EX-10.9






[FORM OF]




Prepared outside the Commonwealth of Virginia.


After Recording Mail To:



KEYBANK NATIONAL ASSOCIATION


Key Healthcare Finance


WA 31-13-2313


1301 Fifth Avenue, 23rd Floor


Seattle, WA 98101


Attn: Bellini Lacey



Grantor’s Organizational Identification Number: 4845916


Tax Parcel Nos.: 48 A 24; 48 A 25



DEED OF TRUST

ASSIGNMENT OF RENTS,

SECURITY AGREEMENT AND FIXTURE FILING




WITH POWER OF SALE




THE PRINCIPAL AMOUNT OF $26,810,000.00 IS SECURED BY FIVE PROPERTIES LOCATED IN THE COUNTIES
OF BLAND, ALBEMARLE, RUSSELL, ALLEGHANY, AND CHESTERFIELD IN THE COMMONWEALTH OF VIRGINIA. AN
ORIGINAL DEED OF TRUST SECURING THE PRINCIPAL AMOUNT OF $26,810,000.00 IS BEING RECORDED IN THE
CLERK’S OFFICE OF EACH OF THE FOREGOING JURISDICTIONS AS A LIEN AGAINST THE PROPERTY LOCATED
THEREIN. PURSUANT TO SECTION 58.1-812, CODE OF VIRGINIA, AS AMENDED, THE STATE TAX IMPOSED BY
SECTION 58.1-803(B), CODE OF VIRGINIA, AS AMENDED, HAS BEEN PAID IN FULL TO THE CLERK OF THE
CIRCUIT COURT OF        COUNTY, VIRGINIA.



THE LOCAL TAX IMPOSED BY SECTION 58.1-814, CODE OF VIRGINIA, AS AMENDED, HAS BEEN COMPUTED AND PAID
ON THE BASIS OF THE FOLLOWING PERCENTAGE AMOUNTS AS ALLOCATED BASED UPON THE PRORATA VALUES OF THE
PROPERTY SECURED THEREBY:



JURISDICTION: % OF WHOLE: AMOUNT OF LOCAL TAX:



	 	 	 	 	 
	1. Albemarle County, Virginia

2. Chesterfield County, Virginia

3. Bland County, Virginia

4. Russell County, Virginia

5. Allegheny County, Virginia

	 	23.4987 %

33.6815 %

7.5718 %

11.7493 %

23.4987 %
	 	$     

$     

$     

$     

$     






This DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING with power of
sale (this “Deed of Trust”) dated September 16, 2010, is made by G&E HC REIT II Bastian SNF, LLC, a
Delaware limited liability company (“Grantor”) whose address is c/o Grubb & Ellis Healthcare REIT
II, Inc., 1551 N. Tustin Avenue, Suite 300, Santa Ana, CA 92705, in favor of AMY B. CONNELLY, ESQ.
and JOHN E. VIHSTADT, ESQ., as Trustees, each a resident of Virginia (either of whom may act for
both and who are collectively referred to herein as “Trustee”), whose address is c/o Krooth &
Altman LLP, 1850 M Street N.W., Suite 400, Washington, D.C. 20036, for the benefit of KEYBANK
NATIONAL ASSOCIATION, its successors and assigns (“Beneficiary”) whose address is Key Healthcare
Finance, Mail Code: WA 31-13-2313, 1301 Fifth Avenue, 23rd Floor, Seattle, WA 98101.



1. Grant and Secured Obligations.



1.1 Grant. For the purpose of securing payment and performance of the Secured
Obligations defined and described in Section 1.2 below, Grantor hereby irrevocably and
unconditionally grants, transfers, conveys and assigns to Trustee, in trust, WITH POWER OF SALE,
and with right of entry and possession, all estate, right, title and interest which Grantor now has
or may later acquire in and to the following property (all or any part of such property, or any
interest in all or any part of it, as the context may require, the “Property”):



(a) The real property located in the County of Bland, Commonwealth of Virginia, as described
in Exhibit A, together with all existing and future easements and rights affording access
to it (the “Land”); together with



(b) All buildings, structures and improvements now located or later to be constructed on the
Land (the “Improvements”); together with



(c) All existing and future appurtenances, privileges, easements, franchises and tenements of
the Land, including all minerals, oil, gas, other hydrocarbons and associated substances, sulphur,
nitrogen, carbon dioxide, helium and other commercially valuable substances which may be in, under
or produced from any part of the Land, all development rights and credits, air rights, water, water
rights (whether riparian, appropriative or otherwise, and whether or not appurtenant) and water
stock, and any Land lying in the streets, roads or avenues, open or proposed, in front of or
adjoining the Land and Improvements; together with



(d) All existing and future leases, subleases, subtenancies, licenses, occupancy agreements
and concessions (“leases”) relating to the use and enjoyment of all or any part of the Land and
Improvements, and any and all guaranties and other agreements relating to or made in connection
with any of such leases; together with



(e) All real property and improvements on it, and all appurtenances and other property and
interests of any kind or character, whether described in Exhibit A or not, which may be
reasonably necessary or desirable to promote the present and any reasonable future beneficial use
and enjoyment of the Land and Improvements; together with



(f) All goods, materials, supplies, chattels, furniture, fixtures, equipment and machinery now
or later to be attached to, placed in or on, or used in connection with the use, enjoyment,
occupancy or operation of all or any part of the Land and Improvements, whether stored on the Land
or elsewhere, including all pumping plants, engines, pipes, ditches and flumes, and also all gas,
electric, cooking, heating, cooling, air conditioning, lighting, refrigeration and plumbing
fixtures and equipment, all of which shall be considered to the fullest extent of the law to be
real property for purposes of this Deed of Trust; together with



(g) All building materials, equipment, work in process or other personal property of any kind,
whether stored on the Land or elsewhere, which have been or later will be acquired for the purpose
of being delivered to, incorporated into or installed in or about the Land or Improvements;
together with



(h) All of Grantor’s interest in and to all operating accounts, the Loan funds, whether
disbursed or not, all reserves set forth in the Budget and any other bank accounts of Grantor;
together with



(i) All rights to the payment of money, accounts, accounts receivable, reserves, deferred
payments, refunds, cost savings, payments and deposits, whether now or later to be received from
third parties (including all earnest money sales deposits) or deposited by Grantor with third
parties (including all utility deposits), contract rights, development and use rights, governmental
permits and licenses, applications, architectural and engineering plans, specifications and
drawings, as-built drawings, chattel paper, instruments, documents, notes, drafts and letters of
credit (other than letters of credit in favor of Beneficiary), which arise from or relate to
construction on the Land or to any business now or later to be conducted on it, or to the Land and
Improvements generally; together with



(j) All insurance policies pertaining to the Land and all proceeds, including all claims to
and demands for them, of the voluntary or involuntary conversion of any of the Land, Improvements
or the other property described above into cash or liquidated claims, including proceeds of all
present and future fire, hazard or casualty insurance policies and all condemnation awards or
payments now or later to be made by any public body or decree by any court of competent
jurisdiction for any taking or in connection with any condemnation or eminent domain proceeding,
and all causes of action and their proceeds for any damage or injury to the Land, Improvements or
the other property described above or any part of them, or breach of warranty in connection with
the construction of the Improvements, including causes of action arising in tort, contract, fraud
or concealment of a material fact; together with



(k) All books and records pertaining to any and all of the property described above, including
computer-readable memory and any computer hardware or software necessary to access and process such
memory (“Books and Records”); together with



