EX-10.4






WHEN RECORDED, RETURN To:



	 	 	 
	Lea Ann T. Groesser, Esq.

Brownstein Hyatt & Farber, P.C.

410 Seventeenth Street

	 	TO BE RECORDED IN THE

DEED OF TRUST RECORDS OF

DOUGLAS COUNTY, COLORADO






22nd Floor


Denver Colorado 80201



DEED OF TRUST AND SECURITY AGREEMENT

Loan No. 949951




THIS DEED OF TRUST AND SECURITY AGREEMENT (this “Deed of Trust”) is entered into by
HRMED LLC, a Colorado limited liability company, as Grantor (“Grantor”), whose address is
do Gibbons-White Incorporated, 2305 Canyon Boulevard, Suite 200, Boulder, Colorado 80302, to THE
PUBLIC TRUSTEE IN AND FOR DOUGLAS COUNTY, COLORADO (“Trustee”), whose address is 301
Wilcox Street, Castle Rock, Colorado 80104, for the benefit of COLUMN FINANCIAL, INC., a Delaware
corporation, as Beneficiary (“Beneficiary”), whose address is 11 Madison Avenue,
5th Floor, New York, New York 10010-3629, Attn: Edmund Taylor.



WITNESSETH:




Grantor has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does GRANT, BARGAIN,
SELL and CONVEY, unto Trustee, in trust, all of the following described property, whether now
owned or hereafter acquired by Grantor (collectively, the “Property”):




(A) All that certain real property situated in the County of Douglas, State of Colorado,



more particularly described on Exhibit A attached hereto and incorporated herein by this
reference (the “Land”), together with all of the easements, rights, privileges, franchises,
tenements, hereditaments and appurtenances now or hereafter thereunto belonging or in any way
appertaining thereto, and all of the estate, right, title, interest, claim and demand whatsoever
of Grantor therein or thereto, either at law or in equity, in possession or in expectancy, now
owned or hereafter acquired;




(B) All structures, buildings and improvements of every kind and description now or at



any time hereafter located or placed on the Land (the “Improvements”);




(C) All easements, rights-of-way, strips and gores of land, vaults, streets, ways, alleys,



passages, sewer rights, and other emblements now or hereafter located on the Land or under or
above the same or any part or parcel thereof, and all estates, rights, titles, interests,
tenements, and appurtenances, reversions and remainders whatsoever, in any way belonging, relating
or appertaining to the Property or any part thereof; or which hereafter shall in any way belong,
relate or be appurtenant thereto, whether now owned or hereafter acquired by Grantor;




(D) All furniture, furnishings, fixtures, goods, equipment, inventory or personal property



owned by Grantor and now or hereafter located on, attached to or used in or about the Improvements,




1




2


including, but not limited to, all machines, engines, boilers, dynamos, elevators, stokers, tanks,
cabinets, awnings, screens, shades, blinds, carpets, draperies, lawn mowers, and all appliances,
plumbing, heating, air conditioning, lighting, ventilating, refrigerating, disposal and
incinerating equipment, and all fixtures and appurtenances thereto, and such other goods and
chattels and personal property owned by Grantor as are now or hereafter used or furnished in
operating the Improvements, or the activities conducted therein, and all building materials and
equipment hereafter situated on or about the Land or Improvements, and all warranties and
guaranties relating thereto, and all additions thereto and substitutions and replacements therefor
(exclusive of any of the foregoing owned or leased by tenants of space in the Improvements);




(E) All water, water courses, ditches, wells, reservoirs and drains and all water, ditch,



well, reservoir and drainage rights and powers which are appurtenant to, located on, under or above
or used in connection with the Land or the Improvements, or any part thereof, whether decreed or
undecreed, tributary, non-tributary, surface or underground, and together (i) with all utilities,
utility lines, utility commitments, utility capacity, capital recovery charges, impact fees and
other fees paid in connection with same, (ii) reimbursements or other rights pertaining to utility
or utility services provided to the Land and/or Improvements and (iii) the present or future use or
availability of waste water capacity, or other utility facilities to the extent same pertain to or
benefit the Land and/or Improvements, including, without limitation, all reservations of or
commitments or letters covering any such use in the future, whether now existing or hereafter
created or acquired;




(F) All minerals, crops, timber, trees, shrubs, flowers and landscaping features now or



hereafter located on, under or above the Land;




(G) All cash funds, deposit accounts and other rights and evidence of rights to cash, now



or hereafter created or held by Beneficiary pursuant to this Deed of Trust or any other of the Loan
Documents (as hereinafter defined), including, without limitation, all funds now or hereafter on
deposit in the Reserves (as hereinafter defined);



(H) All leases, licenses, tenancies, concessions and occupancy agreements of the Land orthe
Improvements now or hereafter entered into and all rents, royalties, issues, profits, bonus money,
revenue, income, rights and other benefits (collectively, the “Rents" or “Rents and
Profits”) of the Land or the Improvements, or the fixtures or equipment, now or hereafter
arising from the use or enjoyment of all or any portion thereof or from any present or future lease
(including, without limitation, oil, gas and mineral leases), license, tenancy, concession,
occupancy agreement or other agreement pertaining thereto or arising from any of the Contracts (as
hereinafter defined) or any of the General Intangibles (as hereinafter defined) and all cash or
securities (the “Security Deposits”) that secure performance by the tenants, lessees or
licensees, as applicable, of their obligations under any such leases, licenses, concessions or
occupancy agreements, whether said cash or securities are to be held until the expiration of the
terms of said leases, licenses, concessions or occupancy agreements or applied to one or more of
the installments of rent coming due prior to the expiration of said terms, subject, however, to the
provisions contained in Section 1.11 herein below;



All contracts and agreements now or hereafter entered into covering any part of the Land or
the Improvements (collectively, the “Contracts”) and all revenue, income and other benefits
thereof, including, without limitation, management agreements, service contracts, maintenance



7150\39\726732.2


contracts, equipment leases, personal property leases and any contracts or documents relating
to construction on any part of the Land or the Improvements (including plans, specifications,
studies, drawings, surveys, tests, operating and other reports, bonds and governmental approvals)
or to the management or operation of any part of the Land or the Improvements;




(J) All present and future monetary deposits given to any public or private utility with



respect to utility services furnished to any part of the Land or the Improvements;




(K) All present and future funds, accounts, instruments, accounts receivable, documents,



causes of action, claims, general intangibles (including, without limitation, trademarks, trade
names, service marks and symbols now or hereafter used in connection with any part of the Land or
the Improvements, all names by which the Land or the Improvements may be operated or known, all
rights to carry on business under such names, and all rights, interest and privileges which Grantor
has or may have as developer or declarant under any covenants, restrictions or declarations now or
hereafter relating to the Land or the Improvements) and all notes or chattel paper now or hereafter
arising from or by virtue of any transactions related to the Land or the Improvements
(collectively, the “General Intangibles”);




(L) All water taps, sewer taps, certificates of occupancy, permits, special permits, uses,



licenses, franchises, certificates, consents, approvals and other rights and privileges now or
hereafter obtained in connection with the Land or the Improvements and all present and future
warranties and guaranties relating to the Improvements or to any equipment, fixtures, furniture,
furnishings, personal property or components of any of the foregoing now or hereafter located or
installed on the Land or the Improvements;



(M) All building materials, supplies and equipment now or hereafter placed on the Land or in
the Improvements and all architectural renderings, models, drawings, plans, specifications, studies
and data now or hereafter relating to the Land or the Improvements;




(N) All right, title and interest of Grantor in any insurance policies or binders now or



hereafter relating to the Property, including any unearned premiums thereon;




(0) All proceeds, products, substitutions and accessions (including claims and demands



therefor) of the conversion, voluntary or involuntary, of any of the foregoing into cash or
liquidated claims, including, without limitation, proceeds of insurance and condemnation awards;
and




(P) All other or greater rights and interests of every nature in the Land or the



Improvements and in the possession or use thereof and income therefrom, whether now owned or
hereafter acquired by Grantor.




FOR THE PURPOSE OF SECURING:




(1) The debt evidenced by that certain Promissory Note (such Promissory Note, together



with any and all renewals, modifications, amendments, restatements, consolidations, substitutions,
replacements and extensions thereof, is hereinafter referred to as the “Note”) of even date with
this Deed of Trust, made by Grantor and payable to the order of Beneficiary in the original
principal

3


amount of FOUR MILLION NINE HUNDRED SIXTY -EIGHT THOUSAND SEVEN HUNDRED FIFTY AND NO/100
DOLLARS ($4,968,750.00) (the “Loan" or the “Loan Amount”), together with interest
and any fees as therein provided which, if not accelerated due to a default or other circumstance
permitting acceleration to Beneficiary, the remaining principal balance of the Note and all accrued
and unpaid interest thereon shall be due and payable in full on November 11, 2012;




(2) The full and prompt payment and performance of all of the provisions, agreements,



covenants and obligations herein contained and contained in any other agreements, documents or
instruments now or hereafter evidencing, securing or otherwise relating to the indebtedness
evidenced by the Note (the Note, this Deed of Trust, the Assignment (as hereinafter defined), and
such other agreements, documents and instruments, together with any and all renewals,
modifications, amendments, restatements, consolidations, substitutions, replacements, and
extensions and modifications thereof, are hereinafter collectively referred to as the “Loan
Documents”) and the payment of all other sums therein covenanted to be paid, including,
without limitation, any applicable yield maintenance premiums or prepayment fees;




(3) Any and all future or additional advances (whether or not obligatory) made by



Beneficiary to protect or preserve the Property or the lien or security interest created hereby on
the Property, or for taxes, assessments or insurance premiums as hereinafter provided or for
performance of any of Grantor’s obligations hereunder or under the other Loan Documents or for any
other purpose provided herein or in the other Loan Documents (whether or not the original Grantor
remains the owner of the Property at the time of such advances) together with interest thereon at
the Default Interest Rate (as defined in the Note); and




(4) Any and all other indebtedness now owing or which may hereafter be owing by



Grantor to Beneficiary, however and whenever incurred or evidenced, whether express or implied,
direct or indirect, absolute or contingent, or due or to become due, and all renewals,
modifications, amendments, restatements, consolidations, substitutions, replacements and extensions
thereof.



(All of the sums referred to in Subsections (1) through (4) above are herein sometimes
referred to as the “secured indebtedness" or the “indebtedness secured hereby”).



TO HAVE AND TO HOLD the Property unto Trustee, its successors and assigns forever, and Grantor
does hereby bind itself, its successors and assigns, to WARRANT AND FOREVER DEFEND the title to the
Property unto Trustee against every person whomsoever lawfully claiming or to claim the same or any
part thereof for the purposes and uses herein set forth;



PROVIDED, HOWEVER, that if the principal and interest and all other sums due or to become due
under the Note, including, without limitation, any prepayment fees required pursuant to the terms
of the Note, shall have been paid at the time and in the manner stipulated therein and all other
sums payable hereunder and all other indebtedness secured hereby shall have been paid and all other
covenants contained in the Loan Documents shall have been performed, then, in such case, this Deed
of Trust shall be satisfied and the estate, right, title and interest of Beneficiary in the
Property shall cease, and upon payment to Beneficiary of all costs and expenses incurred for the
preparation of

4


the release hereinafter referenced and all recording costs if allowed by law, Beneficiary
shall satisfy and release this Deed of Trust and the lien hereof by proper instrument.



ARTICLE I

COVENANTS OF GRANTOR




For the purpose of further securing the indebtedness secured hereby and for the protection of
the security of this Deed of Trust, for so long as the indebtedness secured hereby or any part
thereof remains unpaid, Grantor represents, covenants and agrees as follows:




1.1 Warranties of Grantor. Grantor, for itself and its successors and assigns,
does hereby



represent, warrant and covenant to and with Beneficiary, its successors and assigns, that:




(a) Grantor has good and marketable fee simple title to the Property, subject only



to those matters expressly set forth on Exhibit B attached hereto and by this reference
incorporated herein (the “Permitted Exceptions”), and has full power and lawful authority
to grant, bargain, sell, convey, assign, transfer and encumber its interest in the Property in the
manner and form hereby done or intended. None of the Permitted Exceptions materially interferes
with the security intended to be provided by this Deed of Trust, the current primary use of the
Property or the current ability of the Property to generate income sufficient to service the Loan.
Grantor will preserve its interest in and title to the Property and will forever warrant and
defend the same to Beneficiary against any and all claims whatsoever and will forever warrant and
defend the validity and priority of the lien and security interest created herein against the
claims of all persons and parties whomsoever, subject to the Permitted Exceptions. The foregoing
warranty of title shall survive the foreclosure, exercise of any power of sale or other
enforcement of this Deed of Trust (whether by power of sale or otherwise) and shall inure to the
benefit of and be enforceable by Beneficiary in the event Beneficiary acquires title to the
Property pursuant to any foreclosure, exercise of any power of sale or otherwise; provided,
however, in no way is the foregoing warranty of title intended to provide Beneficiary with rights
beyond those provided to it under Colorado law;




(b) No bankruptcy or insolvency proceedings are pending or contemplated by



Grantor or, to the best knowledge of Grantor, against Grantor or by or against any endorser,
cosigner or guarantor of the Note;




(c) . To the best of Grantor’s present, actual knowledge, all reports, certificates,



affidavits, statements and other data furnished by Grantor to Beneficiary in connection with the
Loan evidenced by the Note are true and correct in all material respects and do not omit to state
any fact or circumstance necessary to make the statements contained therein not misleading;




(d) The execution, delivery and performance of this Deed of Trust, the Note and



all of the other Loan Documents do not contravene, result in a breach of or constitute (upon
the giving of notice or the passage of time or both) a default under the partnership agreement,
certificate or articles of incorporation or other organizational documents of Grantor or any
contract or agreement of any nature to which Grantor is a party or by which Grantor or any of its
property may be bound;




(e) Grantor is not required to obtain any consent, approval or
authorization from



or to file any declaration or statement with, any governmental authority or agency in connection
with or as a condition to the execution, delivery or performance of this Deed of Trust, the Note
or the other Loan Documents which has not been so obtained or filed;



Grantor has obtained or made all necessary (i) consents, approvals and authorizations and
registrations and filings of or with all governmental authorities or agencies and (ii) consents,
approvals, waivers and notifications of partners, stockholders, members, creditors, lessors and
other non-governmental persons and/or entities, in each case, which are required to be obtained or
made by Grantor in connection with the execution and delivery of, and the performance by Grantor
of its obligations under, the Loan Documents;




(g) Grantor is not an “investment company,” or a company “controlled” by an



“investment company,” as such terms are defined in the Investment Company Act of 1940, as amended;




(h) No part of the proceeds of the indebtedness secured hereby will be used for the



purpose of purchasing or acquiring any “margin stock” within the meaning of Regulations T, U or X
of the Board of Governors of the Federal Reserve System or for any other purpose which would be
inconsistent with such Regulations T, U or X or any other Regulations of such Board of Governors,
or for any purpose prohibited by legal requirements or by the terms and conditions of the Loan
Documents;




(i) Grantor and, if Grantor is a partnership, any general partner of Grantor, has



filed all federal, state and local tax returns required to be filed and has paid or made adequate
provision for the payment of all federal, state and local taxes, charges and assessments,
including sales and payroll taxes, payable by Grantor and its general partners, if any. Grantor
and its general partners, if any, believe that their respective tax returns properly reflect the
income and taxes of Grantor and said general partners, if any, for the periods covered thereby,
subject only to reasonable adjustments required by the Internal Revenue Service or other
applicable tax authority upon audit;




(j) Grantor is not an “employee benefit plan,” as defined in Section 3(3) of the



Employee Retirement Income Security Act of 1974, as amended (“ERISA”), which is subject to Title I
of ERISA and the assets of Grantor do not constitute “plan assets” of one or more such plans
within the meaning of 29 C.F.R. Section 2510.3-101;




(k) To the best of Grantor’s present, actual knowledge the Land and the



Improvements and the intended use thereof by Grantor comply with all applicable restrictive
covenants, zoning ordinances, subdivision and building codes, flood disaster laws, applicable
health and environmental laws and regulations and all other ordinances, orders or requirements
issued by any state, federal or municipal authorities having or claiming jurisdiction over the
Property. Based on the most recent tax bill for the Property, the Land and Improvements constitute
a separate tax parcel for purposes of ad valorem taxation. To the best of Grantor’s present,
actual knowledge, the Land and Improvements do not require any rights over, or restrictions
against, other property in order to comply with any of the aforesaid governmental ordinances,
orders or requirements;



6





(1) All utility services necessary and sufficient for the full use,
occupancy,



operation and disposition of the Land and the Improvements for their intended purposes are
available to the Property, including water, storm sewer, sanitary sewer, gas, electric, cable and
telephone facilities, through public rights-of-way or perpetual private easements reflected in the
title insurance policy insuring the lien of this Deed of Trust and approved by Beneficiary (the
“Title Insurance Policy”);




(m) To the best of Grantor’s present, actual knowledge, all streets, roads,



highways, bridges and waterways necessary for access to and full use, occupancy, operation and
disposition of the Land and the Improvements have been completed, have been dedicated to and
accepted by the appropriate municipal authority and are open and available to the Land and the
Improvements without further condition or cost to Grantor;




(n) To the best of Grantor’s present, actual knowledge, all curb cuts, driveways



and traffic signals shown on the survey delivered to Beneficiary prior to the execution and
delivery of this Deed of Trust are existing and have been fully approved by the appropriate
governmental authority;




(o) There are no judicial, administrative, mediation or arbitration actions, suits
or



proceedings pending or to the best of Grantor’s present, actual knowledge, threatened against or
affecting Grantor, (and, if Grantor is a partnership, any of its general partners or if Grantor is
a limited liability company, any member or manager of Grantor) or the Property which, if adversely
determined, would have a material adverse effect on (a) the Property, (b) the business, prospects,
profits, operations or condition (financial or otherwise) of Grantor, (c) the enforceability,
validity, perfection or priority of the lien of any Loan Document, or (d) the ability of Grantor
to perform any obligations under any Loan Document (collectively, a “Material Adverse
Effect”);




(p) As of the date of this Deed of Trust (i) the Property is free from delinquent



water charges, sewer rents, taxes and assessments, and from unrepaired damage caused by fire,
flood, accident or other casualty, and (ii) no part of the Land or the Improvements has been taken
in condemnation, eminent domain or like proceeding nor is any such proceeding pending or to
Grantor’s knowledge and belief, threatened or contemplated;




(q) Grantor possesses all franchises, patents, copyrights, trademarks, trade names,



licenses and permits adequate for the conduct of its business substantially as now conducted;




(r) Except as set forth in the Title Insurance Policy insuring the lien of this Deed



of Trust, no improvements on adjoining properties encroach upon the Property. To the best of
Grantor’s present, actual knowledge, based solely on the Engineering Report prepared by ABCO
Engineering Corp. and dated September 25, 2002, the Improvements are structurally sound, in good
repair and free of defects in materials and workmanship. To the best of Grantor’s present, actual
knowledge, based solely on the Engineering Report prepared by ABCO Engineering Corp. and dated
September 25, 2002, all major building systems located within the Improvements, including, without
limitation, the heating and air conditioning systems and the electrical and plumbing systems, are
in good working order and condition;



7




(s) 7150\39\726732.2





Except as disclosed in writing by Grantor to Beneficiary prior to the date



hereof, there are no security agreements or financing statements affecting any of the Property
other than the security agreements and financing statements created in favor of Beneficiary;




