneficiary and the authority hereby conferred shall extend to the appointment of other successor
and substitute trustees successively until the Obligations has been paid in full, or until the
Property is fully and finally sold hereunder. If Beneficiary is a corporation or association and
such appointment is executed on its behalf by an officer of such corporation or association, such
appointment shall be conclusively presumed to be executed with authority and shall be valid and
sufficient without proof of any action by the board of directors or any superior officer of the
corporation or association. Upon the making of any such appointment and designation, all of the
estate and title of Trustee in the Property shall vest in the named successor or substitute
Trustee(s) and he shall thereupon succeed to, and shall hold, possess and execute, all the rights,
powers, privileges, immunities and duties herein conferred upon Trustee. All references herein to
“Trustee” shall be deemed to refer to Trustee (including any successor(s) or substitute(s)
appointed and designated as herein provided) from time to time acting hereunder.



Section 9.34 No Liability of Trustee.



Trustee shall not be liable for any error of judgment or act done by Trustee in good faith, or
be otherwise responsible or accountable under any circumstances whatsoever (including Trustee’s
negligence), except for Trustee’s gross negligence or willful misconduct. Trustee shall have the
right to rely on any instrument, document or signature authorizing or supporting any action taken
or proposed to be taken by him hereunder, believed by him in good faith to be genuine. All moneys
received by Trustee shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated in any manner from any other
moneys (except to the extent required by law), and Trustee shall be under no liability for interest
on any moneys received by him hereunder. Grantor hereby ratifies and confirms any and all acts
which the herein named Trustee or its successor or successors, substitute or substitutes, in this
trust, shall do lawfully by virtue hereof. Grantor will reimburse Trustee for, and save it
harmless against, any and all liability and expenses which may be incurred by it in the performance
of its duties. The foregoing indemnity shall not terminate upon discharge of the Obligations or
foreclosure, or release or other termination, of this Deed of Trust.



Section 9.35 Entire Agreement.



The Loan Documents constitute the entire understanding and agreement among Grantor,
Beneficiary and Lenders with respect to the transactions arising in connection with the Loan, and
supersede all prior written or oral understandings and agreements between Grantor, Beneficiary and
Lenders with respect to the matters addressed in the Loan Documents. In particular, and without
limitation, the terms of any commitment by Beneficiary and Lenders to make the Loan are merged into
the Loan Documents. Except as incorporated in writing into the Loan Documents, there are no
representations, understandings, stipulations, agreements or promises, oral or written, with
respect to the matters addressed in the Loan Documents.



[SIGNATURE PAGE FOLLOWS]





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IN WITNESS WHEREOF, Grantor has caused this Deed of Trust to be executed under seal as of the
day and year first written above.



GRANTOR:



G&E HC REIT II LIVINGSTON MOB, LLC,


a Delaware limited liability company



By: GRUBB & ELLIS HEALTHCARE REIT II HOLDINGS, LP,


a Delaware limited partnership, its sole Member



By: GRUBB & ELLIS HEALTHCARE REIT II, INC.,





a Maryland corporation, its general partner



By: /s/ Shannon K S Johnson

Name: Shannon K S Johnson

Title: Chief Financial Officer




	 	 	 
	State of California

County of Orange

	 	§

§

§






This instrument was acknowledged before me on September 7, 2010, by Shannon K S Johnson, the Chief
Financial Officer of Grubb & Ellis Healthcare REIT II, Inc., a Maryland corporation, the general
partner of Grubb & Ellis Healthcare REIT II Holdings, L.P., a Delaware limited partnership, the
sole Member of G&E HC REIT II Livingston MOB, LLC, a Delaware limited liability company, on behalf
of said entities.



Printed Name: /s/ Rex Morishita



Notary Public, State of California




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