(l) All Grantor’s right, title and interest in and to any Interest Rate Agreement or interest
rate hedging program through the purchase by Grantor from Beneficiary of an interest rate swap,
cap, or such other interest rate protection product, all whether now or hereafter entered into by
Grantor with respect to the Loan, including, without limitation, any and all amounts payable to
Grantor, any deposit account or accounts with the Beneficiary in the name of the Grantor for
deposit of payments to Grantor in connection with any Swap Transaction, and any and all funds now
or hereafter on deposit therein, and ; together with



(m) all deposit accounts and any other bank accounts of Grantor; together with



(n) (i) all agreements heretofore or hereafter entered into relating to the construction,
ownership, operation, management, leasing or use of the Premises or Improvements, (ii) any and all
present and future amendments, modifications, supplements, and addenda to any of the items
described in clause (i), (iii) any and all guarantees, warranties and other undertakings (including
payment and performance bonds) heretofore or hereafter entered into or delivered with respect to
any of the items described in clauses (i) through (ii), (iv) all trade names, trademarks, logos and
other materials used to identify or advertise, or otherwise relating to the Premises or
Improvements, and (v) all building permits, governmental permits, licenses, variances, conditional
or special use permits, and other authorizations now or hereafter issued in connection with the
construction, development, ownership, operation, management, leasing or use of the Premises or
Improvements, to the fullest extent that the same or any interest therein may be legally assigned
by Grantor; and



(o) All proceeds of, additions and accretions to, substitutions and replacements for, and
changes in any of the property described above.



Capitalized terms used above and elsewhere in this Deed of Trust without definition have the
meanings given them in the Loan Agreement referred to in Subsection 1.2(a)(iii) below.



1.2 Secured Obligations.



(a) Grantor makes the grant, conveyance, assignment and transfer set forth in
Section 1.1 above, and grants the security interest set forth in Section 3 below
for the purpose of securing the following obligations (the “Secured Obligations”) in any order of
priority that Beneficiary may choose:




(i) Payment of all obligations at any time owing under a promissory note ( “Note”)
issued by Grantor, GRUBB & ELLIS HEALTHCARE REIT II, INC., a Maryland corporation, G&E HC
REIT II CHARLOTTESVILLE SNF, LLC, a Delaware limited liability company, G&E HC REIT II
LEBANON SNF, LLC, a Delaware limited liability company, G&E HC REIT II LOW MOOR SNF, LLC, a
Delaware limited liability company, and G&E HC REIT II MIDLOTHIAN SNF, LLC, a Delaware
limited liability company, (collectively with Grantor, “Borrower”) as maker and payable to
Lenders pursuant to the Loan Agreement in the principal amount of TWENTY SIX MILLION, EIGHT
HUNDRED TEN THOUSAND and NO/100 DOLLARS ($26,810,000.00);




(ii) Payment and performance of all obligations of Grantor under this Deed of Trust;
and




(iii) Payment and performance of all obligations of Borrower under a Loan Agreement
bearing even date herewith between Borrower as “Borrower” and Beneficiary as “Lender” (the
“Loan Agreement”) and any of the other Loan Documents; and




(iv) Payment of any and all obligations of Borrower to Beneficiary under or related to
any Interest Rate Agreement entered into between Borrower and Beneficiary with respect to
the Note; and




(v) Payment and performance of all future advances and other obligations that Borrower
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; and




(vi) Payment and performance of all modifications, amendments, extensions, and
renewals, however evidenced, of any of the Secured Obligations.



(b) All persons who may have or acquire an interest in all or any part of the Property will be
considered to have notice of, and will be bound by, the terms of the Secured Obligations, the terms
and conditions of which are incorporated by this reference, and each other agreement or instrument
made or entered into in connection with each of the Secured Obligations. Such terms include any
provisions in the Note or the Loan Agreement which permit borrowing, repayment and reborrowing, or
which provide that the interest rate on one or more of the Secured Obligations may vary from time
to time.



2. Assignment of Rents.



2.1 Assignment. Grantor assigns to Beneficiary, as security for the Secured
Obligations, all rents, royalties, issues, profits, revenue, income, accounts, proceeds and other
benefits of the Property, whether now due, past due or to become due, including all prepaid rents
and security deposits (some or all collectively, as the context may require, “Rents”).



2.2 Grant of License. Beneficiary hereby confers upon Grantor a license (“License”)
to collect and retain the Rents as they become due and payable, so long as no Event of Default, as
defined in Section 6.2 below, shall exist and be continuing. If an Event of Default has
occurred and is continuing, Beneficiary shall have the right, which it may choose to exercise in
its sole discretion, to terminate this License without notice to or demand upon Grantor, and
without regard to the adequacy of Beneficiary’s security under this Deed of Trust.



2.3 Collection and Application of Rents. Subject to the License granted to Grantor
under Section 2.2 above, Beneficiary has the right, power and authority to collect any and
all Rents. Grantor hereby appoints Beneficiary its attorney-in-fact to perform any and all of the
following acts, if and at the times when Beneficiary in its sole discretion may so choose:




	 	(a)	 	Demand, receive and enforce payment of any and all Rents; or






	 	(b)	 	Give receipts, releases and satisfactions for any and all
Rents; or






	 	(c)	 	Sue either in the name of Grantor or in the name of
Beneficiary for any and all Rents.





Beneficiary and Grantor agree that the mere recordation of the assignment granted herein entitles
Beneficiary immediately to collect and receive rents upon the occurrence of an Event of Default, as
defined in Section 6.2, without first taking any acts of enforcement under applicable law,
such as, but not limited to, providing notice to Grantor, filing foreclosure proceedings, or
seeking and/or obtaining the appointment of a receiver. Further, Beneficiary’s right to the Rents
does not depend on whether or not Beneficiary takes possession of the Property as permitted under
Subsection 6.3(c). In Beneficiary’s sole discretion, Beneficiary may choose to collect
Rents either with or without taking possession of the Property. Beneficiary shall apply all Rents
collected by it in the manner provided under Section 6.6. If an Event of Default occurs
while Beneficiary is in possession of all or part of the Property and is collecting and applying
Rents as permitted under this Deed of Trust, Beneficiary and any receiver shall nevertheless be
entitled to exercise and invoke every right and remedy afforded any of them under this Deed of
Trust and at law or in equity.



2.4 Beneficiary Not Responsible. Under no circumstances shall Beneficiary have any
duty to produce Rents from the Property. Regardless of whether or not Beneficiary, in person or by
agent, takes actual possession of the Land and Improvements, unless Beneficiary agrees in writing
to the contrary, Beneficiary is not and shall not be deemed to be:



(a) A “mortgagee in possession” for any purpose; or



(b) Responsible for performing any of the obligations of the lessor under any lease; or



(c) Responsible for any waste committed by lessees or any other parties, any dangerous or
defective condition of the Property, or any negligence in the management, upkeep, repair or control
of the Property; or



(d) Liable in any manner for the Property or the use, occupancy, enjoyment or operation of all
or any part of it.



2.5 Leasing. Grantor shall not accept any deposit or prepayment of rents under the
leases for any rental period exceeding one (1) month without Beneficiary’s prior written consent.
Grantor shall not lease the Property or any part of it except strictly in accordance with the Loan
Agreement.