(t) Grantor has delivered a true, correct and complete schedule (the “Rent
Roll”)



of all leases affecting the Property (individually an “Existing Lease" and collectively
the “Existing Leases”) as of the date hereof, which to the best of Grantor’s present,
actual knowledge accurately and completely sets forth in all material respects for each such
Existing Lease, the following: the name of the tenant, the lease expiration date, extension and
renewal provisions, the base rent payable, and the Security Deposit held thereunder. Grantor is in
compliance with all legal requirements relating to such Security Deposits;




(u) To the best of Grantor’s present, actual knowledge, no tenant under any



Existing Lease has, as of the date hereof, paid rent more than thirty (30) days in advance, and
the rents under such Existing Leases have not been waived, released, or otherwise discharged or
compromised;




(v) To the best of Grantor’s present, actual knowledge, the Property is free and



clear of any mechanics’ or materialmen’s liens or liens in the nature thereof, and no rights are
outstanding that under law would give rise to any such liens, any of which liens are or may be
prior to, or equal with, the lien of this Deed of Trust, except those which are insured against by
the Title Insurance Policy;




(w) No Existing Lease or Contract or easement, right of way, permit or declaration



(collectively, “Property Agreements”) provides any party with the right to obtain a lien
or encumbrance upon the Property superior to the lien of this Deed of Trust;




(x) Grantor has delivered to Beneficiary true, correct and complete copies of all



Property Agreements and to the best of Grantor’s present, actual knowledge no default exists or
would exist, with the passing of time, or the giving of notice, or both, under any Property
Agreement which would, in the aggregate, have a Material Adverse Effect;




(y) To the best actual knowledge of Grantor, no offset or any right of offset exists



respecting continued contributions to be made by any party to any Property Agreement except as
expressly set forth herein. Except as previously disclosed to Beneficiary in writing, no material
exclusions or restrictions on the utilization, leasing or improvement of the Property (including
non-compete agreements) exists in any Property Agreement;




(z) To the best of Grantor’s present, actual knowledge all work, if any, to be



performed by Grantor under each of the Property Agreements has been substantially performed, all
contributions to be made by Grantor to any party to such Property Agreements have been made, and
all other conditions to such party’s obligations thereunder have been satisfied;



(aa) To the best of Grantor’s present, actual knowledge, the Property is taxed separately
without regard to any other real estate and constitutes a legally subdivided lot under all
applicable legal requirements (or, if not subdivided, no subdivision or platting of the Property
is



8




7150\39\726732.2




9



required under applicable legal requirements), and for all purposes may be mortgaged, conveyed or
otherwise dealt with as an independent parcel;



(bb) The Property forms no part of any property owned, used or claimed by Grantor as a
residence or business homestead and is not exempt from forced sale under the laws of the State in
which the Property is located. Grantor hereby disclaims and renounces each and every claim to all
or any portion of the Property as a homestead and waives any homestead exemption relating to the
Property. The Loan evidenced by the Loan Documents is made and transacted solely for business,
investment, commercial or other similar purposes;



(cc) There are no outstanding options or rights of first offer or refusal to purchase all or
any portion of the Property or Grantor’s interest therein or ownership thereof;



(dd) There are no actions, suits, proceedings or orders of record or of which Grantor has
actual notice, and, to the best of Grantor’s actual knowledge, there are no inquiries or
investigations, pending or threatened, in any such case against, involving or affecting the
Property, at law or in equity, or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or foreign, alleging the
violation of any federal, state or local law, statute, ordinance, rule or regulation relating to
Environmental Laws. Furthermore, Grantor has not received any written claim, notice or opinion that
the ownership or operation of the Property violates any federal, state or local law, statute,
ordinance, rule, regulation, decree, order, and/or permit relating to Environmental Laws, and, to
the best of Grantor’s knowledge, no valid basis for any proceeding, action or claim of such nature
exists;



(ee) Each Existing Lease constitutes the legal, valid and binding obligation of Grantor and,
to the best of Grantor’s knowledge and belief, is enforceable against the tenant thereof;




(ff) To the best of Grantor’s present, actual knowledge, all work to be performed



by Grantor under the Existing Leases has been substantially performed, all contributions to be made
by Grantor to the tenants thereunder have been made and all other conditions precedent to each such
tenant’s obligations thereunder have been satisfied;



(gg) Each tenant under an Existing Lease has entered into occupancy of its demised




premises;



(hh) To the best of Grantor’s actual knowledge and belief, each tenant is free from
bankruptcy, reorganization or arrangement proceedings or a general assignment for the benefit of
creditors;




(ii) Except as previously disclosed in writing to Beneficiary, there are no



brokerage fees or commissions payable by Grantor with respect to the leasing of the space at the
Property, and there are no management fees payable by Grantor with respect to the management of the
Property; and




(jj) The representations and warranties contained in this Deed of Trust, or the



review and inquiry made on behalf of the Grantor therefor, have all been made by persons having the




7150\39\726732.2




requisite expertise and knowledge to provide such representations and warranties. No
statement or fact made by or on behalf of Grantor in this Deed of Trust or in any certificate,
document or schedule furnished to Beneficiary pursuant hereto, contains any untrue statement of a
material fact or omits to state any material fact necessary to make statements contained therein
or herein not misleading (which may be to Grantor’s best knowledge where so provided herein).
There is no fact presently known to Grantor which has not been disclosed to Beneficiary which
would have a Material Adverse Effect.




1.2 Defense of Title. If, while this Deed of Trust is in force, the title to the
Property or



the interest of Beneficiary therein shall be the subject, directly or indirectly, of any action at
law or in equity, or be attached directly or indirectly, or endangered, clouded or adversely
affected in any manner, Grantor, at Grantor’s expense, shall take all necessary and proper steps
for the defense of said title or interest, including the employment of counsel reasonably approved
by Beneficiary, the prosecution or defense of litigation, and the compromise or discharge of
claims made against said title or interest.




1.3 Performance of Obligations. Grantor shall pay when due the principal of and the



interest on the indebtedness secured hereby including all charges, fees and other sums required to
be paid by Grantor as provided in the Loan Documents, and shall observe, perform and discharge all
obligations and conditions, and comply with all prohibitions, covenants and agreements to be
observed, performed or discharged by Grantor set forth in the Loan Documents in accordance with
their terms. In the event that Beneficiary determines that Grantor is not adequately performing
any of its obligations under this Deed of Trust or under any of the other Loan Documents,
Beneficiary may, without limiting or waiving any other rights or remedies of Beneficiary
hereunder, take such steps with respect thereto as Beneficiary shall deem necessary or proper and
any and all costs and expenses reasonably incurred by Beneficiary in connection therewith,
together with interest thereon at the Default Interest Rate (as defined in the Note) from the date
incurred by Beneficiary until actually paid by Grantor, shall be immediately paid by Grantor on
demand and shall be secured by this Deed of Trust and by all of the other Loan Documents securing
all or any part of the indebtedness evidenced by the Note.




1.4 Insurance. Grantor shall, at Grantor’s expense, maintain in force and effect on
the



Property at all times while this Deed of Trust continues in effect the following insurance:




(a) “All-risk” coverage insurance against loss or damage to the Property from



all-risk perils. The amount of such insurance shall be not less than one hundred percent (100%) of
the full replacement cost of the Improvements, furniture, furnishings, fixtures, equipment and
other items (whether personal or fixtures) included in the Property and owned by Grantor from time
to time, without reduction for depreciation. The determination of the replacement cost amount
shall be adjusted annually to comply with the requirements of the insurer issuing such coverage
or, at Beneficiary’s election, by reference to such indexes, appraisals or information as
Beneficiary determines in its reasonable discretion. Full replacement cost, as used herein, means,
with respect to the Improvements, the cost of replacing the Improvements without regard to
deduction for depreciation, exclusive of the cost of excavations, foundations and footings below
the lowest basement floor, and means, with respect to such furniture, furnishings, fixtures,
equipment and other items, the cost of replacing the same. Each policy or policies shall contain a
replacement cost



10




7150\39\726732.2




endorsement and either an agreed amount endorsement (to avoid the operation of any
co-insurance provisions) or a waiver of any co-insurance provisions, all subject to Beneficiary’s
reasonable approval.




(b) Commercial general liability insurance for personal injury, bodily injury,
death



and property damage liability in amounts not less than $5,000,000.00 per occurrence, $6,000,000.00
aggregate (inclusive of umbrella coverage) or such lesser amount as Beneficiary in Beneficiary’s
sole discretion may accept, for bodily injury, personal injury and property damage. Beneficiary
hereby retains the right to periodically review the amount of said liability insurance being
maintained by Grantor and to require an increase in the amount of said liability insurance should
Beneficiary deem an increase to be reasonably necessary to conform to industry standards for
comparable office buildings in Douglas County, Colorado.




(c) Insurance covering the major components of the central heating, air



conditioning and ventilating systems, boilers, other pressure vessels, high pressure piping and
machinery, elevators and escalators, if any, and other similar equipment installed in the
Improvements, in an amount equal to one hundred percent (100%) of the full replacement cost of the
Improvements which policies shall insure against physical damage to and loss of occupancy and use
of the Improvements arising out of an accident or breakdown covered thereunder.




(d) If the Land or any part thereof is identified by the Secretary of Housing and



Urban Development as being situated in an area now or subsequently designated as having special
flood hazards (including, without limitation, those areas designated as Zone A or Zone V), flood
insurance in an amount equal to one hundred percent (100%) of the replacement cost of the
Improvements or the maximum amount of flood insurance available, whichever is the lesser.




(e) During the period of any construction on the Land or renovation or alteration



of the Improvements, a so-called “Builder’s All-Risk Completed Value” or “Course of Construction”
insurance policy in non-reporting form for any Improvements under construction, renovation or
alteration in an amount approved by Beneficiary and Worker’s Compensation Insurance covering all
persons engaged in such construction, renovation or alteration.




(f) Rental value or rental income insurance in amounts sufficient to compensate



Grantor for all Rents and Profits during a period of not less than one (1) year in which the
Property may be damaged or destroyed.




(g) Law and ordinance coverage in an amount satisfactory to Beneficiary if the



Property, or any part thereof, shall constitute a nonconforming use or structure under applicable
zoning ordinances, sub-division and building codes or other laws, ordinances, orders and
requirements.




(h) Such other insurance on the Property or on any replacements or substitutions



thereof or additions thereto as may from time to time be reasonably required by Beneficiary
against other insurable hazards or casualties which at the time are commonly insured against in
the case of property similarly situated, due regard being given to the height and type of
buildings, their construction, location, use and occupancy.




11



12



All such insurance shall (i) be issued by companies approved by Beneficiary and licensed to
do business in the state where the Property is located, with a claims paying ability rating of “A”
or better by Standard & Poor’s Rating Services, a division of The McGraw Hill Companies, Inc.,
(ii) contain the complete address of the Real Estate (or a complete legal description), (iii) be
for a term of at least one year, (iv) contain deductibles no greater than $10,000 or as otherwise
required by Beneficiary, and (v) be subject to the reasonable approval of Beneficiary as to
insurance companies, amounts, content, forms of policies, method by which premiums are paid and
expiration dates.



Grantor shall as of the date hereof deliver to Beneficiary evidence that said insurance
policies have been paid current as of the date hereof and original certificates of insurance
signed by an authorized agent evidencing such insurance satisfactory to Beneficiary. Grantor shall
renew, except to the extent provision is actually made therefor pursuant to Section 1.6 of this
Deed of Trust, all such insurance and deliver to Beneficiary certificates evidencing such renewals
at least thirty (30) days before any such insurance shall expire. Without limiting the required
endorsements to insurance policies, Grantor further agrees that all such policies shall provide
that proceeds thereunder shall be payable to Beneficiary, its successors and assigns, pursuant and
subject to a mortgagee clause (without contribution) of standard form attached to, or otherwise
made a part of, the applicable policy and that Beneficiary, its successors and assigns, shall be
named as an additional insured under all liability insurance policies. Grantor further agrees that
all such insurance policies: (i) shall provide for at least thirty (30) days’ prior written notice
to Beneficiary prior to any cancellation or termination thereof and prior to any modification
thereof which materially affects the interest of Beneficiary; (ii) shall contain an endorsement or
agreement by the insurer that any loss shall be payable to Beneficiary in accordance with the
terms of such policy notwithstanding any act or negligence of Grantor which might otherwise result
in forfeiture of such insurance; and (iii) shall either name Beneficiary as an additional insured
or waive all rights of subrogation against Beneficiary. The delivery to Beneficiary of the
insurance policies or the certificates of insurance as provided above shall constitute an
assignment of all proceeds payable under such insurance policies by Grantor to Beneficiary as
further security for the indebtedness secured hereby. In the event of foreclosure of this Deed of
Trust, or other transfer of title to the Property in extinguishment in whole or in part of the
secured indebtedness, all right, title and interest of Grantor in and to all proceeds payable
under such policies then in force concerning the Property shall thereupon vest in the purchaser at
such foreclosure, or in Beneficiary or other transferee in the event of such other transfer of
title. Approval of any insurance by Beneficiary shall not be a representation of the solvency of
any insurer or the sufficiency of any amount of insurance. In the event Grantor fails to provide,
maintain, keep in force or deliver and furnish to Beneficiary the policies of insurance required
by this Deed of Trust or evidence of their renewal as required herein, Beneficiary may, but shall
not be obligated to, procure such insurance and Grantor shall pay all amounts advanced by
Beneficiary, together with interest thereon at the Default Interest Rate (as defined in the Note)
from and after the date advanced by Beneficiary until actually repaid by Grantor, promptly upon
demand by Beneficiary. Any amounts so advanced by Beneficiary, together with interest thereon,
shall be secured by this Deed of Trust and by all of the other Loan Documents securing all or any
part of the indebtedness evidenced by the Note. Beneficiary shall not be responsible for nor incur
any liability for the insolvency of the insurer or other failure of the insurer to perform, even
though Beneficiary has caused the insurance to be, placed with the insurer after failure of
Grantor to furnish such insurance.




1.5 Payment of Taxes. Grantor shall pay or cause to be paid, except to the
extent



provision is actually made therefor pursuant to Section 1.6 of this Deed of Trust, all
taxes and assessments which are or may become a lien on the Property or which are assessed against
or imposed upon the Property. Grantor shall furnish Beneficiary with receipts (or if receipts are
not immediately available, with copies of canceled checks evidencing payment with receipts to
follow promptly after they become available) showing payment of such taxes and assessments at
least fifteen (15) days prior to the applicable delinquency date therefor. Notwithstanding the
foregoing, Grantor may in good faith, by appropriate proceedings and upon notice to Beneficiary,
contest the validity, applicability or amount of any asserted tax or assessment so long as (a)
such contest is diligently pursued, (b) Beneficiary determines, in its subjective opinion, that
such contest suspends the obligation to pay the tax or assessment and that nonpayment of such tax
or assessment will not result in the sale, loss, forfeiture or diminution of the Property or any
part thereof or any interest of Beneficiary therein, and (c) prior to the earlier of the
commencement of such contest or the delinquency date of the asserted tax or assessment, Grantor
deposits in the Impound Account (as hereinafter defined) an amount determined by Beneficiary to be
adequate to cover the payment of such tax or assessment and a reasonable additional sum to cover
possible interest, costs and penalties; provided, however, that Grantor shall promptly
cause to be paid any amount adjudged by a court of competent jurisdiction to be due, with all
interest, costs and penalties thereon, promptly after such judgment becomes final; and
provided further that in any event each such contest shall be concluded and the taxes,
assessments, interest, costs and penalties shall be paid prior to the date any writ or order is
issued under which the Property may be sold, lost or forfeited.




1.6 Tax and Insurance Impound Account. Grantor shall establish and maintain at all



times while this Deed of Trust continues in effect an impound account (the “Impound Account”)
with Beneficiary for payment of real estate taxes and assessments and insurance on the
Property and as additional security for the indebtedness secured hereby. Grantor shall deposit in
the Impound Account an amount determined by Beneficiary to be sufficient (when added to the
monthly deposits described herein) to pay the next due annual installment of real estate taxes and
assessments on the Property at least one (1) month prior to the delinquency date thereof (if paid
in one installment) and the next due annual insurance premiums with respect to the Property at
least one (1) month prior to the due date thereof (if paid in one installment). Commencing on the
first monthly payment date under the Note and continuing thereafter on each monthly payment date
under the Note, Grantor shall pay to Beneficiary, concurrently with the monthly payment due under
the Note, deposits in an amount equal to one-twelfth (1/12) of the amount of the annual real
estate taxes and assessments that will next become due and payable on the Property, plus
one-twelfth (1/12) of the amount of the annual premiums that will next become due and payable on
insurance policies which Grantor is required to maintain hereunder, each as estimated and
determined by Beneficiary in its reasonable judgment. So long as no default hereunder or under the
other Loan Documents has occurred and is continuing, all sums in the Impound Account shall be held
by Beneficiary in the Impound Account to pay said taxes, assessments and insurance premiums in one
installment before the same become delinquent. Grantor shall be responsible for ensuring the
receipt by Beneficiary, at least thirty (30) days prior to the respective due date for payment
thereof, of all bills, invoices and statements for all taxes, assessments and insurance premiums
to be paid from the Impound Account, and so long as no default hereunder or under the other Loan
Documents has occurred and is continuing, Beneficiary shall pay the governmental authority or
other party entitled thereto directly to the extent funds are




13



available for such purpose in the Impound Account. In making any payment from the Impound
Account, Beneficiary shall be entitled to rely on any bill, statement or estimate procured from
the appropriate public office or insurance company or agent without any inquiry into the accuracy
of such bill, statement or estimate and without any inquiry into the accuracy, validity,
enforceability or contestability of any tax, assessment, valuation, sale, forfeiture, tax lien or
title or claim thereof. No interest on funds contained in the Impound Account shall be paid by
Beneficiary to Grantor and any interest or other earnings on funds deposited in the Impound
Account shall be solely for the account of Beneficiary. If the total funds in the Impound Account
shall exceed the amount of payments actually applied by Beneficiary for the purposes of the
Impound Account, such excess may be credited by Beneficiary on subsequent payments to be made
hereunder or, at the option of Beneficiary, refunded to Grantor. If, however, the Impound Account
shall not contain sufficient funds to pay the sums required when the same shall become due and
payable, Grantor shall, within ten (10) days after receipt of written notice thereof, deposit with
Beneficiary the full amount of any such deficiency.




1.7 Tenant Improvements and Leasing Commissions Reserve. As additional security
for



the indebtedness secured hereby, Grantor shall establish and maintain at all times while this Deed
of Trust continues in effect a reserve (the “TILC Reserve”) with Beneficiary for the
payment of costs and expenses incurred by Grantor for Tenant Improvements and Leasing Commissions.
All such sums, together with any interest thereon, are hereinafter collectively referred to as the
“Funds”. As used herein, the term “Tenant Improvements" shall mean construction or
modification of improvements on or installation of fixtures or equipment in the Property as
required to be performed by Grantor pursuant to the terms of any lease which is hereafter approved
or, if such lease does not require approval by Beneficiary, is hereafter entered into by Grantor
and tenant pursuant to Section 1.12 hereof (“Approved Lease”). As used herein, the
term “Leasing Commissions" shall mean reasonable and customary commissions paid to a real
estate broker licensed in the state where the Property is located in connection with an Approved
Lease, pursuant to commission agreements containing such terms and provisions including, without
limitation, as to the timing of the payment of the commission, as are then prevailing between
third party, unaffiliated owners and brokers for comparable leases of space at properties similar
to the Property in the market area in which the Property is located.