3. Grant of Security Interest.



3.1 Security Agreement. The parties intend for this Deed of Trust to create a lien on
the Property, and an assignment of the Rents, all in favor of Beneficiary. The parties acknowledge
that some of the Property and some or all of the Rents may be determined under applicable law to be
personal property or fixtures. To the extent that any Property or Rents may be or be determined to
be personal property, Grantor as debtor hereby grants Beneficiary and Trustee as secured parties a
security interest in all such Property and Rents, to secure payment and performance of the Secured
Obligations. This Deed of Trust constitutes a security agreement under the Uniform Commercial Code
of the Commonwealth of Virginia, covering all such Property and Rents.



3.2 Financing Statements. As provided in Section 5.9 below, Grantor shall pay
all fees and costs that Beneficiary may incur in filing financing statements and such other
documents as Beneficiary may from time to time require to perfect or continue the perfection of
Beneficiary’s security interest in any Property or Rents and in obtaining such record searches as
Beneficiary may reasonably require. In case Grantor fails to execute any document for the
perfection or continuation of any security interest, Grantor hereby appoints Beneficiary as its
true and lawful attorney-in-fact to execute any such document on its behalf. If any financing
statement or other document is filed in the records normally pertaining to personal property, that
filing shall never be construed as in any way derogating from or impairing this Deed of Trust or
the rights or obligations of the parties under it.



4. Fixture Filing.



This Deed of Trust constitutes a financing statement filed as a fixture filing under Article 9
of the Uniform Commercial Code in the Commonwealth of Virginia, as amended or recodified from time
to time, covering any Property which now is or later may become fixtures attached to the Land or
Improvements. For this purpose, the respective addresses of Grantor, as debtor, and Beneficiary
and Trustee, as secured parties, are as set forth in the preambles of this Deed of Trust.



5. Rights and Duties of the Parties.



5.1 Representations and Warranties. Grantor represents and warrants that:



(a) Grantor lawfully possesses and holds fee simple title to all of the Land and Improvements;



(b) Grantor has or will have good title to all Property other than the Land and Improvements;



(c) Grantor has the full and unlimited power, right and authority to encumber the Property and
assign the Rents;



(d) This Deed of Trust creates a first and prior lien on the Property;



(e) The Property includes all property and rights which may be reasonably necessary or
desirable to promote the present and any reasonable future beneficial use and enjoyment of the
Land and Improvements;



(f) Grantor owns any Property which is personal property free and clear of any security
agreements, reservations of title or conditional sales contracts, and there is no financing
statement affecting such personal property on file in any public office; and



(g) Grantor’s place of business, or its chief executive office if it has more than one place
of business, is located at as set forth in the preambles of this Deed of Trust.



5.2 Taxes, and Assessments. Grantor shall pay prior to delinquency all taxes, levies,
charges and assessments against the Property.



5.3 Performance of Secured Obligations. Grantor shall promptly pay and perform each
Secured Obligation in accordance with its terms.



5.4 Liens, Charges and Encumbrances. Grantor shall immediately discharge any lien on
the Property which Beneficiary has not consented to in writing or which is not otherwise permitted
in accordance with the terms of the Loan Agreement.



5.5 Damages and Insurance and Condemnation Proceeds. In the event of any casualty or
condemnation of the Property, the provisions of Article 9 of the Loan Agreement shall govern.



5.6 Maintenance and Preservation of Property.



(a) Grantor shall insure the Property as required by the Loan Agreement and keep the Property
in good condition and repair.



(b) Grantor shall not remove or demolish the Property or any part of it, or alter, restore or
add to the Property, or initiate or allow any change or variance in any zoning or other Land use
classification which affects the Property or any part of it, except as permitted or required by the
Loan Agreement or with Beneficiary’s express prior written consent in each instance.



(c) If all or part of the Property becomes damaged or destroyed, Grantor shall promptly and
completely repair and/or restore the Property in a good and workmanlike manner in accordance with
sound building practices, regardless of whether or not Beneficiary agrees to disburse Proceeds or
other sums to pay costs of the work of repair or reconstruction under Article 9 of the Loan
Agreement.



(d) Grantor shall not commit or allow any act upon or use of the Property which would violate:
(i) any applicable Laws or order of any Governmental Authority, whether now existing or later to
be enacted and whether foreseen or unforeseen; or (ii) any public or private covenant, condition,
restriction or equitable servitude affecting the Property. Grantor shall not bring or keep any
article on the Property or cause or allow any condition to exist on it, if that could invalidate or
would be prohibited by any insurance coverage required to be maintained by Grantor on the Property
or any part of it under the Loan Agreement.



(e) Grantor shall not commit or allow waste of the Property, including those acts or omissions
characterized under the Loan Agreement as waste which arises out of Hazardous Material.



(f) Grantor shall perform all other acts which from the character or use of the Property may
be reasonably necessary to maintain and preserve its value.



5.7 Releases, Extensions, Modifications and Additional Security. From time to time,
Beneficiary may perform any of the following acts without incurring any liability or giving notice
to any person:




(a) Release any person liable for payment of any Secured Obligation;




(b) Extend the time for payment, or otherwise alter the terms of payment, of any Secured
Obligation;




(c) Accept additional real or personal property of any kind as security for any Secured
Obligation, whether evidenced by deeds of trust, mortgages, security agreements or any other
instruments of security;




(d) Alter, substitute or release any property securing the Secured Obligations;




(e) Consent to the making of any plat or map of the Property or any part of it;




(f) Join in granting any easement or creating any restriction affecting the Property; or




(g) Join in any subordination or other agreement affecting this Deed of Trust or the lien of
it; or



(h) Release the Property or any part of it.



5.8 Release. When all of the Secured Obligations have been paid in full and all fees
and other sums owed by Grantor under Section 5.9 of this Deed of Trust and the other Loan
Documents have been received, Beneficiary and Trustee shall release this Deed of Trust, the lien
created thereby, and all notes and instruments evidencing the Secured Obligations. Grantor shall
pay any costs of preparation and recordation of such release.



5.9 Compensation, Exculpation, Indemnification.



(a) Grantor agrees to pay fees in the maximum amounts legally permitted, or reasonable fees as
may be charged by Beneficiary when the law provides no maximum limit, for any services that
Beneficiary or Trustee may render in connection with this Deed of Trust, including providing a
statement of the Secured Obligations or providing the release pursuant to Section 5.8
above. Grantor shall also pay or reimburse all of Beneficiary’s and Trustee’s costs and expenses
which may be incurred in rendering any such services. Grantor further agrees to pay or reimburse
Beneficiary for all costs, expenses and other advances which may be incurred or made by Beneficiary
or Trustee in any efforts to enforce any terms of this Deed of Trust, including any rights or
remedies afforded to Beneficiary and Trustee under Section 6.3, whether any lawsuit is
filed or not, or in defending any action or proceeding arising under or relating to this Deed of
Trust, including attorneys’ fees and other legal costs, costs of any Foreclosure Sale (as defined
in Subsection 6.3(i) below) and any cost of evidence of title. If Beneficiary and/or
Trustee, as required by applicable law, chooses to dispose of Property through more than one
Foreclosure Sale, Grantor shall pay all costs, expenses or other advances that may be incurred or
made by Beneficiary and/or Trustee in each of such Foreclosure Sales. In any suit to foreclose the
lien hereof or enforce any other remedy of Trustee or Beneficiary under this Deed of Trust or the
Note, there shall be allowed and included as additional indebtedness in the decree for sale or
other judgment or decree all expenditures and expenses which may be paid or incurred by or on
behalf of Trustee and Beneficiary for reasonable attorneys’ costs and fees (including the costs and
fees of paralegals), survey charges, appraiser’s fees, inspecting engineer’s and/or architect’s
fees, fees for environmental studies and assessments and all additional expenses incurred by
Trustee and Beneficiary with respect to environmental matters, outlays for documentary and expert
evidence, stenographers’ charges, publication costs, and costs (which may be estimated as to items
to be expended after entry of the decree) of procuring all such abstracts of title, title searches
and examinations, title insurance policies, and similar data and assurances with respect to title
as Trustee and Beneficiary may deem reasonably necessary either to prosecute such suit or to
evidence to bidders at any sale which may be had pursuant to such decree the true condition of the
title to, the value of or the environmental condition of the Property. All expenditures and
expenses of the nature in this Subsection mentioned, and such expenses and fees as may be incurred
in the protection of the Property and maintenance of the lien of this Deed of Trust, including the
fees of any attorney (including the costs and fees of paralegals) employed by Trustee or
Beneficiary in any litigation or proceeding affecting this Deed of Trust, the Note or the Property,
including probate and bankruptcy proceedings, or in preparation for the commencement or defense of
any proceeding or threatened suit or proceeding, shall be immediately due and payable by Grantor,
with interest thereon at the Default Rate and shall be secured by this Deed of Trust.