(a) Deposits Into the TILC Reserve/Interest on Funds. Commencing with the
first



monthly payment due under the Note and continuing thereafter on each monthly payment date under
the Note, Grantor shall pay to Beneficiary, concurrently with and in addition to the monthly
payment due under the Note and until the Note and all other indebtedness secured hereby is fully
paid and performed, a deposit to the TILC Reserve in a monthly amount equal to $3,600.00 until
such time as the total of $150,000 is accumulated in the TILC Reserve. In addition, Grantor shall
deposit into the TILC Reserve any amounts paid to Grantor under leases containing lease
termination options in favor of tenants thereunder, in connection with the exercise of such
tenant’s termination option, other than amounts paid for rent and other charges with respect to
periods prior to the lease termination date. So long as no default hereunder or under the other
Loan Documents has occurred and is continuing (beyond any grace period applicable to such default)
all sums in the TILC Reserve shall be held by Beneficiary in the TILC Reserve to pay and/or
reimburse Grantor for the costs and expenses of Tenant Improvements and for paying Leasing
Commissions as herein set forth. Interest




14



on the funds contained in the TILC Reserve shall be credited to Grantor as provided in
Section 4.28 hereof.




(b) Disbursements from the TILC Reserve. So long as no default hereunder or



under the other Loan Documents has occurred and is continuing (beyond any grace period applicable
to such default), and to the extent Funds are available for such purpose, Beneficiary shall,
within ten (10) days after receipt of a written request from Grantor specifying the amount
requested and the applicable Tenant Improvements or Leasing Commissions to be paid for with the
requested Funds (“Disbursement Request”), release to Grantor Funds in the amount of the
Disbursement Request; subject, however, to the following conditions precedent. Beneficiary shall
not be required to make advances from the TILC Reserve more frequently than once in any thirty
(30) day period. In making any payment from the TILC Reserve, Beneficiary shall be entitled to
rely on such request from Grantor, and on any bill, statement, or estimate from any third party,
without any inquiry into the accuracy, validity or contestability of any such amount.




(i) With respect to a Disbursement Request to pay for Tenant




Improvements, Grantor shall provide evidence reasonably satisfactory to Beneficiary
(including, if requested by Beneficiary, access to the Property by Beneficiary and/or an
architect and/or an engineer specified by Beneficiary for the purpose of inspecting the
work done, at Grantor’s expense) that the Tenant Improvements, or such portion thereof, for
which the Funds are being requested have been completed in accordance with Section
1.7(c) below. Grantor shall submit to Beneficiary copies of invoices for which Funds
are being requested, and if required by Beneficiary, shall also submit waivers of lien from
the general contractor or subcontractor(s) who have performed the work for which Funds are
being requested. Grantor shall execute and deliver to Beneficiary a certificate (in form
and substance reasonably satisfactory to Beneficiary) that the Tenant Improvements covered
by the applicable Disbursement Request comply with, and have fully satisfied, the terms and
provisions of  Section 1.7(c) below. Grantor shall provide Beneficiary with a copy
of any and all applicable permanent certificates of occupancy and other governmental
permits, if any be required, issued by applicable governmental authorities with respect to
the Tenant Improvements, which certificates and permits allow the tenant to open for
business as contemplated under such lease. Grantor shall provide such additional documents,
certificates and affidavits as Lender may reasonably request.




(ii) With respect to the final Disbursement Request relative to any




Approved Lease, Grantor shall provide Beneficiary with (A) an original estoppel certificate
executed by the tenant under the Approved Lease for which such request relates, stating
that such tenant has accepted the Tenant Improvements (subject to minor punchlist items),
and has occupied the space covered by the Tenant Improvements and that there are no
defaults under such lease (nor does there exist any event or conditions, which with the
passage of time or the giving of notice, or both, could result in such a default), (B) if
required by Beneficiary, an original subordination, non-disturbance and attomment agreement
in form acceptable to Beneficiary executed by the tenant under the Approved Lease in favor
of Beneficiary, (C) evidence of payment of rent by the tenant under the Approved Lease, and
(D) if required by the local governmental jurisdiction, certificates of occupancy or
comparable local certificates or permits with respect to any Tenant Improvements.




15



(iii) 16




With respect to a Disbursement Request to pay any portion of the Leasing Commissions,
Grantor shall provide evidence as reasonably requested by Beneficiary that such Leasing
Commissions are then due and payable or have been properly paid, and such additional
documents, certificates and affidavits as Lender may reasonably request.




(iv) Notwithstanding any provision of this Section 1.7 to the contrary,




Funds disbursed with respect to any Approved Lease (i) for Tenant Improvements shall be an
amount not to exceed, under any circumstances, the reasonable costs and expenses actually
incurred by Grantor therefore; and (ii) for Leasing Commissions shall be an amount not to
exceed, under any circumstances, the commission actually incurred by Grantor therefore
which is reasonable and customary for a licensed real estate broker in the market area in
which the Property is located.




(v) In the event a default exists hereunder, then the TILC Reserve may be




applied by Beneficiary, in its reasonable discretion, toward payments due, owing and unpaid
for the Property and/or to cure or reduce the default then existing, prior to payment of
any Disbursement Request by Grantor hereunder. In the event that the reserve is used to
reduce or cure a default, then Grantor agrees to replenish the reserve account within 30
days thereafter, and the failure to replenish the reserve account would be an event of
default hereunder.




(c) Grantor shall construct and complete all Tenant Improvements within the time



periods and as required by, and in accordance with, the Approved Leases. Grantor or tenant shall
pay for and obtain or cause to be paid for and obtained all permits, licenses and approvals
required by all applicable laws with regard to the Tenant Improvements, whether necessary for
commencement, completion, use or otherwise. Grantor shall perform or cause to be performed all work
in connection with the Tenant Improvements in a good and workmanlike manner, in compliance with all
applicable laws (including, without limitation, any and all applicable life safety laws,
environmental laws and laws for the handicapped and/or disabled) and, with respect only to those
leases requiring Beneficiary approval, with the plans and specifications approved (in writing) by
Beneficiary covering the same (which approval shall not be unreasonably withheld or delayed), which
performance by Grantor shall be without regard to the sufficiency of the Funds. Grantor covenants
and agrees that Tenant Improvements shall be constructed, installed or completed, as applicable,
free and clear of any and all liens (including mechanic’s, materialman’s or other liens), claims
and encumbrances whatsoever.




1.8 Security Interest in Reserves.




(a) As additional security for the payment and performance by Grantor of all



duties, responsibilities and obligations under the Note and the other Loan Documents, Grantor
hereby unconditionally and irrevocably assigns, conveys, pledges, mortgages, transfers, delivers,
deposits, sets over and confirms unto Beneficiary, and hereby grants to Beneficiary a security
interest in all sums on deposit or due under this Deed of Trust and the other Loan Documents
including, without limitation, (i)the Impound Account, the TILC Reserve and any other reserve, if
any, set forth


on Exhibit C attached hereto and made a part hereof (collectively, the
“Reserves”), (ii) the accounts into which the Reserves have been deposited, (iii) all
insurance on said accounts, (iv) all accounts, contract rights and general intangibles or other
rights and interests pertaining thereto, (v) all sums now or hereafter therein or represented
thereby, (vi) all replacements, substitutions or proceeds thereof, (vii) all instruments and
documents now or hereafter evidencing the Reserves or such accounts, (viii) all powers, options,
rights, privileges and immunities pertaining to the Reserves (including the right to make
withdrawals therefrom), and (ix) all proceeds of the foregoing. Grantor hereby authorizes and
consents to the account into which the Reserves have been deposited being held in Beneficiary’s
name or the name of any entity servicing the Note for Beneficiary and hereby acknowledges and
agrees that Beneficiary, or at Beneficiary’s election, such servicing agent, shall have exclusive
control over said account, subject to the terms and conditions of Section 1.6, Section 1.7 and
Exhibit C of this Deed of Trust and any other applicable provisions herein. Notice of the
assignment and security interest granted to Beneficiary herein may be delivered by Beneficiary at
any time to the financial institution wherein the Reserves have been established, and Beneficiary,
or such servicing entity, shall have possession of all passbooks or other evidences of such
accounts. Grantor hereby holds Beneficiary harmless with respect to all risk of loss regarding
amounts on deposit in the Reserves, except to the extent that any such loss is caused by the gross
negligence or intentional misconduct of Beneficiary. Grantor hereby knowingly, voluntarily and
intentionally stipulates, acknowledges and agrees that the advancement of the funds from the
Reserves as set forth herein is at Grantor’s direction and is not the exercise by Beneficiary of
any right of set-off or other remedy upon a default. If a default shall occur hereunder or under
any other of the Loan Documents which is not cured within any applicable grace or cure period,
then Beneficiary may, without notice or demand on Grantor, at its option: (A) withdraw any or all
of the funds (including, without limitation, interest) then remaining in the Reserves and apply
the same, after deducting all reasonable costs and expenses of safekeeping, collection and
delivery (including, but not limited to, reasonable attorneys’ fees, costs and expenses) to the
indebtedness evidenced by the Note or any other obligations of Grantor under the other Loan
Documents in such manner as permitted under the Loan Documents, and the excess, if any, shall be
paid to Grantor, (B) exercise any and all rights and remedies of a secured party under any
applicable Uniform Commercial Code, or (C) exercise any other remedies available at law or in
equity. No such use or application of the funds contained in the Reserves shall be deemed to cure
any default hereunder or under the other Loan Documents.




(b) The Reserves are solely for the protection of Beneficiary and entail no



responsibility on Beneficiary’s part beyond the payment of the respective costs and expenses in
accordance with the terms thereof and beyond the allowing of due credit for the sums actually
received. Upon assignment of this Deed of Trust by Beneficiary, any funds in the Reserves shall be
turned over to the assignee and any responsibility of Beneficiary, as assignor, with respect
thereto shall terminate. The Reserves shall not, unless otherwise explicitly required by
applicable law, be or be deemed to be escrow or trust funds, but, at Beneficiary’s option and in
Beneficiary’s discretion, may either be held in a separate account or be commingled by Beneficiary
with the general funds of Beneficiary. Upon full payment of the indebtedness secured hereby in
accordance with its terms (or if earlier, the completion of the applicable conditions to release
of each Reserve to Beneficiary’s satisfaction) or at such earlier time as Beneficiary may elect,
the balance in the Reserves then in Beneficiary’s possession shall be paid over to Grantor and no
other party shall have any right or claim thereto.



17





(c) Subject to the requirements of Section 4.28 herein, any amounts received
by



Beneficiary from Grantor may be invested by Beneficiary (or its servicer) for its benefit, and
Beneficiary shall not be obligated to pay, or credit, any interest earned thereon to Grantor
except as may be otherwise specifically provided in this Deed of Trust.




1.9 Casualty and Condemnation. Grantor shall give Beneficiary prompt written notice
of



the occurrence of any casualty affecting, or the institution of any proceedings for eminent domain
or for the condemnation of, the Property or any portion thereof (collectively, an “Insured
Event”). All insurance proceeds on the Property, and all causes of action, claims,
compensation, awards and recoveries for any damage, condemnation or taking of all or any part of
the Property or for any damage or injury to it for any loss or diminution in value of the Property,
are hereby assigned to and shall be paid to Beneficiary, subject to the remainder of this
Section 1.9. Beneficiary may participate in any suits or proceedings relating to any such
proceeds, causes of action, claims, compensation, awards or recoveries, and Beneficiary is hereby
authorized, in its own name or in Grantor’s name, to adjust any loss covered by insurance or any
condemnation claim or cause of action, and to settle or compromise any claim or cause of action in
connection therewith, and Grantor shall from time to time deliver to Beneficiary any instruments
required to permit such participation; provided, however, that Beneficiary shall not have
the right to participate in the adjustment of any loss which is not in excess of the lesser of (i)
ten percent (10%) of the then outstanding principal balance of the Note, and (ii) $350,000.00.
Provided no default is then continuing hereunder or under any of the other Loan Documents and no
event has occurred which, with the giving of notice or the passage of time or both, would
constitute a default hereunder or under any of the other Loan Documents, Beneficiary shall apply
any sums received by it under this Section first to the payment of all of its reasonable,
out-of-pocket costs and expenses (including, but not limited to, reasonable legal fees and
disbursements) incurred in obtaining those sums, and then, as follows:




(a) In the event that Beneficiary receives insurance proceeds or condemnation



awards upon the occurrence of an Insured Event in an amount not in excess of the lesser of (i)
ten percent (10%) of the then outstanding principal balance of the Note, and (ii) $350,000.00,
(collectively, the “Threshold Amount”), Beneficiary shall, to the extent such insurance
proceeds or condemnation awards are available for such purpose, disburse to Grantor the amount
paid or incurred by Grantor as a result of any such Insured Event for costs and expenses incurred
by Grantor to repair or restore the Property (collectively the “Repairs”) within ten (10)
days following: (A) the receipt by Beneficiary of a written request from Grantor for disbursement
and a certification by Grantor to Beneficiary that the applicable item of Repair, or portion
thereof for which such disbursement is being requsted, has been completed; (B) the delivery to
Beneficiary of invoices, receipts or other evidence verifying the cost of performing the Repairs
or applicable portion thereof; and (C) for disbursement requests (i) in excess of $20,000.00 with
respect to any single Repair, or (ii) for any single Repair that is structural in nature,
delivery to Beneficiary of (1) affidavits, lien waivers or other evidence reasonably satisfactory
to Beneficiary showing that all materialmen, laborers, subcontractors and any other parties who
might or could claim statutory or common law liens and are furnishing or have furnished material
or labor to the Property have been paid all amounts due for labor and materials furnished to the
Property; (2) upon completion of such Repairs, a certification from an inspecting architect or
other third party acceptable to Beneficiary describing the completed Repairs and verifying the
completion of the Repairs and the value of the completed Repairs; and (3) upon completion of such
Repairs, a new (or amended) certificate of occupancy for the portion of




18



the Improvements covered by such Repairs, if said new certificate of occupancy was required
by law, or a certification by Grantor that no new certificate of occupancy was required by law.
Beneficiary shall not be required to make any such advances more frequently than one time in any
calendar month. •




(b) In the event any proceeds or awards from an Insured Event exceed the



Threshold Amount but less than sixty percent (60%) of the Improvements located on the Land have
been taken or destroyed, then if:




(1) the Property can, in Beneficiary’s reasonable judgment, with diligent




restoration or repair, be returned to a condition at least equal to the condition
thereof that existed prior to the casualty or partial taking causing the loss or damage by
the earlier to occur of the following dates: (i) six (6) months after the receipt of
insurance proceeds or condemnation awards by either Grantor or Beneficiary, and (ii) six
(6) months prior to the stated maturity date of the Note, and




(2) all necessary governmental approvals can be obtained to allow the




rebuilding and reoccupancy of the Property as described in Section 1.9(b)(1)
above, and




(3) there are sufficient sums available (through insurance proceeds or




condemnation awards and contributions by Grantor, the full amount of which shall at
Beneficiary’s option have been deposited with Beneficiary) for such restoration or repair
(including, without limitation, for any reasonable costs and expenses of Beneficiary to be
incurred in administering said restoration or repair) and for payment of principal and
interest to become due and payable under the Note during such restoration or repair, and




(4) the economic feasibility of the Improvements after such restoration or




repair will be such that income from their operation is reasonably anticipated to be
sufficient to pay operating expenses of the Property and debt service on the indebtedness
secured hereby in full with the same coverage ratio considered by Beneficiary in its
determination to make the Loan, and




(5) Grantor shall have delivered to Beneficiary, at Grantor’s sole cost and




expense, an appraisal report from an appraiser, in form and substance reasonably
satisfactory to Beneficiary appraising the value of the Property as proposed to be
restored or repaired to be not less than the appraised value of the Property considered by
Beneficiary in its determination to make the Loan,



then, Beneficiary shall, solely for the purposes of such restoration or repair, advance so much of
the remainder of such sums as may be required to facilitate such restoration or repair, and any
funds deposited by Grantor therefor, to Grantor in the manner and upon such terms and conditions
as would be required by a prudent interim construction lender, including, but not limited to, the
prior approval by Beneficiary of plans and specifications, contractors and the form of
construction contracts and the furnishing to Beneficiary of permits, bonds, lien waivers,
invoices, receipts and affidavits from contractors and subcontractors, in form and substance
reasonably satisfactory to Beneficiary. Any remaining proceeds shall be applied by Beneficiary for
payment of the



19




indebtedness secured hereby in whatever order Beneficiary directs, or released to Grantor,
in its absolute discretion. Grantor shall, in good faith, undertake reasonable efforts to cause
the conditions described in this Section 1.9(b) to be fully satisfied (e.g., Grantor shall timely
make applications for necessary governmental permits, shall order an appropriate appraisal report,
etc.). If such conditions are satisfied, Grantor shall be obligated to undertake restoration and
repair of the damaged improvements subject to the terms of this Section 1.9.



Any disbursement pursuant to this clause (b) of sums by Beneficiary shall, subject to
Grantor’s satisfaction of the provisions hereof, be in a manner to promptly facilitate the
restoration or repair of the Property. In the event Grantor fails to meet the requirements of this
clause (b), then Beneficiary may elect, in its absolute discretion and without regard to
the adequacy of Beneficiary’s security, to accelerate the maturity date of the Note and declare
any and all of the indebtedness secured hereby to be immediately due and payable and apply the
remainder of such sums to the payment of the secured indebtedness in whatever order Beneficiary
directs in its sole discretion, with any remainder being paid to Grantor.




(c) In all other cases, namely, in the event that sixty percent (60%) or more of the



Improvements located on the Land have been taken or destroyed Beneficiary may elect, in
Beneficiary’s absolute discretion and without regard to the adequacy of Beneficiary’s security, to
(i) accelerate the maturity date of the Note and declare any and all indebtedness secured hereby
to be immediately due and payable and apply the remainder of such sums received pursuant to this
Section to the payment of the secured indebtedness in whatever order Beneficiary directs in its
absolute discretion, with any remainder being paid to Grantor, or (ii) make insurance or
condemnation proceeds available to Grantor for repair or restoration if Grantor establishes to the
satisfaction of Beneficiary, in its reasonable discretion, that Grantor otherwise satisfies the
requirements of Section 1.9(b) above. Should Beneficiary make the election described
immediately above in item (ii) of this Section 1.9(c), Grantor shall be obligated to undertake
restoration and repair of the damaged Improvements consistent with the provisions of this Section
1.9.




(d) Any reduction in the indebtedness secured hereby resulting from Beneficiary’s



application of any sums received by it hereunder shall take effect only when Beneficiary
actually receives such sums and elects to apply such sums to the indebtedness secured hereby and,
in any event, the unpaid portion of the indebtedness secured hereby shall remain in full force and
effect and Grantor shall not be excused in the payment thereof. Partial payments received by
Beneficiary, as described in the preceding sentence, shall be applied as set forth in Section
1.2(c) of the Note. If Grantor undertakes to restore or repair the Property after the occurrence
of a casualty or partial taking of the Property as provided above, Grantor shall promptly and
diligently, at Grantor’s sole cost and expense and regardless of whether the insurance proceeds or
condemnation award, as appropriate, shall be sufficient for the purpose, restore, repair, replace
and rebuild the Property as nearly as possible to its value, condition and character immediately
prior to such casualty or partial taking in accordance with the foregoing provisions and Grantor
shall pay to Beneficiary all reasonable costs and expenses of Beneficiary incurred in
administering said rebuilding, restoration or repair, provided that Beneficiary makes such
proceeds or award available for such purpose. Grantor agrees to execute and deliver from time to
time such further instruments as may be requested by Beneficiary to confirm the foregoing
assignment to Beneficiary of any award, damage, insurance proceeds, payment or other compensation.
Grantor hereby irrevocably constitutes and appoints Beneficiary as the




20



attorney-in-fact of Grantor (which power of attorney shall be irrevocable so long as any
indebtedness secured hereby is outstanding, shall be deemed coupled with an interest, shall
survive the voluntary or involuntary dissolution of Grantor and shall not be affected by any
disability or incapacity suffered by Grantor subsequent to the date hereof), with full power of
substitution, subject to the terms of this Section, to settle for, collect and receive any such
awards, damages, insurance proceeds, payments or other compensation from the parties or
authorities making the same, to appear in and prosecute any proceedings therefor and to give
receipts and acquittance therefor.