(b) Neither Beneficiary nor Trustee shall be directly or indirectly liable to Grantor or any
other person as a consequence of any of the following:




(i) Beneficiary’s or Trustee’s exercise of or failure to exercise any rights, remedies
or powers granted to Beneficiary and/or Trustee in this Deed of Trust;




(ii) Beneficiary’s failure or refusal to perform or discharge any obligation or
liability of Grantor under any agreement related to the Property or under this Deed of
Trust; or




(iii) Any loss sustained by Grantor or any third party resulting from Beneficiary’s
failure to lease the Property, or from any other act or omission of Beneficiary in managing
the Property, after an Event of Default, unless the loss is caused by the willful
misconduct and bad faith of Beneficiary.



Grantor hereby expressly waives and releases all liability of the types described above, and agrees
that no such liability shall be asserted against or imposed upon Beneficiary or Trustee.



(c) Grantor agrees to indemnify Beneficiary and Trustee against and hold them harmless from
all losses, damages, liabilities, claims, causes of action, judgments, court costs, attorneys’ fees
and other legal expenses, cost of evidence of title, cost of evidence of value, and other costs and
expenses which they may suffer or incur:




(i) In performing any act required or permitted by this Deed of Trust or any of the
other Loan Documents or by law;




(ii) Because of any failure of Grantor to perform any of its obligations; or




(iii) Because of any alleged obligation of or undertaking by Beneficiary and/or
Trustee to perform or discharge any of the representations, warranties, conditions,
covenants or other obligations in any document relating to the Property other than the Loan
Documents.



This agreement by Grantor to indemnify Beneficiary and Trustee shall survive the release and
cancellation of any or all of the Secured Obligations and the full or partial release of this Deed
of Trust.



(d) Grantor shall pay all obligations to pay money arising under this Section 5.9
immediately upon demand by Beneficiary. Each such obligation shall be added to, and considered to
be part of, the principal of the Note, and shall bear interest from the date the obligation arises
at the Default Rate.



5.10 Defense and Notice of Claims and Actions. At Grantor’s sole expense, Grantor
shall protect, preserve and defend the Property and title to and right of possession of the
Property, and the security of this Deed of Trust and the rights and powers of Beneficiary created
under it, against all adverse claims. Grantor shall give Beneficiary prompt notice in writing if
any claim is asserted which does or could affect any such matters, or if any action or proceeding
is commenced which alleges or relates to any such claim.



5.11 Subrogation. Beneficiary shall be subrogated to the liens of all encumbrances,
whether released of record or not, which are discharged in whole or in part by Beneficiary in
accordance with this Deed of Trust or with the proceeds of any loan secured by this Deed of Trust.



5.12 Site Visits, Observation and Testing. Beneficiary and its agents and
representatives shall have the right at any reasonable time to enter and visit the Property for the
purpose of performing appraisals, observing the Property, taking and removing soil or groundwater
samples, and conducting tests on any part of the Property. Beneficiary has no duty, however, to
visit or observe the Property or to conduct tests, and no site visit, observation or testing by
Beneficiary, its agents or representatives shall impose any liability on any of Beneficiary, its
agents or representatives. In no event shall any site visit, observation or testing by
Beneficiary, its agents or representatives be a representation that Hazardous Material are or are
not present in, on or under the Property, or that there has been or shall be compliance with any
law, regulation or ordinance pertaining to Hazardous Material or any other applicable governmental
law. Neither Grantor nor any other party is entitled to rely on any site visit, observation or
testing by any of Beneficiary, its agents or representatives. Neither Beneficiary, its agents or
representatives owe any duty of care to protect Grantor or any other party against, or to inform
Grantor or any other party of, any Hazardous Material or any other adverse condition affecting the
Property. Beneficiary shall give Grantor reasonable notice before entering the Property.
Beneficiary shall make reasonable efforts to avoid interfering with Grantor’s use of the Property
in exercising any rights provided in this Section 5.12.



5.13 Notice of Change. Grantor shall give Beneficiary prior written notice of any
change in: (a) the location of its place of business or its chief executive office if it has more
than one place of business; (b) the location of any of the Property, including the Books and
Records; and (c) Grantor’s name or business structure. Unless otherwise approved by Beneficiary in
writing, all Property that consists of personal property (other than the Books and Records) will be
located on the Land and all Books and Records will be located at Grantor’s place of business or
chief executive office if Grantor has more than one place of business.



6. Accelerating Transfers, Default and Remedies.



6.1 Accelerating Transfers.



(a) “Accelerating Transfer” means any Transfer not expressly permitted under the Loan
Agreement.



(b) Grantor acknowledges that Beneficiary is making one or more advances under the Loan
Agreement in reliance on the expertise, skill and experience of Grantor; thus, the Secured
Obligations include material elements similar in nature to a personal service contract. In
consideration of Beneficiary’s reliance, Grantor agrees that Grantor shall not make any
Accelerating Transfer, unless the transfer is preceded by Beneficiary’s express written consent to
the particular transaction and transferee. Beneficiary may withhold such consent in its sole
discretion. If any Accelerating Transfer occurs, Beneficiary in its sole discretion may declare
all of the Secured Obligations to be immediately due and payable, and Beneficiary may invoke any
rights and remedies provided by Section 6.3 of this Deed of Trust.



6.2 Events of Default. Grantor will be in default under this Deed of Trust upon the
occurrence of any one or more of the following events (some or all collectively, “Events of
Default”; any one singly, an “Event of Default”).



(a) An “Event of Default” occurs under the Loan Agreement or any other Loan Document.



(b) Any default by Borrower under the Environmental Indemnity which is not cured within any
applicable cure period thereunder.



(c) Any default by Grantor under any Permitted Exception which is not cured within any
applicable cure period thereunder.



6.3 Remedies. Upon the occurrence of an Event of Default, the Trustee or Beneficiary
may institute foreclosure proceedings, and Grantor assents to the passage of a decree for the sale
of the Property and further authorizes Trustee to sell the Property. Any sale of the Property, or
a portion thereof, whether by way of the assent to decree or power of sale, shall be made in
accordance with all applicable law and principles of equity, and with the provisions of this Deed
of Trust, to the extent the latter are not inconsistent with the applicable law and principles of
equity. At any time after an Event of Default, Beneficiary shall be entitled to invoke any and all
of the rights and remedies described below, in addition to all other rights and remedies available
to Beneficiary at law or in equity. All of such rights and remedies shall be cumulative, and the
exercise of any one or more of them shall not constitute an election of remedies.