1.10 Mechanics’ Liens. Grantor shall pay when due all claims and demands of
mechanics, materialmen, laborers and others for any work performed or materials delivered for the
Land or the Improvements; provided, however, that, Grantor shall have the right to contest
in good faith any such claim or demand, so long as it does so diligently, by appropriate
proceedings and without prejudice to Beneficiary and provided that neither the Property nor any
interest therein would be in any danger of sale, loss or forfeiture as a result of such proceeding
or contest. In the event Grantor shall contest any such claim or demand, Grantor shall promptly
notify Beneficiary of such contest and thereafter shall, upon Beneficiary’s request, promptly
provide a bond, cash deposit or other security reasonably satisfactory to Beneficiary to protect
Beneficiary’s interest and security should the contest be unsuccessful. If Grantor shall fail to
immediately discharge or provide security against any such claim or demand as aforesaid,
Beneficiary may do so and any and all expenses incurred by Beneficiary, together with interest
thereon at the Default Interest Rate (as defined in the Note) from the date incurred by
Beneficiary until actually paid by Grantor, shall be immediately paid by Grantor on demand and
shall be secured by this Deed of Trust and by all of the other Loan Documents securing all or any
part of the indebtedness evidenced by the Note.



1.11 Assignment of Leases and Rents. Grantor acknowledges and confirms that, as
additional collateral security for the payment of the indebtedness secured hereby, and cumulative
of any and all rights and remedies herein provided, it has executed and delivered to Beneficiary
an Assignment of Leases and Rents of even date herewith (the “Assignment”), intending such
Assignment to create a present, absolute irrevocable, unconditional assignment to Beneficiary of
all current or future leases of all or any portion of the Property and Rents. Upon the occurrence
of a default under this Deed of Trust which has not been cured within any applicable grace or cure
period, Beneficiary shall be entitled to exercise any or all of the remedies provided in this Deed
of Trust and in the Assignment, including, without limitation, the appointment of a receiver. This
Assignment of Leases and Rents shall continue in full force and effect during any period of
foreclosure or redemption with respect to the Property.




1.12 Leases and Licenses.




(a) Grantor covenants and agrees that it shall not enter into any lease affecting



5,000 square feet or more of the Property or having a term (including any renewal or
extension term) of more than 10 years without the prior written approval of Beneficiary, which
approval shall not be unreasonably withheld. The request for approval of each such proposed new
lease shall be made to Beneficiary in writing and shall state that, pursuant to the terms of this
Deed of Trust, failure to approve or disapprove such proposed lease within ten (10) business days
is deemed approval and Grantor shall furnish to Beneficiary (and any loan servicer specified from
time to time by Beneficiary): (i) such biographical and financial information about the proposed
tenant as




21



Beneficiary may require in conjunction with its review, (ii) a copy of the proposed form of
lease, and (iii) a summary of the material terms of such proposed lease (including, without
limitation, rental terms and the term of the proposed lease and any options). It is acknowledged
that Beneficiary intends to include among its criteria for approval of any such proposed lease the
following: (i) such lease shall be with a bona-fide arm’s length tenant; (ii) such lease shall not
contain any rental or other concessions which are not then customary and reasonable for similar
properties and leases in the market area of the Land; (iii) such lease shall provide that the
tenant pays for its expenses; (iv) the rental shall be at least at the market rate then prevailing
for similar properties and leases in the market areas of the Land; and (v) such lease shall
contain subordination and attornment provisions in form and content acceptable to Beneficiary.
Failure of Beneficiary to approve or disapprove any such proposed lease within ten (10) business
days after receipt of such written request and all the documents and information required to be
furnished to Beneficiary with such request shall be deemed approval, provided that the written
request for approval specifically mentioned the same.




(b) All other leases shall be written on the standard form lease (without any



material changes) which Beneficiary has approved (which approval shall not be unreasonably
withheld or delayed) and shall be on arm’s length terms consistent with the terms for similar
leases in Douglas County, Colorado, shall provide for free rent only if the same is consistent
with prevailing market conditions and shall provide for market rents then prevailing in Douglas
County, Colorado. Grantor shall also submit to Beneficiary for Beneficiary’s approval, which
approval shall not be unreasonably withheld or delayed, prior to the execution thereof, any
proposed lease, license or occupancy agreement of the Property or any portion thereof that differs
materially and adversely from the aforementioned form lease. Grantor shall not execute any lease,
license or occupancy agreement for all or a substantial portion of the Property, except for an
actual occupancy by the tenant, lessee or licensee thereunder, and shall at all times promptly and
faithfully perform, or cause to be performed, all of the covenants, conditions and agreements
contained in all leases, licenses and occupancy agreements with respect to the Property, now or
hereafter existing, on the part of the landlord, lessor or licensor thereunder to be kept and
performed. In addition to the requirements set forth in Section 1.18(c) of this Deed of
Trust, Grantor shall furnish to Beneficiary, within ten (10) days after a written request by
Beneficiary to do so, a current rent roll, certified by Grantor as being true and correct,
containing the names of all tenants, lessees and licensees with respect to the Property, the terms
of their respective leases, licenses or occupancy agreements, the spaces occupied and the rentals
or fees payable thereunder and the amount of each tenant’s security deposit. Upon the written
request of Beneficiary, Grantor shall deliver to Beneficiary a copy of each such lease, license
and occupancy agreement. Grantor shall not do or suffer to be done any act that might result in a
default by the landlord, lessor or licensor under any such lease, license or occupancy agreement
or allow the tenant, lessee or licensee thereunder to withhold payment or rent except as may be
expressly permitted by the terms of the applicable lease and, except as otherwise expressly
permitted by the terms of Section 1.13 hereof, shall not further assign any such lease,
license or occupancy agreement or any such rents. Grantor, at no cost or expense to Beneficiary,
shall enforce, short of termination, the performance and observance of each and every condition
and covenant of each of the parties under such leases. Grantor shall not, without the prior
written consent of Beneficiary, modify any of the leases, terminate or accept the surrender of any
leases, waive or release any other party from the performance or observance of any obligation or
condition under such leases except, with respect only to leases affecting less than 5,000 square
feet and having a term often (10) years or less, in the normal course of business in a manner
which is consistent with sound and customary



22




leasing and management practices for similar properties in the community in which the
Property is located. Grantor shall not permit the prepayment of any rents under any of the leases
for more than one (1) month prior to the due date thereof.




1.13 Alienation and Further Encumbrances.




(a) Grantor acknowledges that Beneficiary has relied upon the principals of



Grantor and their experience in owning and operating properties similar to the Property in
connection with the closing of the Loan. Accordingly, except as specifically allowed hereinbelow
in this Section and notwithstanding anything to the contrary contained in Section 4.5
hereof, in the event that the Property or any part thereof or interest therein shall be sold
(including any installment sales agreement), conveyed, disposed of, alienated, hypothecated,
leased (except to tenants of space in the Improvements in accordance with the provisions of
Section 1.12 hereof), assigned, pledged, mortgaged, further encumbered or otherwise
transferred or Grantor shall be divested of its title to the Property or any interest therein, in
any manner or way, whether voluntarily or involuntarily, without the prior written consent of
Beneficiary being first obtained, which consent may be withheld in Beneficiary’s sole discretion,
then the same shall constitute a default hereunder and Beneficiary shall have the right, at its
option, to declare any or all of the indebtedness secured hereby, irrespective of the maturity
date specified in the Note, immediately due and payable and to otherwise exercise any of its other
rights and remedies contained in Article III hereof. If such acceleration is during any
period when a prepayment fee is payable pursuant to the provisions set forth in the Note, then, in
addition to all of the foregoing, such prepayment fee shall also then be immediately due and
payable to the same end as though Grantor were prepaying the entire indebtedness secured hereby on
the date of such acceleration. For the purposes of this Section, the sale, conveyance, transfer,
disposition, alienation, hypothecation, pledge or encumbering (whether voluntarily or
involuntarily) of all or any portion of the ownership interest in (or, directly or indirectly
through constituent parties, any of the ultimate beneficial ownership interest in) Grantor shall
be deemed to be a transfer of an interest in the Property. Notwithstanding the foregoing, however,
transfers or assignments of ownership interests in Grantor (or its constituent parties) may be
undertaken without the consent of Beneficiary in the following circumstances:




(1) In the case of a Grantor which is a limited partnership, up to 49% of



the limited partnership interests in Grantor shall be freely transferable so long as those persons
responsible for the management and control of the Grantor and the Property remain unchanged
following such transfer.




(2) In the case of a Grantor which constitutes a limited liability company,



up to 49% of the non-managing membership interests in Grantor shall be freely transferable so long
as those persons responsible for the management and control of Grantor and the Property remain
unchanged following such transfer.



(3) In the case of a Grantor which constitutes a corporation, up to 49% of



the aggregate of the issued and outstanding capital stock of Grantor may be sold or assigned,
taking into account (i) any prior sales or assignments, and (ii) the effective change in ownership
resulting from any issuance of new shares of capital stock in Grantor or its constituent party.



23





(4) Gifts for estate planning purposes of any individual’s interests
in



Grantor or in any of Grantor’s general partners, members or joint venturers to the spouse or any
lineal descendant of such individual, or to a trust for the benefit of any one or more of such
individual, spouse or lineal descendant, shall not be a default under this Deed of Trust so long
as Grantor is reconstituted, if required, following such gift and so long as those persons
responsible for the management of the Property and Grantor remain unchanged following such gift
or any replacement management is approved by Beneficiary.




(5) Involuntary assignments or transfers caused by the death,



incompetence or dissolution of Grantor, one of its constituent parties or the owner of one of its
constituent parties are permitted if: (i) Grantor is reconstituted, if required, following such
death, incompetence or dissolution, and (ii) those persons responsible for the management and
control of Grantor and the Property remain unchanged as a result of such death, incompetence or
dissolution or any replacement management is approved by Beneficiary in its reasonable
discretion.



In all cases where assignment of ownership interests is allowed pursuant to this Section
1.13(a), the proportionate ownership which is proposed to be transferred shall be calculated
so as to take into account prior transfers or assignments from the same transferor. Furthermore,
the sale, conveyance, transfer, disposition, alienation, hypothecation, pledge or encumbering
(whether voluntarily or involuntarily) of all or any portion of the ownership interest in (or,
directly or indirectly through constituent parties, any of the ultimate beneficial ownership
interest in) any guarantor of Grantor’s obligation hereunder or under any of the other Loan
Documents shall constitute a default hereunder and Beneficiary shall have the right to exercise
its various remedies described hereinabove; provided, however, ownership interests in any
such guarantor may be transferred in a manner consistent with the allowable transfers of
ownership interests in Grantor described hereinabove.




(b) Notwithstanding the foregoing provisions of this Section, Beneficiary shall



consent to a sale, conveyance or transfer of the Property in its entirety (hereinafter, a “Sale”)
to any person or entity provided that each of the following terms and conditions are satisfied:




(1) No default is then continuing hereunder or under any of the other Loan




Documents beyond any notice and grace period applicable to such default;




(2) Grantor gives Beneficiary written notice of the terms of such



prospective Sale not less than sixty (60) days before the date on which such Sale is
scheduled to close and, concurrently therewith, gives Beneficiary all reasonable
information concerning the proposed transferee of the Property (hereinafter, a
“Buyer”) as Beneficiary would require in evaluating an initial extension of
credit to a borrower and pays to Beneficiary a non-refundable application fee in the
amount of $5,000.00 (the “Application Fee”). Beneficiary shall have the right, in
its reasonable discretion, to approve or disapprove the proposed Buyer. In determining
whether to give or withhold its approval of the proposed Buyer, Beneficiary shall
consider, among other things, the Buyer’s experience and track record in owning and
operating facilities similar to the Property, the Buyer’s entity structure, the Buyer’s
financial strength, the Buyer’s general business standing and the Buyer’s relationships
and experience with contractors, vendors, tenants, lenders and other business entities;




24




(3) Grantor pays Beneficiary, concurrently with the
closing of such Sale, a




non-refundable assumption fee (the “Assumption Fee”) in an amount equal to one
percent (1%) of the then outstanding principal balance of the Note. The Application Fee
shall be used to pay Beneficiary’s reasonable and customary out-of-pocket costs and
expenses, including, without limitation, reasonable attorneys’ fees, incurred by
Beneficiary in connection with the Sale. Grantor’s obligation to pay such out-of-pocket
costs and expenses and attorneys’ fees of Beneficiary in connection with such Sale shall
not exceed the Application Fee;




(4) The Buyer assumes and agrees to pay the indebtedness
secured hereby




subject to the provisions of Section 4.23 hereof and to perform the covenants of
Grantor under the Loan Documents, and, prior to or concurrently with the closing of such
Sale, the Buyer executes, without any cost or expense to Beneficiary, such documents and
agreements as Beneficiary shall reasonably require to evidence and effectuate said
assumption and delivers such legal opinions as Beneficiary may require;




(5) Grantor and the Buyer execute, without any cost or expense
to




Beneficiary, new financing statements or financing statement amendments and any additional
documents reasonably requested by Beneficiary;




(6) Grantor delivers to Beneficiary, without any cost or
expense to




Beneficiary, such endorsements to Beneficiary’s title insurance policy, hazard insurance
endorsements or certificates and other similar materials as Beneficiary may deem necessary
at the time of the Sale, all in form and substance satisfactory to Beneficiary, including,
without limitation, an endorsement or endorsements to Beneficiary’s title insurance policy
insuring the lien of this Deed of Trust, extending the effective date of such policy to
the date of execution and delivery (or, if later, of recording) of the assumption
agreement referenced above in subsection (4) of this Section 1.13(b), with
no additional exceptions added to such policy other than those as are approved by
Beneficiary in its sole discretion, and insuring that fee simple title to the Property is
vested in the Buyer;




(7) Grantor executes and delivers to Beneficiary, without any
cost or




expense to Beneficiary, a release of Beneficiary, its officers, directors, employees and
agents, from all claims and liability relating to the transactions evidenced by the Loan
Documents, through and including the date of the closing of the Sale, which agreement
shall be in form and substance satisfactory to Beneficiary and shall be binding upon the
Buyer;




(8) Subject to the provisions of Section 4.23 hereof,
such Sale is not




construed so as to relieve Grantor of any personal liability under the Note or any of the
other Loan Documents for any acts or events occurring or obligations arising prior to or
simultaneously with the closing of such Sale, and Grantor executes, without any cost or
expense to Beneficiary, such documents and agreements as Beneficiary shall reasonably
require to evidence and effectuate the ratification of said personal liability;



25





(9) Such Sale is not construed so as to relieve any current guarantor or




indemnitor of its obligations under any guaranty or indemnity agreement executed in
connection with the loan secured hereby and each such current guarantor and indemnitor
executes, without any cost or expense to Beneficiary, such documents and agreements as
Beneficiary shall reasonably require to evidence and effectuate the ratification of each
such guaranty and indemnity agreement, provided that if the Buyer or a party associated
with the Buyer approved by Beneficiary in its sole discretion assumes the obligations of
the current guarantor or indemnitor under its guaranty or indemnity agreement and the
Buyer or such party associated with the Buyer, as applicable, executes, without any cost
or expense to Beneficiary, a new guaranty or indemnity agreement in form and substance
satisfactory to Beneficiary, then Beneficiary shall release the current guarantor or
indemnitor from all obligations arising under its guaranty or indemnity agreement after
the closing of such Sale;




(10) The Buyer shall furnish, if the Buyer is a corporation, partnership, or other
entity, all documents evidencing the Buyer’s capacity and good standing, and the
qualification of the signers to execute the assumption of the indebtedness secured hereby,
which documents shall include, but not in any way be limited to, certified copies of all
documents relating to the organization and formation of the Buyer and of the entities, if
any, which are partners or members of the Buyer. The Buyer and such constituent partners,
members or shareholders of Buyer (as the case may be), as Beneficiary may require, shall
be single purpose, single-asset “bankruptcy remote” entities, whose formation documents
shall be approved by counsel to Beneficiary;




(11) The Buyer, if required by Beneficiary, shall furnish an opinion of counsel
satisfactory to Beneficiary and its counsel (i) that the Buyer’s formation documents
provide for the matters described in Section 1.13(b)(10) hereof, (ii) that the
assumption of the indebtedness evidenced hereby has been duly authorized, executed and
delivered, and that the Loan Documents are valid, binding and enforceable against the
Buyer in accordance with their terms, (iii) that the Buyer and any entity which is a
controlling stockholder, member or general partner of Buyer, have been duly organized, and
are in existence and in good standing, and (iv) with respect to such other matters, as
Beneficiary may reasonably request;




(12) If the Buyer is a single-member limited liability company, Buyer must be formed
in a state whose statutes permit the continued existence of a limited liability company
upon the bankruptcy or dissolution of the sole member, and the Buyer’s operating agreement
must provide for the continued existence of the Buyer in the event of the bankruptcy or
dissolution of the sole member. The Buyer, if required by Beneficiary, shall also furnish
an opinion of counsel satisfactory to Beneficiary and its counsel that if the Buyer is a
single-member limited liability company, that (i) the Buyer is a separate legal entity
formed in a state whose statutes permit the continued existence of a limited liability
company upon the bankruptcy or dissolution of the sole member; (ii) the separate existence
of the Buyer shall continue until the cancellation of the certificate of organization;
(iii) the Buyer’s operating agreement provides for the continued existence of the Buyer in
the event of the bankruptcy or dissolution of the sole member, and that such provisions
would be enforceable notwithstanding the bankruptcy of the sole member; and (iv) any
judgment creditor of the



26





sole member may not satisfy its claims against the sole member by asserting a claim
against the Property or any other assets of the Buyer;




(13) If required under the operative documents with respect to a Secondary Market
Transaction (as hereinafter defined), Beneficiary shall have received evidence in writing
from the Rating Agency (as defined in Section 1.18 hereof) to the effect that the
proposed transfer will not result in a re-qualification, reduction, downgrade or withdrawal
of any rating initially assigned or to be assigned in a Secondary Market Transaction or, if
no such rating has been issued, in Beneficiary’s good faith judgment, such transfer shall
not have an adverse effect on the level of rating obtainable in connection with the Loan;




(14) Grantor shall reimburse Beneficiary (first by application against the
Application Fee and any excess amounts by Grantor) for all of Beneficiary’s reasonable
out-of-pocket costs and expenses (including, without limitation, reasonable attorneys’
fees and disbursements and Rating Agency fees and expenses) incurred or anticipated to be
incurred by Beneficiary in connection with a Sale including, without limitation,
Beneficiary’s determination of whether Grantor has satisfied all of the conditions and
requirements set forth in this Section 1.13(b); and




(15) Grantor’s obligations under the contract of sale pursuant to which such Sale,
conveyance or transfer is proposed to occur shall expressly be subject to the satisfaction
of the terms and conditions of this Section 1.13(b).



1.14 Payment of Utilities, Assessments, Charges, Etc. Grantor shall pay when due all
utility charges which are incurred by Grantor or which may become a charge or lien against any
portion of the Property for gas, electricity, water and sewer services furnished to the Land
and/or the Improvements and all other assessments or charges of a similar nature, or assessments
payable pursuant to any restrictive covenants, whether public or private, affecting the Land
and/or the Improvements or any portion thereof, whether or not such assessments or charges are or
may become liens thereon..



1.15 Access Privileges and Inspections. Beneficiary and the agents, representatives
and employees of Beneficiary shall, subject to the rights of tenants and upon reasonable prior
notice to Grantor (except in an emergency), have full and free access to the Land and the
Improvements and any other location where books and records concerning the Property are kept at
all reasonable times for the purposes of inspecting the Property and of examining, copying and
making extracts from the books and records of Grantor relating to the Property. Grantor shall lend
assistance to all such agents, representatives and employees of Beneficiary.



1.16 Waste; Alteration of the Property. Grantor shall not commit, suffer or permit
any waste on the Property nor take any actions that might invalidate any insurance carried on the
Property. Grantor shall maintain the Property in good condition and repair. No part of the
Improvements may be removed, demolished or materially altered, without the prior written consent
of Beneficiary. Without the prior written consent of Beneficiary, Grantor shall not commence
construction of any improvements on the Land other than improvements required for the maintenance
or repair of the Property and Tenant Improvements.




27



1.17 Zoning/Use. Without the prior written consent of Beneficiary, Grantor
shall not seek, make, suffer, consent to or acquiesce in any change in the zoning or conditions of
use of the Land or the Improvements. Grantor shall comply with and make all payments required
under the provisions of any covenants, conditions or restrictions affecting the Land or the
Improvements. Grantor shall comply with all existing and future requirements of all governmental
authorities having jurisdiction over the Property. Grantor shall keep all licenses, permits,
franchises, certificates of occupancy, consents, and other approvals necessary for the operation
of the Property in full force and effect. Grantor shall operate the Property as a retail and/or
office complex for so long as the indebtedness secured hereby is outstanding. If, under applicable
zoning provisions, the use of all or any part of the Land or the Improvements is or becomes a
nonconforming use, Grantor shall not cause or permit such use to be discontinued or abandoned
without the prior written consent of Beneficiary. Further, without Beneficiary’s prior written
consent, Grantor shall not file or subject any part of the Land or the Improvements to any
declaration of condominium or cooperative or convert any part of the Land or the Improvements to a
condominium, cooperative or other form of multiple ownership and governance.



1.18 Financial Statements and Books and Records. Grantor shall keep accurate books
and records of account of the Property and its own financial affairs sufficient to permit the
preparation of financial statements therefrom in accordance with generally accepted accounting
principles. Beneficiary and its duly authorized representatives shall have the right to examine,
copy and audit Grantor’s records and books of account at all reasonable times upon reasonable
prior notice to Grantor. So long as this Deed of Trust continues in effect, Grantor shall provide
to Beneficiary, in addition to any other financial statements required hereunder or under any of
the other Loan Documents, the following financial statements and information, all of which must be
certified to Beneficiary as being true and correct by Grantor or the entity to which they pertain,
as applicable, be prepared in accordance with generally accepted accounting principles
consistently applied and be in form and substance reasonably acceptable to Beneficiary:




(a) copies of all tax returns filed by Grantor, within thirty (30) days after the
date



of filing;




(b) quarterly operating statements for the Property, within fifteen (15) days after



the end of each March, June, September and December, provided, operating statements shall be
delivered monthly for the first twelve (12) full calendar months of the Note;




(c) current rent rolls for the Property, within fifteen (15) days after the end of
each



March, June, September and December, provided, rent rolls shall be delivered monthly for the
first twelve (12) full calendar months of the Note;




(d) annual balance sheets for the Property and annual financial statements for



Grantor, each principal, member or general partner in Grantor with an ownership interest in excess
of 51%, and each indemnitor and guarantor under any indemnity or guaranty executed in connection
with the loan secured hereby, within ninety (90) days after the end of each calendar year; and



28





(e) such other information with respect to the Property, Grantor, the
principals,



members or general partners in Grantor, and each indemnitor and guarantor under any indemnity or
guaranty executed in connection with the loan secured hereby, which may be reasonably requested
from time to time by Beneficiary, within a reasonable time after the applicable request.



If any of the aforementioned materials are not furnished to Beneficiary within the applicable
time periods and any applicable grace periods provided in Section 2.1 herein, Grantor shall pay
to Lender a late fee of $250.00. Further, if any of the aforementioned materials are not
furnished to Beneficiary within the applicable time periods and any applicable grace periods
provided in Section 2.1 herein, or the contents of any of the foregoing are not reasonably
satisfactory to Beneficiary, in addition to any other rights and remedies of Beneficiary
contained herein, Beneficiary shall have the right, but not the obligation, to obtain the same by
means of an audit by an independent certified public accountant selected by Beneficiary, in which
event Grantor agrees to pay, or to reimburse Beneficiary for, any expense of such audit and
further agrees to provide all necessary information to said accountant and to otherwise cooperate
in the making of such audit. Grantor agrees that any and all materials furnished hereunder are
the property of Beneficiary (and Beneficiary’s servicer) and may be released and made available
to such parties as Beneficiary or its servicer deems necessary in the course of its business,
including any Rating Agency responsible for rating securities issued in any Secondary Market
Transaction. For purposes hereof, a “Secondary Market Transaction" shall be (a) any sale
or assignment of this Deed of Trust, Note and other Loan Documents to one or more investors as a
whole loan, (b) a participation of the Loan to one or more investors, (c) any deposit of this
Deed of Trust, Note and other Loan Documents with a trust or other entity which may sell
certificates or other instruments to investors evidencing an ownership interest in the assets of
such trust or other entity, or (d) any other sale, assignment or transfer of the Loan or any
interest therein to one or more investors. If at any time during which the Loan is an asset of a
securitization or is otherwise an asset of any rated transaction, “Rating Agency" shall
mean the rating agency or rating agencies that from time to time rate the securities,
certificates or other instruments issued in connection with such securitization or other
transaction.



1.19 Further Documentation. Grantor shall, on the request of Beneficiary in
Beneficiary’s reasonable discretion and at the expense of Grantor, promptly correct any defect,
error or omission which may be discovered in the contents of this Deed of Trust or in any of the
other Loan Documents and promptly execute, acknowledge, deliver and record or file such further
instruments and do such further acts as may be necessary, desirable or proper to carry out more
effectively the purposes of this Deed of Trust and the other Loan Documents or as may be deemed
advisable by Beneficiary to protect, continue or preserve the liens and security interests
hereunder, including, without limitation, security instruments, financing statements and
continuation statements.




1.20 Payment of Costs.




(a) Payment. Grantor shall pay all reasonable costs and expenses of every



character incurred in connection with the closing of the Loan or otherwise attributable or
chargeable to Grantor as the owner of the Property, including, without limitation, appraisal
fees, recording fees, documentary, stamp, mortgage or intangible taxes, brokerage fees and
commissions, title policy




29



premiums and title search fees, uniform commercial code/tax lien/litigation search fees,
escrow fees and reasonable attorneys’ fees.




(b) Advances to Protect Property. Without limiting or waiving any other
rights



and remedies of Beneficiary hereunder, if Beneficiary determines that Grantor is not adequately
performing or has failed to perform any of its obligations, covenants or agreements contained in
this Deed of Trust or in any of the other Loan Documents and such inadequacy or failure is not
cured within any applicable grace or cure period, or if any action or proceeding of any kind
(including, but not limited to, any bankruptcy, insolvency, arrangement, reorganization or other
debtor relief proceeding) is commenced which might affect Beneficiary’s interest in the Property
or Beneficiary’s right to enforce its security, then Beneficiary may, at its option, with or
without notice to Grantor, make any appearances, disburse or advance any sums and take any
actions as may be necessary or desirable to protect or enforce the security of this Deed of
Trust or to remedy the failure of Grantor to perform its covenants and agreements (without,
however, waiving any default of Grantor). Grantor agrees to pay on demand all expenses of
Beneficiary reasonably incurred with respect to the foregoing (including, but not limited to,
fees and disbursements of counsel), together with interest thereon at the Default Interest Rate
(as defined in the Note) from and after the date on which Beneficiary incurs such expenses until
reimbursement thereof by Grantor. Any such expenses so incurred by Beneficiary, together with
interest thereon as provided above, shall be additional indebtedness of Grantor secured by this
Deed of Trust and by all of the other Loan Documents securing all or any part of the
indebtedness evidenced by the Note. The necessity for any such actions and of the amounts to be
paid shall be determined by Beneficiary in its reasonable discretion. Beneficiary is hereby
empowered to enter and to authorize others to enter upon the Property or any part thereof for
the purpose of performing or observing any such defaulted term, covenant or condition without
thereby becoming liable to Grantor or any person in possession holding under Grantor except in
the event of Grantor’s gross negligence or willful misconduct. Grantor hereby acknowledges and
agrees that the remedies set forth in this Section 1.20(b) shall be exercisable by
Beneficiary, and any and all payments made or costs or expenses incurred by Beneficiary in
connection therewith shall be secured hereby and shall be, without demand, immediately repaid by
Grantor with interest thereon at the Default Interest Rate (as defined in the Note),
notwithstanding the fact that such remedies were exercised and such payments made and costs
incurred by Beneficiary after the filing by Grantor of a voluntary case or the filing against
Grantor of an involuntary case pursuant to or within the meaning of the Bankruptcy Reform Act of
1978, as amended (the “Act”), Title 11 U.S.C., or after any similar action pursuant to any other
debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, which may be or become applicable to Grantor,
Beneficiary, any guarantor or indemnitor, the secured indebtedness or any of the Loan Documents.
This indemnity shall survive payment in full of the indebtedness secured hereby. This
Section 1.20(b) shall not be construed to require Beneficiary to incur any expenses,
make any appearances or take any actions.



1.21 Security Interest. As further security for the payment of the secured
indebtedness and the performance of the obligations, covenants, agreements and undertakings of
Grantor herein, this Deed of Trust shall be deemed to encumber and create a security interest in,
and Grantor hereby grants to Beneficiary a security interest in all Reserves (as hereinabove
defined), all fixtures, chattels, accounts, equipment, inventory, contract rights, general
intangibles and other personal property included within the Property, all renewals, replacements
of any of the aforementioned items, or




30



articles in substitution therefor or in addition thereto or the proceeds thereof (said
property is hereinafter referred to collectively as the “Collateral”), whether or not the
same shall be attached to the Land or the Improvements in any manner. It is hereby agreed that to
the extent permitted by law, all of the foregoing property is to be deemed and held to be a part
of and affixed to the Land and the Improvements. The foregoing security interest shall also cover
Grantor’s leasehold interest in any of the foregoing property which is leased by Grantor.
Notwithstanding the foregoing, all of the foregoing property shall be owned by Grantor and no
leasing or installment sales or other financing or title retention agreement in connection
therewith shall be permitted without the prior written approVal of Beneficiary. Grantor shall
promptly replace all of the Collateral subject to the lien or security interest of this Deed of
Trust when worn out or obsolete with Collateral comparable to the worn out or obsolete Collateral
when new and will not, without the prior written consent of Beneficiary, remove from the Land or
the Improvements any of the Collateral subject to the lien or security interest of this Deed of
Trust except such as is replaced by an article of equal suitability and value as above provided,
owned by Grantor free and clear of any lien or security interest except that created by this Deed
of Trust and the other Loan Documents and except as otherwise expressly permitted by the terms of
 Section 1.13 of this Deed of Trust. All of the Collateral shall be kept at the location
of the Land except as otherwise required by the terms of the Loan Documents. Grantor shall not use
any of the Collateral in violation of any applicable statute, ordinance or insurance policy.



1.22 Security Agreement. This Deed of Trust constitutes both a real property deed of
trust and a “security agreement” between Grantor and Beneficiary with respect to the Collateral
in which Beneficiary is granted a security interest hereunder, and, cumulative of all other
rights and remedies of Beneficiary hereunder, Beneficiary shall have all of the rights and
remedies of a secured party under any applicable Uniform Commercial Code. Grantor hereby agrees
to execute and deliver on demand and hereby irrevocably constitutes and appoints Beneficiary the
attorney-in-fact of Grantor to execute and deliver and, if appropriate, to file with the
appropriate filing officer or office such security agreements, financing statements, continuation
statements or other instruments as Beneficiary may request or require in order to impose, perfect
or continue the perfection of the lien or security interest created hereby. Grantor agrees to
furnish Beneficiary with notice of any change in the name, identity, corporate structure,
residence, or principal place of business or mailing address of Grantor within ten (10) days of
the effective date of any such change. Expenses of retaking, holding, preparing for sale, selling
or the like (including, without limitation, Beneficiary’s reasonable attorneys’ fees and legal
expenses), together with interest thereon at the Default Interest Rate (as defined in the Note)
from the date incurred by Beneficiary until actually paid by Grantor, shall be paid by Grantor on
demand and shall be secured by this Deed of Trust and by all of the other Loan Documents securing
all or any part of the indebtedness evidenced by the Note. If notice is required by law,
Beneficiary shall give Grantor at least ten (10) days’ prior written notice of the time and place
of any public sale of such property (or such greater notice as is required by applicable law) or
of the time of or after which any private sale or any other intended disposition thereof is to be
made, and if such notice is sent to Grantor, as the same is provided for the mailing of notices
herein, it is hereby deemed that such notice shall be and is reasonable notice to Grantor. No
such notice is necessary for any such property which is perishable, threatens to decline speedily
in value or is of a type customarily sold on a recognized market. Subject to the requirements of
applicable law, any sale made pursuant to the provisions of this Section 1.22 shall be
deemed to have been a public sale conducted in a commercially reasonable manner if, at least ten
(10) days prior to date of such sale, notice of the sale is published once in a newspaper of
general circulation in the county in which the




31



Property is located. Furthermore, to the extent permitted by law, in conjunction with, in
addition to or in substitution for the rights and remedies available to Beneficiary pursuant to
any applicable Uniform Commercial Code:




(a) In the event of a foreclosure sale, the Property may, at the option of




Beneficiary, be sold as a whole; and




(b) It shall not be necessary that Beneficiary take possession of the



aforementioned Collateral, or any part thereof, prior to the time that any sale pursuant to the
provisions of this Section is conducted and it shall not be necessary that said Collateral, or
any part thereof, be present at the location of such sale; and




(c) 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.



Grantor will not change the state of its organization or registration, without obtaining the
prior written consent of Beneficiary, which consent shall not be unreasonably withheld, delayed
or conditioned. Beneficiary’s consent will, however, be conditioned upon, among other things,
the execution and delivery of additional financing statements, security agreements and other
instruments which may be necessary to effectively evidence or perfect Beneficiary’s security
interest in the Collateral as a result of such changes. The name, principal place of business
and chief executive office of Grantor (as Debtor under any applicable Uniform Commercial Code),
as of the date hereof, are:




HRMED, LLC


do Gibbons-White Incorporated 2305
Canyon Boulevard, Suite 200
Boulder, Colorado 80302



The name and address of Beneficiary (as Secured Party under any applicable Uniform Commercial
Code) are:




Column Financial, Inc.


11 Madison Avenue




5th Floor



New York, New York 10010-3629
Attn: Edmund Taylor



1.23 Easements and Rights-of-Way. Grantor shall not grant any easement or
right-of-way with respect to all or any portion of the Land or the Improvements without the prior
written consent of Beneficiary (not to be unreasonably withheld or delayed). The purchaser at any
foreclosure sale hereunder may, at its discretion, disaffirm any easement or right-of-way granted
in violation of any of the provisions of this Deed of Trust and may take immediate possession of
the Property free from, and despite the terms of, such grant of easement or right-of-way. If
Beneficiary consents to the grant of an easement or right-of-way, Beneficiary agrees to grant
such consent without charge to Grantor




32




other than reasonable expenses, including, without limitation, reasonable attorneys’ fees,
incurred by Beneficiary in the review of Grantor’s request and, if applicable, in the preparation
of documents relating to the subordination of this Deed of Trust to such easement or
right-of-way.




1.24 Compliance with Laws.




(a) Grantor shall at all times comply with all statutes, ordinances, regulations
and




other governmental or quasi-governmental requirements and private covenants now or hereafter
relating to the ownership, construction, use or operation of the Property, including, but not
limited to, those concerning employment and compensation of persons engaged in operation and
maintenance of the Property and any environmental or ecological requirements, even if such
compliance shall require structural changes to the Property; provided, however, that,
Grantor may, upon providing Beneficiary with security satisfactory to Beneficiary, proceed
diligently and in good faith to contest the validity or applicability of any such statute,
ordinance, regulation or requirement so long as during such contest the Property shall not be
subject to any lien, charge, fine or other liability and shall not be in danger of being
forfeited, lost or closed. Grantor shall not use or occupy, or allow the use or occupancy of, the
Property in any manner which violates any lease of or any other agreement applicable to the
Property or any applicable law, rule, regulation or order or which constitutes a public or
private nuisance or which makes void, voidable or cancelable, or increases the premium of, any
insurance then in force with respect thereto.




(b) Grantor agrees that the Property shall at all times comply to the extent




applicable with the requirements of the Americans with Disabilities Act of 1990, the Fair Housing
Amendments Act of 1988 and all other state and local laws and ordinances related to handicapped
access and all rules, regulations, and orders issued pursuant thereto including, without
limitation, the Americans with Disabilities Act Accessibility Guidelines for Buildings and
Facilities (collectively “Access Laws”). Grantor agrees to give prompt notice to
Beneficiary of the receipt by Grantor of any complaints related to violations of any Access Laws
and of the commencement of any proceedings or investigations which relate to compliance with
applicable Access Laws.



1.25 Additional Taxes. In the event of the enactment after this date of any law of
the state where the Property is located or of any other governmental entity deducting from the
value of the Property for the purpose of taxation any lien or security interest thereon, or
imposing upon Beneficiary the payment of the whole or any part of the taxes or assessments or
charges or liens herein required to be paid by Grantor, or changing in any way the laws relating
to the taxation of deeds of trust, mortgages or security agreements or debts secured by deeds of
trust, mortgages or security agreements or the interest of the Beneficiary, mortgagee or secured
party in the property covered thereby, or the manner of collection of such taxes, so as to
adversely affect this Deed of Trust or the indebtedness secured hereby or Beneficiary, then, and
in any such event, Grantor, upon demand by Beneficiary, shall pay such taxes, assessments, charges
or liens, or reimburse Beneficiary therefor; provided, however, that if in the opinion of
counsel for Beneficiary (a) it might be unlawful to require Grantor to make such payment, or (b)
the making of such payment might result in the imposition of interest beyond the maximum amount
permitted by law, then and in either such event, Beneficiary may elect, by notice in writing given
to Grantor, to declare all of the indebtedness secured hereby to be and become due and payable in
full, thirty (30) days from the giving of such notice.