(a) Acceleration. Beneficiary may declare any or all of the Secured Obligations to be
due and payable immediately.



(b) Receiver. Beneficiary shall, as a matter of right, without notice and without
giving bond to Grantor or anyone claiming by, under or through Grantor, and without regard for the
solvency or insolvency of Grantor or the then value of the Property, to the extent permitted by
applicable law, be entitled to have a receiver appointed for all or any part of the Property and
the Rents, and the proceeds, issues and profits thereof, with the rights and powers referenced
below and such other rights and powers as the court making such appointment shall confer, and
Grantor hereby consents to the appointment of such receiver and shall not oppose any such
appointment. Such receiver shall have all powers and duties prescribed by applicable law, all
other powers which are necessary or usual in such cases for the protection, possession, control,
management and operation of the Property, and such rights and powers as Beneficiary would have,
upon entering and taking possession of the Property under Subsection 6.3(c) below.



(c) Entry. Beneficiary, in person, by agent or by court-appointed receiver, may
enter, take possession of, manage and operate all or any part of the Property, and may also do any
and all other things in connection with those actions that Beneficiary may in its sole discretion
consider necessary and appropriate to protect the security of this Deed of Trust. Such other
things may include: taking and possessing all of Grantor’s or the then owner’s Books and Records;
entering into, enforcing, modifying or canceling leases on such terms and conditions as Beneficiary
may consider proper; obtaining and evicting tenants; fixing or modifying Rents; collecting and
receiving any payment of money owing to Beneficiary; completing any unfinished construction; and/or
contracting for and making repairs and alterations. If Beneficiary so requests, Grantor shall
assemble all of the Property that has been removed from the Land and make all of it available to
Beneficiary at the site of the Land. Grantor hereby irrevocably constitutes and appoints
Beneficiary as Grantor’s attorney-in-fact to perform such acts and execute such documents as
Beneficiary in its sole discretion may consider to be appropriate in connection with taking these
measures, including endorsement of Grantor’s name on any instruments.



(d) Cure; Protection of Security. Beneficiary may cure any breach or default of
Grantor, and if it chooses to do so in connection with any such cure, Beneficiary may also enter
the Property and/or do any and all other things which it may in its sole discretion consider
necessary and appropriate to protect the security of this Deed of Trust, including, without
limitation, completing construction of the improvements at the Property contemplated by the Loan
Agreement. Such other things may include: appearing in and/or defending any action or proceeding
which purports to affect the security of, or the rights or powers of Beneficiary under, this Deed
of Trust; paying, purchasing, contesting or compromising any encumbrance, charge, lien or claim of
lien which in Beneficiary’s sole judgment is or may be senior in priority to this Deed of Trust,
such judgment of Beneficiary or to be conclusive as among the parties to this Deed of Trust;
obtaining insurance and/or paying any premiums or charges for insurance required to be carried
under the Loan Agreement; otherwise caring for and protecting any and all of the Property; and/or
employing counsel, accountants, contractors and other appropriate persons to assist Beneficiary.
Beneficiary may take any of the actions permitted under this Subsection 6.3(d) either with
or without giving notice to any person. Any amounts expended by Beneficiary under this
Subsection 6.3(d) shall be secured by this Deed of Trust.



(e) Uniform Commercial Code Remedies. Beneficiary may exercise any or all of the
remedies granted to a secured party under the Uniform Commercial Code in the Commonwealth of
Virginia.



(f) Foreclosure; Lawsuits. Beneficiary shall have the right, in one or several
concurrent or consecutive proceedings, to foreclose the lien hereof upon the Property or any part
thereof, for the Secured Obligations, or any part thereof, by any proceedings appropriate under
applicable law. Beneficiary or its nominee may bid and become the purchaser of all or any part of
the Property at any foreclosure or other sale hereunder, and the amount of Beneficiary’s successful
bid shall be credited on the Secured Obligations. Without limiting the foregoing, Beneficiary may
proceed by a suit or suits in law or equity, whether for specific performance of any covenant or
agreement herein contained or in aid of the execution of any power herein granted, or for any
foreclosure under the judgment or decree of any court of competent jurisdiction. In addition to
the right provided in Section 6.3(b), upon, or at any time after the filing of a complaint to
foreclose this Deed of Trust, Trustee and Beneficiary shall be entitled to the appointment of a
receiver of the Property by the court in which such complaint is filed, and Grantor hereby consents
to such appointment.



(g) Other Remedies. Beneficiary may exercise all rights and remedies contained in any
other instrument, document, agreement or other writing heretofore, concurrently or in the future
executed by Grantor or any other person or entity in favor of Beneficiary in connection with the
Secured Obligations or any part thereof, without prejudice to the right of Beneficiary thereafter
to enforce any appropriate remedy against Grantor. Beneficiary shall have the right to pursue all
remedies afforded to a Beneficiary under applicable law, and shall have the benefit of all of the
provisions of such applicable law, including all amendments thereto which may become effective from
time to time after the date hereof.



(h) Sale of Personal Property. Beneficiary and/or Trustee, as required by applicable
law, shall have the discretionary right to cause some or all of the Property, which constitutes
personal property, to be sold or otherwise disposed of in any combination and in any manner
permitted by applicable law.




(i) For purposes of this power of sale, Beneficiary and/or Trustee, as required by
applicable law, may elect to treat as personal property any Property which is intangible or
which can be severed from the Land or Improvements without causing structural damage. If
it chooses to do so, Beneficiary and/or Trustee, as required by applicable law, may dispose
of any personal property, in any manner permitted by Article 9 of the Uniform Commercial
Code of the Commonwealth of Virginia, including any public or private sale, or in any
manner permitted by any other applicable law.




(ii) In connection with any sale or other disposition of such Property, Grantor agrees
that the following procedures constitute a commercially reasonable sale: Beneficiary shall
mail written notice of the sale to Grantor not later than thirty (30) days prior to such
sale. Beneficiary will publish notice of the sale in a local daily newspaper of general
circulation. Upon receipt of any written request, Beneficiary will make the Property
available to any bona fide prospective purchaser for inspection during reasonable business
hours. Notwithstanding, Beneficiary shall be under no obligation to consummate a sale if,
in its judgment, none of the offers received by it equals the fair value of the Property
offered for sale. The foregoing procedures do not constitute the only procedures that may
be commercially reasonable.



(i) Single or Multiple Foreclosure Sales. If the Property consists of more than one
lot, parcel or item of property, Beneficiary and/or Trustee, as required by applicable law, may:




(i) Designate the order in which the lots, parcels and/or items shall be sold or
disposed of or offered for sale or disposition; and




(ii) Elect to dispose of the lots, parcels and/or items through a single consolidated
sale or disposition to be held or made under or in connection with judicial proceedings, or
by virtue of a judgment and decree of foreclosure and sale; or through two or more such
sales or dispositions; or in any other manner Beneficiary may deem to be in its best
interests (any such sale or disposition, a “Foreclosure Sale”; and any two or more,
“Foreclosure Sales”).



If Beneficiary chooses to have more than one Foreclosure Sale, Beneficiary at its option may cause
the Foreclosure Sales to be held simultaneously or successively, on the same day, or on such
different days and at such different times and in such order as Beneficiary may deem to be in its
best interests. No Foreclosure Sale shall terminate or affect the liens of this Deed of Trust on
any part of the Property which has not been sold, until all of the Secured Obligations have been
paid in full.