33



1.26 Grantor’s Waivers. To the full extent permitted by law, Grantor agrees
that Grantor shall not at any time insist upon, plead, claim or take the benefit or advantage of
any law now or hereafter in force providing for any appraisement, valuation, stay, moratorium or
extension, or any law now or hereafter in force providing for the reinstatement of the
indebtedness secured hereby prior to any sale of the Property to be made pursuant to any
provisions contained herein or prior to the entering of any decree, judgment or order of any
court of competent jurisdiction, or any right under any statute to redeem all or any part of the
Property so sold. To the full extent permitted by law, Grantor shall not have or assert any
right under any statute or rule of law pertaining to the exemption of homestead or other
exemption under any federal, state or local law now or hereafter in effect, the administration
of estates of decedents or any 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, for the collection
of the secured indebtedness without any prior or different resort for collection, or the right
of Beneficiary under the terms of this Deed of Trust to the payment of the indebtedness secured
hereby out of the proceeds of sale of the Property in preference to every other claimant
whatever. Grantor, for Grantor and Grantor’s successors and assigns, and for any and all persons
ever claiming any interest in the Property, to the full extent permitted by law, hereby
knowingly, intentionally and voluntarily with and upon the advice of competent counsel waives,
releases, relinquishes and forever forgoes: (a) all rights of valuation, appraisement, stay of
execution, reinstatement and notice of election or intention to mature or declare due the
secured indebtedness (except such notices as are specifically provided for herein); (b) all
right to a marshalling of the assets of Grantor, including the Property, to a sale in the
inverse order of alienation, or to direct the order in which any of the Property shall be sold
in the event of foreclosure of the liens and security interests hereby created and agrees that
any court having jurisdiction to foreclose such liens and security interests may order the
Property sold as an entirety; and (c) all rights and periods of redemption provided under
applicable law to the fullest extent permitted by law and agrees that it shall not solicit or
aid the solicitation of the filing of any Petition (as hereinafter defined) against the Grantor,
whether acting on its own behalf or on behalf of any other party. Without limiting the
generality of the foregoing, Grantor shall not (i) provide information regarding the identity of
creditors or the nature of creditors’ claims to any third party (other than Grantor’s attorneys,
accountants or other consultants as necessary in the ordinary course of Grantor’s business)
unless compelled to do so by order of a court of competent jurisdiction or by regulation
promulgated by a governmental agency; or (ii) pay the legal fees or expenses of any creditor of
or interest holder in Grantor with respect to any matter whatsoever.




1.27 Intentionally Deleted.



1.28 Contractual Statute of Limitations. To the extent permitted by applicable law,
Grantor hereby agrees that any claim or cause of action by Grantor against Beneficiary, or any of
Beneficiary’s directors, officers, employees, agents, accountants or attorneys, based upon,
arising from or relating to the indebtedness secured hereby, or any other matter, cause or thing
whatsoever, whether or not relating thereto, occurred, done, omitted or suffered to be done by
Beneficiary or by Beneficiary’s directors, officers, employees, agents, accountants or attorneys,
whether sounding in contract or in tort or otherwise, shall be barred unless asserted by Grantor
by the commencement of an action or proceeding in a court of competent jurisdiction by the filing
of a complaint within one (1) year after Grantor first acquires or reasonably should have
acquired knowledge of the first act, occurrence or omission upon which such claim or cause of
action, or any part thereof, is based and



34




service of a summons and complaint on an officer of Beneficiary or any other person
authorized to accept service of process on behalf of Beneficiary, within thirty (30) days
thereafter. Grantor agrees that such one (1) year period of time is reasonable and sufficient
time for a borrower to investigate and act upon any such claim or cause of action. The one (1)
year period provided herein shall not be waived, tolled or extended except by the specific
written agreement of Beneficiary. This provision shall survive any termination of this Deed of
Trust or any of the other Loan Documents.



1.29 Management. The management of the Property shall be by either: (a) Grantor or
an entity affiliated with Grantor approved by Beneficiary for so long as Grantor or said
affiliated entity is managing the Property in a first class manner; or (b) a professional
property management company approved by Beneficiary in its reasonable discretion. Such
management by an affiliated entity or a professional property management company shall be
pursuant to a written agreement approved by Beneficiary. In no event shall any manager be
removed or replaced or the terms of any management agreement materially modified or amended
without the prior written consent of Beneficiary. In the event of default hereunder or under any
management contract then in effect, which default is not cured within any applicable grace or
cure period, Beneficiary shall have the right to terminate, or to direct Grantor to terminate,
such management contract upon thirty (30) days’ notice and to retain, or to direct Grantor to
retain, a new management agent approved by Beneficiary. All Rents and Profits generated by or
derived from the Property shall first be utilized solely for current expenses directly
attributable to the ownership and operation of the Property, including, without limitation,
current expenses relating to Grantor’s liabilities and obligations with respect to this Deed of
Trust and the other Loan Documents, and none of the Rents and Profits generated by or derived
from the Property shall be diverted by Grantor and utilized for any other purposes unless all
such current expenses attributable to the ownership and operation of the Property have been
fully paid and satisfied.




1.30 Hazardous Materials and Environmental Concerns.




(a) Grantor hereby represents and warrants to Beneficiary, to the best of Grantor’s



present, actual knowledge, based solely on that certain Phase I Environmental Report prepared by
ABCO Engineering Corp., dated September 25, 2002, that, as of the date hereof: (i) the Property
is in full compliance with, and to the best of Grantor’s knowledge, information and belief, the
Property has been in full compliance with, all local, state or federal laws, rules and
regulations pertaining to environmental regulation, contamination, remediation or human health or
safety (including the regulation or remediation of Hazardous Substances, as defined below)
(collectively, “Environmental Laws”), all as amended; (ii) no hazardous, toxic or
harmful substances, wastes, materials, pollutants or contaminants (including, without limitation,
asbestos, polychlorinated biphenyls, petroleum products, radon, lead-based paint, flammable
explosives, radioactive materials, infectious substances or raw materials which may include
hazardous constituents) or any other substances or materials which are included under or
regulated by Environmental Laws (collectively, “Ha       .ardous Substances”) are located on or have
been handled, manufactured, generated, stored, processed, transported to or from, or disposed of
on or subjected to Release or discharged from the Property (including soil and groundwater
beneath the Property) except for those substances used by Grantor or the tenants of the Property
in the ordinary course of its or their business and in compliance with all Environmental Laws;
(iii) the Property is not subject to any private or governmental lien or judicial, administrative
or other notice or action relating to Hazardous Substances or noncompliance with Environmental
Laws, nor is Grantor aware of any basis for such lien, notice or action; (iv) there are




35



no underground storage tanks or other underground storage receptacles (whether active or
abandoned) used to store Hazardous Substances on the Property; (v) Grantor has received no
notice of, and to the best of Grantor’s knowledge and belief, there does not exist any,
investigation, action, proceeding or claim by any agency, authority or unit of government or by
any third party which could result in any liability, penalty, sanction or judgment under any
Environmental Laws with respect to any condition, use or operation of the Property, nor does
Grantor know of any basis for such investigation, action, proceeding or claim; (vi) Grantor has
received no notice that, and, to the best of Grantor’s knowledge and belief, there has been no
claim by any party that, any use, operation or condition of the Property has caused any
nuisance, trespass or any other liability or adverse condition on any other property, nor does
Grantor know of any basis for such notice or claim; and (vii) there are no present environmental
conditions or events, or to Grantor’s best knowledge, past environmental conditions or events,
on or near the Property that could be reasonably anticipated to materially adversely affect the
value of the Property.




(b) Grantor shall keep or cause the Property to be kept free from Hazardous



Substances (except those substances used by Grantor or the tenants of the Property in the
ordinary course of its or their business and in compliance with all Environmental Laws) and in
full compliance with all Environmental Laws, shall not install or use any underground storage
tanks, shall expressly prohibit the use, generation, handling, storage, production, processing
and disposal of Hazardous Substances by all tenants (except those substances used by tenants in
the ordinary course of their activities and in compliance with all Environmental Laws), invitees
and trespassers, and, without limiting the generality of the foregoing, during the term of this
Deed of Trust, shall not install in the Improvements or permit to be installed in the
Improvements asbestos or any substance containing asbestos. If required by Beneficiary or under
any Environmental Law, Grantor shall maintain an Operation and Maintenance Program (“O&M
Program”) for the management of asbestos, lead-based paint, radon or any other Hazardous
Substances at the Property.




(c) Grantor shall promptly notify Beneficiary if Grantor shall become aware of (i)



any Release or threatened Release of Hazardous Substances at, on, under, from, or affecting
or threatening to affect the Property (except those substances used by Grantor or tenants in the
ordinary course of their business or activities, respectively, and in compliance with all
Environmental Laws), (ii) any lien or filing of a lien, action or notice affecting or threatening
to affect the Property or Grantor resulting from any violation or alleged violation of
Environmental Law, (iii) any investigation, inquiry or proceeding concerning Grantor or the
Property pursuant to any Environmental Law or otherwise relating to Hazardous Substances, or (iv)
any occurrence, condition or state of facts which would render any representation or warranty in
this Section incorrect in any respect if made at the time of such discovery. Further, immediately
upon receipt of the. same, Grantor shall deliver to Beneficiary copies of any and all orders,
notices, permits, applications, reports, and other communications, documents and instruments
pertaining to the actual, alleged or potential non-compliance with any Environmental Laws in
connection with the Property or presence or existence of any Hazardous Substances at, on, about,
under, within, near or in connection with the Property (except those substances used in the
ordinary course of its or its tenants’ business and in compliance with all Environmental Laws).
Grantor shall, promptly and when and as required, at Grantor’s sole cost and expense, take all
actions as shall be necessary or advisable for compliance with the terms of this Section 1.30 or
for the remediation, of any and all portions of the Property or other affected property,
including, without limitation, all investigative, monitoring, removal,




36




containment, remedial and response actions in accordance with all applicable Environmental
Laws (and in all events in a manner satisfactory to Beneficiary) and shall further pay or cause
to be paid, at no expense to Beneficiary, all remediation, response, administrative and
enforcement costs of applicable governmental agencies which may be asserted against the Property.
In the event Grantor fails to do so (1) Beneficiary may, but shall not be obligated to, undertake
remediation at the Property or other affected property necessary to bring the Property into
conformance with the terms of Environmental Laws, and (2) Grantor hereby grants to Beneficiary
and its agents and employees access to the Property and a license to do all things Beneficiary
shall deem necessary to bring the Property into conformance with Environmental Laws. Any and all
costs and expenses reasonably incurred by Beneficiary in connection therewith, together with
interest thereon at the Default Interest Rate from the date incurred by Beneficiary until
actually paid by Grantor, shall be immediately paid by Grantor on demand and shall be secured by
this Deed of Trust and by all of the other Loan Documents securing all or any part of the
indebtedness evidenced by the Note. GRANTOR COVENANTS AND AGREES, AT GRANTOR’S SOLE COST AND
EXPENSE, TO INDEMNIFY, DEFEND (AT TRIAL AND APPELLATE LEVELS, AND WITH ATTORNEYS, CONSULTANTS AND
EXPERTS ACCEPTABLE TO BENEFICIARY), AND HOLD BENEFICIARY HARMLESS FROM AND AGAINST ANY AND ALL
LIENS, DAMAGES, LOSSES, LIABILITIES, OBLIGATIONS, SETTLEMENT PAYMENTS, PENALTIES, ASSESSMENTS,
CITATIONS, DIRECTIVES, CLAIMS, LITIGATION, DEMANDS, DEFENSES, JUDGMENTS, SUITS, PROCEEDINGS,
COSTS, DISBURSEMENTS AND EXPENSES OF ANY KIND OR OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS’, CONSULTANTS’ AND EXPERTS’ FEES AND DISBURSEMENTS ACTUALLY
INCURRED IN INVESTIGATING, DEFENDING, SETTLING OR PROSECUTING ANY CLAIM, LITIGATION OR
PROCEEDING) WHICH MAY AT ANY TIME BE IMPOSED UPON, INCURRED BY OR ASSERTED OR AWARDED AGAINST
BENEFICIARY OR THE PROPERTY, AND ARISING DIRECTLY OR INDIRECTLY FROM OR OUT OF: (A) THE PRESENCE,
RELEASE OR THREAT OF RELEASE OF ANY HAZARDOUS SUBSTANCES ON, IN, UNDER, AFFECTING OR THREATENING
TO AFFECT ALL OR ANY PORTION OF THE PROPERTY MANY SURROUNDING AREAS, REGARDLESS OF WHETHER OR NOT
CAUSED BY OR WITHIN THE CONTROL OF GRANTOR, EXCEPT TO THE EXTENT CAUSED SOLELY BY BENEFICIARY OR
ITS AGENTS; (B) THE VIOLATION OF ANY ENVIRONMENTAL LAWS RELATING TO, AFFECTING OR THREATENING TO
AFFECT THE PROPERTY, WHETHER OR NOT CAUSED BY OR WITHIN THE CONTROL OF GRANTOR, EXCEPT TO THE
EXTENT CAUSED SOLELY BY BENEFICIARY OR ITS AGENTS; (C) THE FAILURE BY GRANTOR TO COMPLY FULLY
WITH THE TERMS AND CONDITIONS OF THIS SECTION 1.30; (D) THE BREACH OF ANY REPRESENTATION
OR WARRANTY CONTAINED IN THIS SECTION 1.30; OR (E) THE ENFORCEMENT OF THIS SECTION
1.30, INCLUDING, WITHOUT LIMITATION, THE COST OF ASSESSMENT, CONTAINMENT AND/OR REMOVAL OF
ANY AND ALL HAZARDOUS SUBSTANCES ON AND/OR FROM ALL OR ANY PORTION OF THE PROPERTY OR ANY
SURROUNDING AREAS, T I COST OF ANY ACTIONS TAKEN IN RESPONSE TO THE PRESENCE, RELEASE OR T AT OF
RELEASE OF ANY HAZARDOUS SUBSTANCES ON, IN, UNDER OR AFFECTING ANY PORTION OF THE PROPERTY OR ANY
SURROUNDING AREAS TO PREVENT OR MINIMIZE SUCH RELEASE OR THREAT OF RELEASE SO T T IT DOES NOT




37



MIGRATE OR OTHERWISE CAUSE OR THREATEN DANGER TO PRESENT OR FUTURE PUBLIC HEALTH, SAFETY,
WELFARE OR THE ENVIRONMENT, AND COSTS INCURRED TO COMPLY WITH THE ENVIRONMENTAL LAWS IN
CONNECTION WITH ALL OR ANY PORTION OF THE PROPERTY OR ANY SURROUNDING AREAS. THE INDEMNITY SET
FORTH IN THIS SECTION 1.30(c) SHALL ALSO INCLUDE ANY DIMINUTION IN THE VALUE OF THE
SECURITY AFFORDED BY THE PROPERTY OR ANY FUTURE REDUCTION IN THE SALES PRICE OF THE PROPERTY BY
REASON OF ANY MATTER SET FORTH IN THIS SECTION 1.30(c), AND ANY AND ALL LIENS, DAMAGES,
LOSSES, LIABILITIES, OBLIGATIONS, SETTLEMENT PAYMENTS, PENALTIES, ASSESSMENTS, CITATIONS,
DIRECTIVES, CLAIMS, LITIGATION, DEMANDS, DEFENSES,. JUDGMENTS, SUITS, PROCEEDINGS, COSTS,
DISBURSEMENTS OR EXPENSES OF ANY KIND OR OF ANY NATURE WHATSOEVER RISING OUT OF OR RELATING TO
INJURY OR DEATH DUE TO EXPOSURE FROM HAZARDOUS SUBSTANCES THAT MAY BE PRESENT OR RELEASED AT, ON,
UNDER OR FROM THE PROPERTY. BENEFICIARY’S RIGHTS UNDER THIS SECTION SHALL SURVIVE PAYMENT IN FULL
OF THE INDEBTEDNESS SECURED HEREBY AND SHALL BE IN ADDITION TO ALL OTHER RIGHTS OF BENEFICIARY
UNDER THIS DEED OF TRUST, THE NOTE AND THE OTHER LOAN DOCUMENTS.




(d) Upon Beneficiary’s request, at any time after the occurrence of a default



hereunder or at such other time as Beneficiary has reasonable grounds to believe that
Hazardous Substances are or have been handled, generated, stored, processed, transported to or
from, or released or discharged from or disposed of on or around the Property (other than in the
normal course of Grantor’s or the tenants’ business or activities, respectively, and in
compliance with all Environmental Laws) or that the Grantor, any tenant or the Property may be in
violation of Environmental Laws, Grantor shall provide, at Grantor’s sole cost and expense, an
environmental site assessment or environmental compliance audit of the Property prepared by a
hydrogeologist or environmental engineer or other appropriate consultant approved by Beneficiary
to determine whether there has been a Release or threatened Release of Hazardous Substances at,
on, under, or from the Property onto adjoining properties and if the Property is in full
compliance with Environmental Laws (including asbestos containing material or lead-based paint).
If Grantor fails to provide such assessment or audit within sixty (60) days after such request,
Beneficiary may order the same, and Grantor hereby grants to Beneficiary and its employees and
agents access to the Property and a license to undertake such assessment or audit. The reasonable
cost of such assessment or audit, together with interest thereon at the Default Interest Rate (as
defined in the Note) from the date incurred by Beneficiary until actually paid by Grantor, shall
be immediately paid by Grantor on demand and shall be secured by this Deed of Trust and by all of
the other Loan Documents securing all or any part of the indebtedness evidenced by the Note.




(e) Without limiting the foregoing, Beneficiary and its authorized representatives



may, upon reasonable prior notice to Grantor (except in the event of an emergency) during normal
business hours and at its own expense, inspect the Property and Grantor’s records related thereto
for the purpose of determining compliance with Environmental Laws and the terms and conditions of
this Section 1.30.



38





(f) As used herein, the term “Release" shall include, without
limitation, any



intentional or unintentional placing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, discarding or abandoning of any
Hazardous Substance.




1.31 Indemnification; Subrogation.



(a) GRANTOR SHALL INDEMNIFY, DEFEND AND HOLD BENEFICIARY HARMLESS AGAINST: (i) ANY AND ALL
CLAIMS FOR BROKERAGE, LEASING, FINDER’S OR SIMILAR FEES WHICH MAY BE MADE RELATING TO THE
PROPERTY OR THE SECURED INDEBTEDNESS, EXCEPT SUCH CLAIMS AS ARISE SOLELY FROM THE GROSS
NEGLIGENCE OF WILLFUL MISCONDUCT OF BENEFICIARY (ii) ANY AND ALL LIABILITY, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, CLAIMS, ACTIONS, SUITS, LIENS, CHARGES, ENCUMBRANCES, COSTS AND EXPENSES
(INCLUDING BENEFICIARY’S REASONABLE ATTORNEYS’ FEES, TOGETHER WITH REASONABLE APPELLATE COUNSEL
FEES, IF ANY) OF WHATEVER KIND OR NATURE WHICH MAY BE ASSERTED AGAINST, IMPOSED ON OR INCURRED
BY BENEFICIARY UNDER ANY LEASE OR OCCUPANCY AGREEMENT, FOR ANY LOSS ARISING FROM A FAILURE OR
INABILITY TO COLLECT RENTS AND PROFITS OR IN CONNECTION WITH THE SECURED INDEBTEDNESS, THIS DEED
OF TRUST, THE PROPERTY, OR ANY PART THEREOF, OR THE EXERCISE BY BENEFICIARY OF ANY RIGHTS OR
REMEDIES GRANTED TO IT UNDER THIS DEED OF TRUST, AND ANY DEFAULT UNDER THIS DEED OF TRUST, (iii)
ANY LIENS (WHETHER JUDGMENTS, MECHANICS’, MATERIALMEN’S OR OTHERWISE), CHARGES AND ENCUMBRANCES
FILED AGAINST THE PROPERTY, AND (iv) ANY CLAIMS AND DEMANDS FOR DAMAGES OR INJURY, INCLUDING
CLAIMS FOR PROPERTY DAMAGE, PERSONAL INJURY OR WRONGFUL DEATH, ARISING OUT OF OR IN CONNECTION
WITH ANY ACCIDENT OR FIRE OR OTHER CASUALTY ON THE REAL ESTATE OR THE IMPROVEMENTS OR ANY
NUISANCE OR TRESPASS MADE OR SUFFERED THEREON, INCLUDING, IN ANY CASE, ATTORNEYS’ FEES, COSTS
AND EXPENSES AS AFORESAID, WHETHER AT PRETRIAL, TRIAL OR APPELLATE LEVEL FOR ANY CIVIL, CRIMINAL
OR ADMINISTRATIVE PROCEEDINGS. SHOULD BENEFICIARY INCUR ANY LIABILITY IN CONNECTION WITH THE
AFORESAID, THE AMOUNT THEREOF, INCLUDING, WITHOUT LIMITATION, COSTS, EXPENSES AND REASONABLE
ATTORNEYS’ FEES, TOGETHER WITH INTEREST THEREON AT THE DEFAULT INTEREST RATE (AS DEFINED IN THE
NOTE) FROM THE DATE INCURRED BY BENEFICIARY UNTIL ACTUALLY PAID BY GRANTOR, SHALL BE IMMEDIATELY
DUE AND PAYABLE TO BENEFICIARY BY GRANTOR ON DEMAND AND SHALL BE SECURED HEREBY AND BY ALL OF
THE OTHER LOAN DOCUMENTS SECURING ALL OR ANY PART OF THE INDEBTEDNESS EVIDENCED BY THE NOTE.
HOWEVER, NOT II G HEREIN S L BE CONSTRUED TO OBLIGATE GRANTOR TO INDEMNIFY, DEFEND AND HOLD
HARMLESS BENEFICIARY FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, CLAIMS, ACTIONS, SUITS, COSTS AND EXPENSES ENACTED AGAINST, IMPOSED ON OR INCURRED BY



39




BENEFICIARY BY REASON OF BENEFICIARY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THIS
INDEMNITY SHALL SURVIVE PAYMENT IN FULL OF THE INDEBTEDNESS SECURED HEREBY, BUT ONLY AS TO ACTS
OR OMISSIONS OCCURRING PRIOR TO SUCH PAYMENT, FORECLOSURE HEREOF BY BENEFICIARY, ACCEPTANCE BY
BENEFICIARY OF A DEED IN LIEU OF FORECLOSURE, OR BENEFICIARY’S TAKING POSSESSION OR CONTROL OF
THE PROPERTY.




(b) Beneficiary may engage the services of attorneys (i) if it is made a party



defendant to any litigation (or threatened action or claim) in connection with this Loan,
provided that such litigation has not arisen from Beneficiary’s gross negligence or willful
misconduct or (ii) to enforce the terms of this Deed of Trust or to protect its rights
hereunder, and in the event of any such engagement, Grantor shall pay Beneficiary’s attorneys’
fees (together with reasonable appellate counsel fees, if any), consultants’ fees, experts’
reasonable fees and expenses reasonably incurred by Beneficiary, whether or not an action is
actually commenced against Grantor. All references to “attorneys” in this Subsection and
elsewhere in this Deed of Trust shall include without limitation any attorney or law firm
engaged by Beneficiary and Beneficiary’s in-house counsel, and all references to “fees and
expenses” in this Subsection and elsewhere in this Deed of Trust shall include without
limitation any fees of such attorney or law firm and any allocation charges and allocation
costs of Beneficiary’s in-house counsel.




(c) A waiver of subrogation shall be obtained by Grantor from its insurance



carrier and, consequently, Grantor waives any and all right to claim or recover against
Beneficiary, its officers, employees, agents and representatives, for loss of or damage to
Grantor, the Property, Grantor’s property or the property of others under Grantor’s control
from any cause insured against or required to be insured against by the provisions of this Deed
of Trust.



1.32 Covenants with Respect to Indebtedness, Operations and Fundamental Changes of
Grantor. Grantor represents, warrants and covenants as of the date hereof and until such
time as the indebtedness secured hereby is paid in full, that Grantor:




(a) does not own and will not own any encumbered asset other than (i) the




Property, and (ii) incidental personal property necessary for the operation of the Property;




(b) is not engaged and will not engage in any business other than the ownership,




management and operation of the Property;




(c) will not enter into any contract or agreement with any member, manager,



general partner, principal or affiliate of Grantor or any affiliate thereof, except upon terms
and conditions that are intrinsically fair and substantially similar to those that would be
available on an arm’s length basis with third parties other than an affiliate;




(d) has not incurred and will not incur any debt, secured or unsecured, direct or



contingent (including guaranteeing any obligation), other than (i) the secured indebtedness, and
(ii) unsecured trade and operational debt incurred in the ordinary course of business; no debt



40




whatsoever may be secured (senior, subordinate or pari passu) by the Property except
the Indebtedness;




(e) has not made and will not make any loans or advances to any third party



(including any member, manager, general partner, principal or affiliate of Grantor, or any

guarantor);





(f) is and will be solvent and pay its debts from its assets as the same shall




become due;




(g) has done or caused to be done and will do all things necessary to preserve its



existence and corporate, limited liability company and partnership formalities (as
applicable), and will not, nor will any partner, limited or general, shareholder or member
thereof, amend, modify or otherwise change its partnership certificate, partnership agreement,
certificate, articles of incorporation, by-laws, articles of organization or operating
agreement or regulations in a manner which adversely affects Grantor’s, or any such partner’s,
member’s or shareholder’s existence as a single-purpose, single-asset “bankruptcy remote”
entity;




(h) will conduct and operate its business as presently conducted and operated;




(i) will maintain books and records and bank accounts separate from those of its




affiliates, including its general partners, principals and members;




(j) will be, and at all times will hold itself out to the public as, a legal entity



separate and distinct from any other entity (including any affiliate of Grantor, any
constituent party of Grantor, any guarantor or any affiliate of any constituent party of
guarantor), shall correct any known misunderstanding regarding its status as a separate
entity, shall conduct business in its own name, shall not identify itself or any of its
affiliates as a division or part of the other and shall maintain and utilize a separate
telephone number and separate stationery, invoices and checks;




(k) will file its own tax returns;




(1) will maintain adequate capital for the normal obligations reasonably



foreseeable in a business of its size and character and in light of its contemplated business
operations;




(m) will not, nor will any member, manager, shareholder, partner, principal or




affiliate, seek the dissolution or winding up, in whole or in part, of Grantor;




(n) will not enter into any transaction of merger or consolidation, or acquire by



purchase or otherwise all or substantially all of the business or assets of, or any stock or
beneficial ownership of, any entity;




(o) will not commingle the funds and other assets of Grantor with those of any




member, manager, general partner, principal or affiliate or any other person;




41



(p) 42




has and will maintain its assets in such a manner that it is not costly or



difficult to segregate, ascertain or identify its individual assets from those of any
affiliate or any other person;




(q) has, and any general partner or managing member of Grantor has, at all times



since their respective formation, observed all legal and customary formalities regarding their
respective formation and will continue to observe all legal and customary formalities;




(r) does not and will not hold itself out to be responsible for the debts or




obligations of any other person;




(s) upon the commencement of a voluntary or involuntary bankruptcy proceeding



by or against Grantor, Grantor shall not seek a supplemental stay or otherwise pursuant to 11
U.S.C. 105 or any other provision of the Act, or any other debtor relief law (whether
statutory, common law, case law, or otherwise) of any jurisdiction whatsoever, now or
hereafter in effect, which may be or become applicable, to stay, interdict, condition, reduce
or inhibit the ability of Beneficiary to enforce any rights of Beneficiary against any
guarantor or indemnitor of the secured obligations or any other party liable with respect
thereto by virtue of any indemnity, guaranty or otherwise.



1.33 Litigation. Grantor will give prompt written notice to Beneficiary of any
litigation or governmental proceedings pending or threatened (in writing) against Grantor
which might have a Material Adverse Effect.




1.34 ERISA.




(a) Grantor shall not engage in any transaction which would cause any obligation,



or action taken or to be taken, hereunder (or the exercise by Beneficiary of any of its rights
under the Note, this Deed of Trust or any of the other Loan Documents) to be a non-exempt
(under a statutory or administrative class exemption) prohibited transaction under ERISA.




(b) Grantor further covenants and agrees to deliver to Beneficiary such



certifications or other evidence from time to time throughout the term of this Deed of Trust,
as requested by Beneficiary in its sole discretion, that (i) Grantor is not an “employee
benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a
“governmental plan” within the meaning of Section 3(3) of ERISA; (ii) Grantor is not subject to
state statutes regulating investments and fiduciary obligations with respect to governmental
plans; and (iii) one or more of the following circumstances is true:




(x) Equity interests in Grantor are publicly offered securities within the




meaning of 29 C.F.R. Section 2510.3-101(b)(2);




(y) Less than twenty-five percent (25%) of each outstanding class of



equity interests in Grantor are held by “benefit plan investors” within the meaning of
29 C.F.R. Section 2510.3-101(f)(2); or




(z) Grantor qualifies as an “operating company” or a “real estate
operating



company” within the meaning of 29 C.F.R. Section 2510.3-101(c) or (e) or an investment
company registered under the Investment Company Act of 1940.



(c) GRANTOR SHALL INDEMNIFY BENEFICIARY AND DEF END HOLD BENEFICIARY HARMLESS FROM AND
AGAINST ALL CIVIL PENALTIES, EXCISE TAXES, OR OTHER LOSS, COST DAMAGE AND EXPENSE (INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS AND COSTS INCURRED IN THE
INVESTIGATION, DEFENSE AND SETTLEMENT OF CLAIMS AND LOSSES INCURRED IN CORRECTING ANY
PROHIBITED TRANSACTION OR IN THE SALE OF A PROHIBITED LOAN, AND IN OBTAINING ANY INDIVIDUAL
PROHIBITED TRANSACTION EXEMPTION UNDER ERISA THAT MAY BE REQUIRED, IN BENEFICIARY’S SOLE
DISCRETION) THAT BENEFICIARY MAY INCUR, DIRECTLY OR INDIRECTLY, AS A RESULT OF A DEFAULT UNDER
THIS SECTION 1.34. THIS INDEMNITY SHALL SURVIVE ANY TERMINATION, SATISFACTION OR
FORECLOSURE OF THIS DEED OF TRUST.




1.35 Intentionally Deleted.



1.36 Colorado Common Interest Ownership Act. All terms defined in the Colorado
Common Interest Ownership Act, Title 38, Article 33.3 of the Colorado Revised Statutes
(“CIOA”), shall have the same meaning when used in this Section. Without the prior written
consent of Beneficiary, Grantor shall not include the Property within a Common Interest
Community (“CIC”) and shall not initiate, request, consent to or join in any application,
petition or other action to elect treatment under CIOA. To the extent that the Property is
included within a CIC, Grantor shall (a) pay all assessments for the Property no later than
their due date (before penalties or interest attach), (b) not waive, release or allow to lapse,
and not exercise with respect to the Property, any Special Declarant right, (c) not file,
record or publish any plat or map that includes the Property and that shows contemplated
improvements on any property within the map or plat other than with the label “NEED NOT BE
BUILT,” (d) describe each individual lot, unit or site included within the Property from time
to time as a separate portion of real estate subject to a right of withdrawal, (e) preserve in
the Declaration the right to maintain on any portion of the Property a sales office, management
office and model, with such other specific information with respect thereto as CIOA requires,
(f) to the extent permitted by CIOA and the terms of the Declaration on the date of execution
of this Deed of Trust, maintain the existence of the period of declarant control and the right
to exercise all retained powers, (g) not initiate, request, consent to or join in any
application, petition or other action to merge or consolidate CICs with respect to the
Property, (h) to the extent permitted by CIOA and the terms of the Declaration on the date of
execution of this Deed of Trust, prevent the applicable Association from encumbering or
conveying any interest to real property, granting easements, leases, licenses and concessions
through or over the Common Elements, and assigning its right to future income, (i) not
initiate, request, consent to or join in any application, petition or other action to amend the
Declaration or Bylaws, and (j) comply with all requirements of the Declaration and CIOA
applicable to Grantor and the Property. Grantor agrees that Beneficiary may, at the expense of
Grantor and from time to time, apply to the Association applicable to the Property for a
statement of unpaid assessments.



43




1.37 Priority Over Special Districts. Grantor shall not, without the prior
written consent of Beneficiary, which may be withheld in Beneficiary’s discretion, consent to
or allow the creation of any so-called special districts, special improvement districts,
benefit assessment districts, or similar districts of any nature, or any other body or entity
of any type, or allow to occur any other additional taxes, assessments or other monetary
obligations or burdens on the Property, and this provision shall serve as RECORD NOTICE
to any such district or districts or any governmental entity under whose authority such
district or districts exist or are being formed that, should Grantor or any other person or
entity include all or any portion of the Property in such district or districts, whether formed
or in the process of formation, without first obtaining Beneficiary’s express written consent,
then the lien of this Deed of Trust and the rights and interests in the Property arising by
virtue of this Deed of Trust in favor of Beneficiary or its successors in interest (which term
shall include, without limitation, any foreclosure purchaser or purchaser acquiring by deed in
lieu of foreclosure, and any transferee of the Property following completion of foreclosure or
deed. in lieu thereof) shall be senior and superior to any taxes or liens of any nature
(whether statutory, contractual or otherwise) levied or imposed upon the Property or any
portion thereof as a result of the inclusion of the Property in such district or districts.



ARTICLE II

EVENTS OF DEFAULT





2.1 Events of Default. The occurrence of any of the following events shall be a
default




hereunder:




(a) Grantor fails to make any payment under the Note when due, subject to any




grace period set forth therein.




(b) Grantor fails to punctually perform any covenant, agreement, obligation, term



or condition hereof which requires payment of any money to Beneficiary (except those regarding
payments to be made under the Note, which failure is subject to any grace periods set forth in
the Note).




(c) Grantor fails to provide insurance as required by Section 1.4 hereof or
fails to



perform any covenant, agreement, obligation, term or condition set forth in Section
1.16 or Section 1.30 hereof.




(d) Grantor fails to perform any other covenant, agreement, obligation, term or



condition set forth herein, other than those otherwise described in this Section 2.1,
and, to the extent such failure or default is susceptible of being cured, the continuance of
such failure or default for thirty (30) days after written notice thereof from Beneficiary to
Grantor; provided, however, that if such default is susceptible of cure but such cure
cannot be accomplished with reasonable diligence within said period of time, and if Grantor
commences to cure such default promptly after receipt of notice thereof from Beneficiary, and
thereafter prosecutes the curing of such default with reasonable diligence, such period of time
shall be extended for such period of time as may be necessary to cure such default with
reasonable diligence, but not to exceed an additional sixty (60) days.




44




(e) Any representation or warranty made herein, in or in connection with any



application or commitment relating to the loan evidenced by the Note, or in any of the other
Loan Documents to Beneficiary by Grantor, by any principal, managing member or general partner
in Grantor or by any indemnitor or guarantor under any indemnity or guaranty executed in
connection with the loan secured hereby is determined by Beneficiary to have been false or
misleading in any material respect at the time made.



There shall be a sale, conveyance; disposition, alienation, hypothecation, leasing,
assignment, pledge, mortgage, granting of a security interest in or other transfer or further
encumbrancing of the Property, Grantor or its principal(s), general partner(s) or managing
member(s), or any portion thereof or any interest therein, in violation of Section 1.13
hereof.




(g) A default occurs under any of the other Loan Documents which has not been




cured within any applicable grace or cure period therein provided.




(h) Grantor, any manager of Grantor or any indemnitor or guarantor under any



indemnity or guaranty executed in connection with the loan secured hereby becomes insolvent, or
shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of
creditors, shall file a petition in bankruptcy, shall voluntarily be adjudicated insolvent or
bankrupt or shall admit in writing the inability to pay debts as they mature, shall petition or
apply to any tribunal for or shall consent to or shall not contest the appointment of a
receiver, trustee, custodian or similar officer for Grantor, for any such manager of Grantor,
or for any such indemnitor or guarantor or for a substantial part of the assets of Grantor, of
any such manager of Grantor or of any such indemnitor or guarantor, or shall commence any case,
proceeding or other action under any bankruptcy, reorganization, arrangement, readjustment or
debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter
in effect.




(i) A petition (“Petition”) is filed or any case, proceeding or other
action is



commenced against Grantor, against any manager of Grantor or against any indemnitor or
guarantor under any indemnity or guaranty executed in connection with the loan secured hereby
seeking to have an order for relief entered against it as debtor or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its debts or other
relief under any law relating to bankruptcy, insolvency, arrangement, reorganization,
receivership or other debtor relief under any law or statute of any jurisdiction, whether now
or hereafter in effect, or a court of competent jurisdiction enters an order for relief against
Grantor, against any manager of Grantor or against any indemnitor or guarantor under any
indemnity or guaranty executed in connection with the loan secured hereby, as debtor, or an
order, judgment or decree is entered appointing, with or without the consent of Grantor, of any
such manager of Grantor or of any such indemnitor or guarantor, a receiver, trustee, custodian
or similar officer for Grantor, for any such manager of Grantor or for any such indemnitor or
guarantor, or for any substantial part of any of the properties of Grantor, of any such manager
of Grantor or of any such indemnitor or guarantor, and if any such event shall occur, such
petition, case, proceeding, action, order, judgment or decree shall not be dismissed within
sixty (60) days after being commenced.



Grantor solicits or aids the solicitation of the filing of any Petition against Grantor
including, without limitation: (i) providing information regarding the identity of creditors or




45



the nature of creditors’ claims to any third party (other than Grantor’s attorneys,
accountants or other consultants as necessary in the ordinary course of Grantor’s business)
unless compelled to do so by order of a court of competent jurisdiction or by regulation
promulgated by a governmental agency, or (ii) paying the legal fees or expenses of any creditor
of or interest holder in Grantor with respect to any matter whatsoever.




(k) The Property or any part thereof shall be taken on execution or other process




of law in any action against Grantor.




(1) Grantor abandons all or a portion of the Property.




(m) The holder of any lien or security interest on the Property (without implying



the consent of Beneficiary to the existence or creation of any such lien or security interest),
whether superior or subordinate to this Deed of Trust or any of the other Loan Documents,
declares a default and such default is not cured within any applicable grace or cure period set
forth in the applicable document or such holder institutes foreclosure or other proceedings for
the enforcement of its remedies thereunder.




(n) The Property, or any part thereof, is subjected to actual or threatened waste
or



to removal, demolition or material alteration so that the value of the Property is materially
diminished thereby and Beneficiary determines (in its reasonable business judgment) that it is
not adequately protected from any loss, damage or risk associated therewith.




(o) Any dissolution, termination, partial or complete liquidation, merger or




consolidation of Grantor or any manager of Grantor.



ARTICLE III
REMEDIES 




3.1 Remedies Available. If there shall occur a default under this Deed of Trust,
and such



default has not been cured within any applicable grace or cure period, then this Deed of Trust
is subject to foreclosure as provided by law and Beneficiary may, at its option and by or
through a trustee, nominee, assignee or otherwise, to the fullest extent permitted by law,
exercise any or all of the following rights, remedies and recourses, either successively or
concurrently:




(a) Acceleration. Accelerate the maturity date of the Note and
declare any or all



of the indebtedness secured hereby to be immediately due and payable without any presentment,
demand, protest, notice or action of any kind whatever (each of which is hereby expressly
waived by Grantor), whereupon the same shall become immediately due and payable. Upon any such
acceleration, payment of such accelerated amount shall constitute a prepayment of the principal
balance of the Note and any applicable prepayment fee provided for in the Note shall then be
immediately due and payable.