6.4 Credit Bids. At any Foreclosure Sale, any person, including Grantor or
Beneficiary, may bid for and acquire the Property or any part of it to the extent permitted by then
applicable law. Instead of paying cash for such property, Beneficiary may settle for the purchase
price by crediting the sales price of the property against the following obligations:



(a) First, the portion of the Secured Obligations attributable to the expenses of sale, costs
of any action and any other sums for which Grantor is obligated to pay or reimburse Beneficiary and
Trustee under Section 5.9 of this Deed of Trust; and



(b) Second, all other Secured Obligations in any order and proportions as Beneficiary in its
sole discretion may choose.



6.5 Application of Foreclosure Sale Proceeds. Beneficiary shall apply the proceeds of
any Foreclosure Sale in the following manner:



(a) First, to pay the portion of the Secured Obligations attributable to the expenses of sale,
costs of any action and any other sums for which Grantor is obligated to reimburse Beneficiary or
Trustee under Section 5.9 of this Deed of Trust;



(b) Second, to pay the portion of the Secured Obligations attributable to any sums expended or
advanced by Beneficiary under the terms of this Deed of Trust which then remain unpaid;



(c) Third, to pay all other Secured Obligations in any order and proportions as Beneficiary in
its sole discretion may choose; and



(d) Fourth, to remit the remainder, if any, to the person or persons entitled to it.



6.6 Application of Rents and Other Sums. Beneficiary shall apply any and all Rents
collected by it, and any and all sums other than proceeds of a Foreclosure Sale which Beneficiary
may receive or collect under Section 6.3 above, in the following manner:



(a) First, to pay the portion of the Secured Obligations attributable to the costs and
expenses of operation and collection that may be incurred by Beneficiary or any receiver;



(b) Second, to pay all other Secured Obligations in any order and proportions as Beneficiary
in its sole discretion may choose; and



(c) Third, to remit the remainder, if any, to the person or persons entitled to it.



Beneficiary shall have no liability for any funds which it does not actually receive.



7. The Trustee.



7.1 Certain Rights. With the approval of Beneficiary, Trustee shall have the right to
take any and all of the following actions: (i) to select, employ and consult with counsel (who may
be, but need not be, counsel for Beneficiary) upon any matters arising hereunder, including the
preparation, execution and interpretation of the Loan Documents, and shall be fully protected in
relying as to legal matters on the advice of counsel, (ii) to execute any of the trusts and powers
hereof and to perform any duty hereunder either directly or through his or her agents or attorneys,
(iii) to select and employ, in and about the execution of his or her duties hereunder, suitable
accountants, engineers and other experts, agents and attorneys-in-fact, either corporate or
individual, not regularly in the employ of Trustee (and Trustee shall not be answerable for any
act, default, negligence, or misconduct of any such accountant, engineer or other expert, agent or
attorney-in-fact, if selected with reasonable care, or for any error of judgment or act done by
Trustee in good faith, or be otherwise responsible or accountable under any circumstances
whatsoever, except for Trustee’s gross negligence or bad faith), and (iv) any and all other lawful
action that Beneficiary may instruct Trustee to take to protect or enforce Beneficiary’s rights
hereunder. Trustee shall not be personally liable in case of entry by Trustee, or anyone entering
by virtue of the powers herein granted to Trustee, upon the Land for debts contracted for or
liability or damages incurred in the management or operation of the Land. 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 Trustee hereunder, believed by Trustee in good faith to be genuine.
Trustee shall be entitled to reimbursement for expenses incurred by Trustee in the performance of
Trustee’s duties hereunder and to reasonable compensation for such of Trustee’s services hereunder
as shall be rendered. Grantor will, from time to time, pay the compensation due to Trustee
hereunder and reimburse Trustee for, and save and hold Trustee harmless against, any and all
liability and expenses which may be incurred by Trustee in the performance of Trustee’s duties.



7.2 Retention of Money. 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, and shall be
segregated from any other moneys of Trustee.



7.3 Successor Trustees. Trustee may resign by the giving of notice of such
resignation in writing to Beneficiary. If Trustee shall die, resign or become disqualified from
acting in the execution of this trust, or if, for any reason, Beneficiary, in Beneficiary’s sole
discretion and with or without cause, shall prefer to appoint a substitute trustee or multiple
substitute trustees, or successive substitute trustees or successive multiple substitute trustees,
to act instead of the aforenamed Trustee, Beneficiary shall have full power to appoint a substitute
trustee (or, if preferred, multiple substitute trustees) in succession who shall succeed (and if
multiple substitute trustees are appointed, each of such multiple substitute trustees shall
succeed) to all the estates, rights, powers and duties of the aforenamed Trustee. Such appointment
may be executed by any authorized agent of Beneficiary, and if such Beneficiary be a corporation
and such appointment be executed on its behalf by any officer of such corporation, 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.
Grantor hereby ratifies and confirms any and all acts which the aforenamed Trustee, or his or her
successor or successors in this trust, shall do lawfully by virtue hereof. If multiple substitute
trustees are appointed, each of such multiple substitute trustees shall be empowered and authorized
to act alone without the necessity of the joinder of the other multiple substitute trustees,
whenever any action or undertaking of such substitute trustees is requested or required under or
pursuant to this Deed of Trust or applicable law. Any prior election to act jointly or severally
shall not prevent either or both of such multiple substitute Trustees from subsequently executing,
jointly or severally, any or all of the provisions hereof.



7.4 Perfection of Appointment. Should any deed, conveyance, or instrument of any
nature be required from Grantor by any Trustee or substitute Trustee to more fully and certainly
vest in and confirm to Trustee or substitute Trustee such estates, rights, powers, and duties,
then, upon request by Trustee or substitute trustee, any and all such deeds, conveyances and
instruments shall be made, executed, acknowledged, and delivered and shall be caused to be recorded
and/or filed by Grantor.



7.5 Succession Instruments. Any substitute trustee appointed pursuant to any of the
provisions hereof shall, without any further act, deed or conveyance, become vested with all the
estates, properties, rights, powers, and trusts of its, his or her predecessor in the rights
hereunder with like effect as if originally named as Trustee herein; but nevertheless, upon the
written request of Beneficiary or of the substitute trustee, the Trustee ceasing to act shall
execute and deliver any instrument transferring to such substitute trustee, upon the trusts herein
expressed, all the estates, properties, rights, powers, and trusts of the Trustee so ceasing to
act, and shall duly assign, transfer and deliver any of the property and moneys held by such
Trustee to the substitute trustee so appointed in such Trustee’s place.



7.6 No Representation by Trustee or Beneficiary. By accepting or approving anything
required to be observed, performed, or fulfilled or to be given to Trustee or Beneficiary pursuant
to the Loan Documents, neither Trustee nor Beneficiary shall be deemed to have warranted, consented
to, or affirmed the sufficiency, legality, effectiveness or legal effect of the same, or of any
term, provision, or condition thereof, and such acceptance or approval thereof shall not be or
constitute any warranty or affirmation with respect thereto by Trustee or Beneficiary.



8. Miscellaneous Provisions.



8.1 Additional Provisions. The Loan Documents fully state all of the terms and
conditions of the parties’ agreement regarding the matters mentioned in or incidental to this Deed
of Trust. The Loan Documents also grant further rights to Beneficiary and contain further
agreements and affirmative and negative covenants by Grantor which apply to this Deed of Trust and
to the Property.



8.2 Loan Documents. For all purposes under this Deed of Trust, the term “Loan
Documents” shall also include, without limitation: the Deed of Trust, Assignment of Rents and
Leases, Security Agreement, and Fixture Filing of even date herewith executed by any of the
entities comprising Borrower in favor of Lender and encumbering real property located in the
Commonwealth of Virginia (collectively the “Other Deeds of Trust”). This Deed of Trust and the
Other Deeds of Trust are collectively referred to as the “Deeds of Trust.” The Loan Documents
fully state all of the terms and conditions of the parties’ agreement regarding the matters
mentioned in or incidental to this Deed of Trust. The Loan Documents also grant further rights to
Beneficiary and contain further agreements and affirmative and negative covenants by Borrower which
apply to this Deed of Trust and to the Property.



8.3 Foreclosure of Other Deeds of Trust. Grantor acknowledges and agrees that the
Secured Obligations are not only secured by this Deed of Trust, but also by the Other Deeds of
Trust. Therefore, Beneficiary shall be allowed to enforce payment and performance of the Secured
Obligations and to exercise all rights and powers under this Deed of Trust, the Other Deeds of
Trust, the other Loan Documents, or any of them, or under any provision of law, in one or more
proceedings, whether contemporaneous, consecutive or both, to be determined by Beneficiary in its
absolute sole discretion, in any one or more of the counties within the Commonwealth of Virginia in
which any of the property encumbered by any of the Deeds of Trust is located. Neither the
acceptance of this Deed of Trust nor its enforcement in one county, whether by court action, power
of sale or otherwise, shall prejudice or in any way limit or preclude enforcement any of the Loan
Documents in one or more proceedings in that county or in any other county.



8.4 No Waiver or Cure.



(a) Each waiver by Beneficiary must be in writing, and no waiver shall be construed as a
continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary to take
action on account of any default of Grantor. Consent by Beneficiary to any act or omission by
Grantor shall not be construed as a consent to any other or subsequent act or omission or to waive
the requirement for Beneficiary’s consent to be obtained in any future or other instance.



(b) If any of the events described below occurs, that event alone shall not: cure or waive
any breach, Event of Default or notice of default under this Deed of Trust or invalidate any act
performed pursuant to any such default or notice; or nullify the effect of any notice of default or
sale (unless all Secured Obligations then due have been paid and performed and all other defaults
under the Loan Documents have been cured); or impair the security of this Deed of Trust; or
prejudice Beneficiary or any receiver in the exercise of any right or remedy afforded any of them
under this Deed of Trust; or be construed as an affirmation by Beneficiary of any tenancy, lease or
option, or a subordination of the lien of this Deed of Trust.




(i) Trustee or Beneficiary, its agent or a receiver takes possession of all or any
part of the Property in the manner provided in Subsection 6.3(c).




(ii) Beneficiary collects and applies Rents as permitted under Sections 2.3
and 6.6 above, either with or without taking possession of all or any part of the
Property.




(iii) Beneficiary or Trustee receives and applies to any Secured Obligation any
proceeds of any Property, including any proceeds of insurance policies, condemnation
awards, or other claims, property or rights assigned to Beneficiary under
Section 5.5 above.




(iv) Beneficiary makes a site visit, observes the Property and/or conducts tests as
permitted under Section 5.12 above.




(v) Beneficiary or Trustee receives any sums under this Deed of Trust or any proceeds
of any collateral held for any of the Secured Obligations, and applies them to one or more
Secured Obligations.




(vi) Beneficiary, Trustee or any receiver invokes any right or remedy provided under
this Deed of Trust.



8.5 Powers of Beneficiary.



(a) If Beneficiary performs any act which it is empowered or authorized to perform under this
Deed of Trust, including any act permitted by Section 5.7 or Subsection
6.3(d) of this Deed of Trust, that act alone shall not release or change the personal
liability of any person for the payment and performance of the Secured Obligations then
outstanding, or the lien of this Deed of Trust on all or the remainder of the Property for full
payment and performance of all outstanding Secured Obligations. The liability of the original
Grantor shall not be released or changed if Beneficiary grants any successor in interest to Grantor
any extension of time for payment, or modification of the terms of payment, of any Secured
Obligation. Beneficiary shall not be required to comply with any demand by the original Grantor
that Beneficiary refuse to grant such an extension or modification to, or commence proceedings
against, any such successor in interest.



(b) Beneficiary may take any of the actions permitted under Subsections 6.3(b) and/or
6.3(c) regardless of the adequacy of the security for the Secured Obligations, or whether
any or all of the Secured Obligations have been declared to be immediately due and payable, or
whether notice of default and election to sell has been given under this Deed of Trust.



(c) From time to time, Beneficiary may apply to any court of competent jurisdiction for aid
and direction in executing and enforcing the rights and remedies created under this Deed of Trust.
Beneficiary may from time to time obtain orders or decrees directing, confirming or approving acts
in executing and enforcing these rights and remedies.



8.6 Merger. No merger shall occur as a result of Beneficiary’s acquiring any other
estate in or any other lien on the Property unless Beneficiary consents to a merger in writing.



8.7 Joint and Several Liability. If Grantor consists of more than one person, each
shall be jointly and severally liable for the faithful performance of all of Grantor’s obligations
under this Deed of Trust.



8.8 Applicable Law. This Deed of Trust shall be governed in all respects by the laws
of the Commonwealth of Virginia, which is where the Property is located.



8.9 Successors in Interest. The terms, covenants and conditions of this Deed of Trust
shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties.
However, this Section 8.9 does not waive the provisions of Section 6.1 above.



8.10 Interpretation.



(a) Whenever the context requires, all words used in the singular will be construed to have
been used in the plural, and vice versa, and each gender will include any other gender. The
captions of the sections of this Deed of Trust are for convenience only and do not define or limit
any terms or provisions. The word “include(s)” means “include(s), without limitation,” and the
word “including” means “including, but not limited to.”



(b) The word “obligations” is used in its broadest and most comprehensive sense, and includes
all primary, secondary, direct, indirect, fixed and contingent obligations. It further includes
all principal, interest, prepayment charges, late charges, loan fees and any other fees and charges
accruing or assessed at any time, as well as all obligations to perform acts or satisfy conditions.



(c) No listing of specific instances, items or matters in any way limits the scope or
generality of any language of this Deed of Trust. The Exhibits to this Deed of Trust are hereby
incorporated in this Deed of Trust.



8.11 In-House Counsel Fees. Whenever Grantor is obligated to pay or reimburse
Beneficiary for any attorneys’ fees, those fees shall include the documented and allocated
reasonable costs for services of in-house counsel.



8.12 Waiver of Statutory Rights. To the extent permitted by law, Grantor hereby
agrees that it shall not and will not apply for or avail itself of any appraisement, valuation,
stay, extension or exemption laws, or any so-called “Moratorium Laws,” now existing or hereafter
enacted, in order to prevent or hinder the enforcement or foreclosure of this Deed of Trust, but
hereby waives the benefit of such laws. Grantor for itself and all who may claim through or under
it waives any and all right to have the property and estates comprising the Property marshalled
upon any foreclosure of the lien hereof and agrees that any court having jurisdiction to foreclose
such lien may order the Property sold as an entirety. Grantor hereby waives any and all rights of
redemption from sale under any judgment of foreclosure of this Deed of Trust on behalf of Grantor
and on behalf of each and every person acquiring any interest in or title to the Property of any
nature whatsoever, subsequent to the date of this Deed of Trust. The foregoing waiver of right of
redemption is made pursuant to the provisions of applicable law.



8.13 Severability. If any provision of this Deed of Trust should be held
unenforceable or void, that provision shall be deemed severable from the remaining provisions and
shall in no way affect the validity of this Deed of Trust except that if such provision relates to
the payment of any monetary sum, then Beneficiary may, at its option, declare all Secured
Obligations immediately due and payable.



8.14 Notices. Any notice or demand which is made hereunder shall be given as provided
in the Loan Agreement.



8.15 Beneficiary’s Lien for Service Charge and Expenses. At all times, regardless of
whether any Loan proceeds have been disbursed, this Deed of Trust secures (in addition to any Loan
proceeds disbursed from time to time) the payment of any and all loan commissions, service charges,
liquidated damages, expenses and advances due to or incurred by Beneficiary not to exceed the
maximum amount secured hereby.



8.16 Interest Rate Agreements. For purposes hereof, all obligations of Grantor to
Beneficiary under all Interest Rate Agreements and any indebtedness or obligation contained therein
or evidenced thereby shall be considered an obligation of Grantor secured hereby.



8.17 Waiver of Trial by Jury. GRANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN
CONNECTION WITH THIS DEED OF TRUST, THE NOTE, OR ANY OF THE OTHER LOAN DOCUMENTS, THE LOAN OR ANY
OTHER STATEMENTS OR ACTIONS OF GRANTOR OR BENEFICIARY. GRANTOR ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED IN THE SIGNING OF THIS DEED OF TRUST AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT
LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL
COUNSEL. GRANTOR FURTHER ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS THE MEANING AND
RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER IS A MATERIAL INDUCEMENT FOR BENEFICIARY TO MAKE THE
LOAN, ENTER INTO THIS DEED OF TRUST AND EACH OF THE OTHER LOAN DOCUMENTS, AND (iii) THIS WAIVER
SHALL BE EFFECTIVE AS TO EACH OF SUCH OTHER LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.



8.18 Inconsistencies. In the event of any inconsistency between this Deed of Trust
and the Loan Agreement, the terms hereof shall be controlling as necessary to create, preserve
and/or maintain a valid security interest upon the Property, otherwise the provisions of the Loan
Agreement shall be controlling.



8.19 Reserves.



(a) If required by Beneficiary, Grantor shall, at the time of making each monthly payment
under the Note, deposit with Beneficiary a sum, as estimated by Beneficiary, equal to (i) the taxes
and special assessments next due on the Property, and (ii) the premiums that will next become due
on insurance policies as may be required under this Deed of Trust, less all sums already deposited
therefor, divided by the number of months to elapse before two (2) months prior to the date when
such taxes, special assessments and premiums will become delinquent. Beneficiary may require
Grantor to deposit with Beneficiary, in advance, such other sums for other taxes, assessments,
premiums, charges and impositions in connection with Grantor or the Property as Beneficiary
reasonably deems necessary to protect Beneficiary’s interests (“Other Impositions”). Such sums for
Other Impositions shall be deposited in a lump sum or in periodic installments, at Beneficiary’s
option. If required by Beneficiary, Grantor shall promptly deliver to Beneficiary all bills and
notices with respect to any taxes, assessments, premiums and Other Impositions. Unless Grantor and
Beneficiary otherwise agree in writing, Beneficiary shall not be required to pay Grantor any
interest, earnings or profits on any sums deposited with Beneficiary. All sums deposited with
Beneficiary under this Section 8.16 are hereby pledged as security for the Secured
Obligations.



(b) All such deposited sums shall be held by Beneficiary and applied in such order as
Beneficiary elects to pay such taxes, assessments, premiums and Other Impositions or, upon any
Event of Default, may be applied in whole or in part, to the Secured Obligations. The arrangement
provided for in this Section 8.16 is solely for the added protection of Beneficiary and
entails no responsibility on Beneficiary’s part beyond the allowing of due credit, without
interest, for the sums actually received by it. Upon any assignment of this Deed of Trust by
Beneficiary, any funds on hand shall be turned over to the assignee and any responsibility of
Beneficiary with respect thereto shall terminate. Each Transfer of the Property shall
automatically transfer to the transferee all rights of Grantor with respect to any funds deposited
hereunder. Upon payment in full of the Secured Obligations, Beneficiary shall promptly refund to
Grantor the remaining balance of any deposits then held by Beneficiary.



(c) If the total deposits held by Beneficiary exceed the amount deemed necessary by
Beneficiary to provide for the payment of such taxes, assessments, premiums and Other Impositions,
such excess shall, provided there is no Event of Default or any event which would constitute an
Event of Default if not cured within the time allowed, be credited by Beneficiary on the next due
installment or installments of such deposits. If at any time the total deposits held by Beneficiary
are less than the amount deemed necessary by Beneficiary to provide for the payment of such taxes,
assessments, premiums and Other Impositions, Grantor shall promptly deposit the deficiency with
Beneficiary after receipt of written demand from Beneficiary.



(d) Notwithstanding the foregoing, Beneficiary shall not require the payment of reserves as
provided in this Section until a delinquency occurs in the payment of such taxes, assessments,
premiums or Other Impositions, or until the occurrence of an Event of Default.



8.20 UCC Statements. Grantor hereby authorizes Beneficiary to file UCC financing
statements to perfect Beneficiary’s security interest in any part of the Property. In addition,
Grantor agrees to sign any and all other documents that Beneficiary deems necessary in its sole
discretion to perfect, protect, and continue Beneficiary’s lien and security interest in the
Property.



8.21 Virginia Law Provisions. Notwithstanding anything contained herein to the
contrary, the following provisions of § 55-60, Code of Virginia, as amended, are made applicable
to this Deed of Trust:




(i) Purchase money;



	 	 	 
	(ii)

(iii)

(iv)

	 	Exemptions waived;

Subject to call upon default;

Renewal or extension permitted;







(v) Substitution of trustee permitted; and




(vi) Any trustee may act.



IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the date first above written.



“Grantor”



G&E HC REIT II BASTIAN SNF, LLC,


a Delaware limited liability company



By: G&E HC REIT II Virginia SNF Portfolio LLC,


a Delaware limited liability company, its sole member



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/ Danny Prosky

	Name:

	 	Danny Prosky






Title: Pres., Chief Operating Officer



ACKNOWLEDGMENT



	 	 	 	 	 
	STATE OF CALIFORNIA

	 	)

) ss:

	COUNTY OF Orange

	 	 	)	 






I Hereby Certify That on this 14th day of September, 2010, before me, the
subscriber, a Notary Public of the State of California, personally appeared Danny Prosky, who
acknowledged himself to be the President and Chief Operating Officer of Grubb & Ellis Healthcare
REIT II, Inc., the General Partner of Grubb & Ellis Healthcare REIT II Holdings LP, the sole member
of G&E HC REIT II Virginia SNF Portfolio LLC, the sole member of the Assignor herein, and did
acknowledge that he as such President and Chief Operating Officer, being authorized so to do,
executed the foregoing instrument for the Assignor for the purposes therein contained, by signing
his name as President and Chief Operating Officer.



As Witness: my hand and notarial seal.



/s/ P.C. Han


P.C. Han


Notary Public


June 25, 2011



	 	 	 
	My commission expires:

	 	     

Notary Public