(b) Entry on the Property. Without in any way curing or waiving any
default of



Grantor, either in person or by agent or by court-appointed receiver, with or without bringing
any action or proceeding, or by a receiver appointed by a court upon ex parte
application by Beneficiary




46



and without regard to the adequacy of its security, enter upon and take possession of
the Property, or any part thereof, in its own name, without force or with such force as is
permitted by law and without notice or process or with such notice or process as is required
by law, unless such notice and process is waivable, in which case Grantor hereby waives such
notice and process, and do any and all acts and perform any and all work which may be
desirable or necessary in Beneficiary’s judgment to complete any unfinished construction on
the Land, to preserve and/or enhance the value, marketability or rentability of the Property,
to increase the income therefrom, to manage and operate the Property or to protect the
security hereof, and all sums expended by Beneficiary therefor, together with interest thereon
at the Default Interest Rate (as defined in the Note), shall be immediately due and payable to
Beneficiary by Grantor on demand and shall be secured hereby and by all of the other Loan
Documents securing all or any part of the indebtedness evidenced by the Note.




(c) Collect Rents and Profits. With or without taking possession of
the Property,



sue for or otherwise collect the Rents and Profits, including those past due and unpaid, and
apply the same, less costs and expenses of operation and collection, including reasonable
attorneys’ fees, upon any indebtedness secured hereby, all in such order as Beneficiary in its
discretion may determine.




(d) Appointment of Receiver. Upon, or at any time prior or after,
initiating a



Public Trustee foreclosure, instituting any judicial foreclosure or instituting any other
foreclosure of the liens and security interests provided for herein or any other legal
proceedings hereunder, make application, ex-parte, to a court of competent
jurisdiction for appointment of a receiver for all or any part of the Property, as a matter of
strict right and without notice to Grantor and without regard to the adequacy of the Property
for the repayment of the indebtedness secured hereby or the solvency of Grantor or any person
or persons liable for the payment of the indebtedness secured hereby, and Grantor hereby
irrevocably consents to such appointment, waives any and all notices of and defenses to such
appointment (to the extent permitted by applicable law) and agrees not to oppose any
application therefor by Beneficiary, but nothing herein is to be construed to deprive
Beneficiary of any other right, remedy or privilege Beneficiary may now have under the law to
have a receiver appointed, provided, however, 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 the Rents
and Profits pursuant to other terms and provisions of this Deed of Trust or the Assignment.
Any such receiver shall have all of the usual powers and duties of receivers in similar cases,
including, without limitation, the full power to hold, develop, rent, lease, manage, maintain,
operate and otherwise use or permit the use of the Property upon such terms and conditions as
said receiver may deem to be prudent and reasonable under the circumstances as more fully set
forth in Section 3.3 below. Such receivership shall, at the option of Beneficiary,
continue until full payment of all of the indebtedness secured hereby or until title to the
Property shall have passed by foreclosure sale under this Deed of Trust or deed in lieu of
foreclosure.




(e) Foreclosure. Immediately commence an action to foreclose this Deed of
Trust



or to specifically enforce its provisions or any of the indebtedness secured hereby, pursuant
to the statutes in such case made and provided, and sell the Property or cause the Property to
be sold in accordance with the requirements and procedures provided by said statutes in a
single parcel or in several parcels at the option of Beneficiary. In the event foreclosure
proceeding are instituted or filed by Beneficiary, all expenses incident to such proceedings,
including but not limited to, attorneys’ fees and costs, shall be paid by Grantor and secured
by this Deed of Trust and by all of the other Loan




47



Documents securing all or any part of the indebtedness evidenced by the Note. The
secured indebtedness and all other obligations secured by this Deed of Trust, including,
without limitation, interest at the Default Interest Rate (as defined in the Note), any
prepayment charge, fee or premium required to be paid under the Note in order to prepay
principal (to the extent permitted by applicable law), reasonable attorneys’ fees and any other
amounts due and unpaid to Beneficiary under the Loan Documents, may be bid by Beneficiary in
the event of a foreclosure sale hereunder.



Judicial Remedies. Proceed by suit or suits, at law or in equity, to enforce the
payment of the indebtedness secured hereby or the other obligations of Grantor hereunder or
pursuant to the Loan Documents, to foreclose the liens and security interests of this Deed of
Trust as against all or any part of the Property, and to have all or any part of the Property
sold under the judgment or decree of a court of competent jurisdiction. In the event of a
judicial sale pursuant to a foreclosure decree, it is understood and agreed that Beneficiary or
its assigns may become the purchaser of the Property. This remedy shall be cumulative of any
other non-judicial remedies available to the Beneficiary with respect to the Loan Documents.
Proceeding with the request or receiving a judgment for legal relief shall not be or be deemed
to be an election of remedies or bar any available non-judicial remedy of the Beneficiary.




(g) Other. Exercise any other right or remedy available hereunder, under
any of



	 	 	 	 	 
	the other Loan Documents or at law or in equity.
	 	3.2	 	 	Application of Proceeds. To the fullest extent permitted by law, the proceeds of any

	 	 	 	 	 







sale under this Deed of Trust shall be applied, to the extent funds are so available, to the
following items in such order as Beneficiary in its discretion may determine:




(a) To payment of the costs, expenses and fees of taking possession of the



Property, and of holding, operating, maintaining, using, leasing, repairing, improving,
marketing and selling the same and of otherwise enforcing Beneficiary’s right and remedies
hereunder and under the other Loan Documents, including, but not limited to, a reasonable fee
to the Trustee, receivers’ fees, court costs, attorneys’, accountants’, appraisers’, managers’
and other professional fees, title charges and transfer taxes.




(b) To payment of all sums expended by Beneficiary under the terms of any of the



Loan Documents and not yet repaid, together with interest on such sums at the Default Interest
Rate (as defined in the Note).




(c) To payment of the secured indebtedness and all other obligations secured by



this Deed of Trust, including, without limitation, interest at the Default Interest Rate (as
defined in the Note) and, to the extent permitted by applicable law, any prepayment fee, charge
or premium required to be paid under the Note in order to prepay principal, in any order that
Beneficiary chooses in its sole discretion.




(d) The remainder, if any, of such funds shall be disbursed to Grantor or to the




person or persons legally entitled thereto.



48





3.3 Right and Authority of Receiver or Beneficiary in the Event of Default;
Power of



Attorney. Upon the occurrence of a default hereunder, which default is not cured
within any applicable grace or cure period, and entry upon the Property pursuant to
Section 3.1(b) hereof or appointment of a receiver pursuant to Section 3.1(d)
hereof, and under such terms and conditions as may be prudent and reasonable under the
circumstances in Beneficiary’s or the receiver’s sole discretion, all at Grantor’s expense,
Beneficiary or said receiver, or such other persons or entities as they shall hire, direct or
engage, as the case may be, may do or permit one or more of the following, successively or
concurrently: (a) enter upon and take possession and control of any and all of the Property;
(b) take and maintain possession of all documents, books, records, papers and accounts
relating to the Property; (c) exclude Grantor and its agents, servants and employees wholly
from the Property; (d) manage and operate the Property; (e) preserve and maintain the
Property; (f) make repairs and alterations to the Property; (g) complete any construction or
repair of the Improvements, with such changes, additions or modifications of the plans and
specifications or intended disposition and use of the Improvements as Beneficiary may in its
sole discretion deem appropriate or desirable to place the Property in such condition as will,
in Beneficiary’s sole discretion, make it or any part thereof readily marketable or rentable;
(h) conduct a marketing or leasing program with respect to the Property, or employ a marketing
or leasing agent or agents to do so, directed to the leasing or sale of the Property under
such terms and conditions as Beneficiary may in its sole discretion deem appropriate or
desirable; (i) employ such contractors, subcontractors, materialmen, architects, engineers,
consultants, managers, brokers, marketing agents, or other employees, agents, independent
contractors or professionals, as Beneficiary may in its sole discretion deem appropriate or
desirable to implement and effectuate the rights and powers herein granted; (j) execute and
deliver, in the name of Beneficiary as attorney-in-fact and agent of Grantor or in its own
name as Beneficiary, such documents and instruments as are necessary or appropriate to
consummate authorized transactions; (k) enter into such leases, whether of real or personal
property, or tenancy agreements, under such terms and conditions as Beneficiary may in its
sole discretion deem appropriate or desirable; (1) collect and receive the Rents and Profits
from the Property; (m) eject tenants or repossess personal property, as provided by law, for
breaches of the conditions of their leases or other agreements; (n) sue for unpaid Rents and
Profits, payments, income or proceeds in the name of Grantor or Beneficiary; (o) maintain
actions in forcible entry and detainer, ejectment for possession and actions in distress for
rent; (p) compromise or give acquittance for Rents and Profits, payments, income or proceeds
that may become due; (q) delegate or assign any and all rights and powers given to Beneficiary
by this Deed of Trust; and (r) do any acts which Beneficiary in its sole discretion deems
appropriate or desirable to protect the security hereof and use such measures, legal or
equitable, as Beneficiary may in its sole discretion deem appropriate or desirable to
implement and effectuate the provisions of this Deed of Trust. This Deed of Trust shall
constitute a direction to and full authority to any lessee, or other third party who has
heretofore dealt or contracted or may hereafter deal or contract with Grantor or Beneficiary,
at the request of Beneficiary, to pay all amounts owing under any lease, contract, concession,
license or other agreement to Beneficiary without proof of the default relied upon. Any such
lessee or third party is hereby irrevocably authorized to rely upon and comply with (and shall
be fully protected by Grantor in so doing) any request, notice or demand by Beneficiary for
the payment to Beneficiary of any Rents and Profits or other sums which may be or thereafter
become due under its lease, contract, concession, license or other agreement, or for the
performance of any undertakings under any such lease, contract, concession, license or other
agreement, and shall have no right or duty to inquire whether any default under this Deed of
Trust or under any of the other Loan Documents has actually occurred or is then existing.
Grantor hereby




49



constitutes and appoints Beneficiary, its assignees, successors, transferees and
nominees, as Grantor’s true and lawful attorney-in-fact and agent, with full power of
substitution in the Property, in Grantor’s name, place and stead, to do or permit any one or
more of the foregoing described rights, remedies, powers and authorities, successively or
concurrently, and said power of attorney shall be deemed a power coupled with an interest and
irrevocable so long as any indebtedness secured hereby is outstanding. Any money advanced by
Beneficiary in connection with any action taken under this Section 3.3, together with
interest thereon at the Default Interest Rate (as defined in the Note) from the date of making
such advancement by Beneficiary until actually paid by Grantor, shall be a demand obligation
owing by Grantor to Beneficiary and shall be secured by this Deed of Trust and by every other
instrument securing the secured indebtedness.




3.4 Occupancy After Foreclosure. In the event there is a foreclosure sale
hereunder and at



the time of such sale, Grantor or Grantor’s representatives, successors or assigns, or any
other persons claiming any interest in the Property by, through or under Grantor (except
tenants of space in the Improvements subject to leases entered into prior to the date of such
foreclosure sale), are occupying or using the Property, or any part thereof, then, to the
extent not prohibited by applicable law, and subsequent to the expiration of any applicable
redemption period, each and all shall, at the option of Beneficiary or the purchaser at such
sale, as the case may be, immediately become the tenant of the purchaser at such sale, which
tenancy shall be a tenancy from day-to-day, terminable at the will of either landlord or
tenant, at a reasonable rental per day based upon the value of the Property occupied or used,
such rental to be due daily to the purchaser. Further, to the extent permitted by applicable
law, in the event the tenant fails to surrender possession of the Property upon the
termination of such tenancy, the purchaser shall be entitled to institute and maintain an
action for unlawful detainer of the Property in the appropriate court of the county in which
the Land is located.




3.5 Notice to Account Debtors. Beneficiary may, at any time after a default
hereunder,



which default is not cured within any applicable grace or cure period, notify the account
debtors and obligors of any accounts, chattel paper, negotiable instruments or other evidences
of indebtedness to Grantor included in the Property to pay Beneficiary directly. Grantor shall
at any time or from time to time upon the request of Beneficiary provide to Beneficiary a
current list of all such account debtors and obligors and their addresses.




3.6 Cumulative Remedies. All remedies contained in this Deed of Trust are
cumulative



and Beneficiary shall also have all other remedies provided at law and in equity or in any
other Loan Documents. Such remedies may be pursued separately, successively or concurrently at
the sole subjective direction of Beneficiary and may be exercised in any order and as often as
occasion therefor shall arise. No act of Beneficiary shall be construed as an election to
proceed under any particular provisions of this Deed of Trust to the exclusion of any other
provision of this Deed of Trust or as an election of remedies to the exclusion of any other
remedy which may then or thereafter be available to Beneficiary. No delay or failure by
Beneficiary to exercise any right or remedy under this Deed of Trust shall be construed to be
a waiver of that right or remedy or of any default hereunder. Beneficiary may exercise any one
or more of its rights and remedies at its option without regard to the adequacy of its
security.




3.7 Payment of Expenses. Grantor shall pay on demand all of Beneficiary’s expenses



reasonably incurred in any efforts to enforce any terms of this Deed of Trust, whether or not any




50




lawsuit is filed and whether or not foreclosure is commenced but not completed, including,
but not limited to, reasonable legal fees and disbursements, foreclosure costs and title charges,
together with interest thereon from and after the date incurred by Beneficiary until actually paid
by Grantor at the Default Interest Rate (as defined in the Note), and the same shall be secured by
this Deed of Trust and by all of the other Loan Documents securing all or any part of the
indebtedness evidenced by the


Note.



ARTICLE IV

MISCELLANEOUS TERMS AND CONDITIONS




	 	 	 	 	 	 	 
	 	 	 	4.1	 	 	Time of Essence. Time is of the essence with respect to all provisions of this Deed of

	 	 	 	 	 	 	 

	Trust.
	 	

	 	


	 	 	 	4.2	 	 	Release of Deed of Trust. If and when Grantor has paid all of the secured

	 	 	 	 	 	 	 







indebtedness as the same becomes due and payable, or there is a Defeasance regarding the lien of
this Deed of Trust in accordance with, and in satisfaction of, the provisions of  Section
1.35 of this Deed of Trust, then, and in such event only, all rights under this Deed of Trust
shall terminate, except for those provisions hereof which by their terms survive, and the Property
shall become wholly clear of the liens, security interests, conveyances and assignments evidenced
hereby, which shall be released by Beneficiary in due form at Grantor’s cost. Grantor shall be
responsible for the recordation of such release and payment of any recordation costs associated
therewith.



4.3 Certain Rights of Beneficiary. Without affecting Grantor’s liability for the
payment of



any of the indebtedness secured hereby, Beneficiary may from time to time and without notice to
Grantor: (a) release any person liable for the payment of the indebtedness secured hereby; (b)
extend or modify the terms of payment of the indebtedness secured hereby so long as such extension
or modification does not materially increase any obligation of Grantor under the Note or any other
Loan Document; (c) accept additional real or personal property of any kind as security or alter,
substitute or release any property securing the indebtedness secured hereby; (d) recover any part
of the Property subdivision map or plat thereof; (f) join in drafting the lien; or (g) join in any
extension of this Deed of Trust or any agreement subordinating the lien hereof.



4.4 Notices. Any notice, report, demand or other instrument authorized or required to
be



given or furnished hereunder or as required by law (“Notices”) shall be in writing and shall be
given as follows: (a) mail and delivery; (b) by deposit in the United States mail as first class
certified mail, ‘own’ requested, -cage paid; (c) by overnight nationwide commercial courier
service; or (d)


by telecopy transmission by duplicate notice in accordance with any of clauses (a)-(c) addressed to
the party intended to receive the same at the following addresses:



Beneficiary: Column Financial, Inc.


11 Madison Avenue


5th Floor


New York, New York 10010-3629 Attn: Edmund Taylor


Telecopier: 212-325-8106


Re: Highlands Ranch East Medical Office Douglas County, Colorado



Loan Amount: $4,968,750.00



Column Loan Number: 949951



With copies to:



Credit Suisse First Boston Mortgage Capital LLC


Legal & Compliance Department


One Madison Avenue




New York, New York 10010



Attn: Pamela L. McCormack, Esq.



Telecopier: 917-326-7805



Re: Highlands Ranch East Medical Office



Douglas County, Colorado



Loan Amount: $4,968,750.00



Column Loan Number: 949951



Servicer: KeyCorp. Real Estate Capital Markets



911 Main Street


Suite 1500



Kansas City, MO 64105



Telecopier: (816) 460-2140



Attn: Diane Haislip



Re: Highlands Ranch East Medical Office



Douglas County, Colorado



Loan Amount: $4,968,750.00


Column Loan Number: 949951



Any party may change the address to which any such Notice is to be delivered to any other
address within the United States of America, by furnishing ten (10) days written notice of such
change to the other parties in accordance with the provisions of this Section 4.4. All notices,
demands and requests shall be effective upon personal delivery, or one (1) business day after being
deposited with the private courier service, or two (2) business days after being deposited in the
United States mail as required above. The inability to deliver Notices because of a changed address
of which no Notice was given, or rejection or refusal to accept any Notice offered for delivery
shall be deemed to be receipt of the Notice as of the date of such inability to deliver or
rejection or refusal to accept delivery. Notice for either party may be given by its respective
counsel. Additionally, notice from Beneficiary may also be given by the Servicer.



4.5 Successors and Assigns. The terms, provisions, indemnities, covenants and



conditions hereof shall be binding upon Grantor and the successors and assigns of Grantor,
including all successors in interest in and to all or any part of the Property, and shall inure to
the benefit of Beneficiary and its successors and assigns and shall constitute covenants running
with the land. If Grantor consists of more than one person or entity, each will be jointly and
severally liable to perform the obligations of Grantor.



4.6 Severabilitv. A determination that any provision of this Deed of Trust is



unenforceable or invalid shall not affect the enforceability or validity of any other provision.



4.7 Gender. Within this Deed of Trust, words of any gender shall be held and construed



to include any other gender, and words in the singular shall be held and construed to include
the plural, and vice versa, unless the context otherwise requires.



4.8 Waiver; Discontinuance of Proceedings. Beneficiary may waive any single default by



Grantor hereunder without waiving any other prior or subsequent default, and may remedy any default
by Grantor hereunder without waiving the default remedied. Neither the failure or delay by
Beneficiary in exercising, any right, power or remedy upon any default by Grantor hereunder shall
be construed as a waiver of such default or as a waiver of the right to exercise any such right,
power or remedy at a later date. No single or partial exercise by Beneficiary of any right, power
or remedy hereunder shall exhaust the same or shall preclude any other or further exercise thereof,
and every such right, power or remedy hereunder may be exercised at any time and from time to time.
No modification or waiver of any provision hereof nor consent to any departure by Grantor therefrom
shall in any event be effective unless the same shall be in writing and signed by Beneficiary, and
then such waiver or consent shall be effective only in the specific instance and for the specific
purpose given. No notice to nor demand on Grantor in any case shall of itself entitle Grantor to
any other or



further notice or demand in similar or other circumstances. Acceptance by Beneficiary of
any payment in an amount less than the amount then due on any of the secured indebtedness shall be
deemed an acceptance on account only and shall not in any way affect the existence of a default
hereunder.




4.9 Section Headings. The headings of the sections and paragraphs of this Deed of
Trust



are for convenience of reference only, are not to be considered a part hereof and shall not limit
or otherwise affect any of the terms hereof.



4.10 GOVERNING LAW. THIS DEED OF TRUST WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO, PROVIDED THAT TO THE EXTENT THAT ANY OF SUCH
LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, IN WHICH CASE SUCH FEDERAL LAW SHALL SO
GOVERN AND BE CONTROLLING; AND PROVIDED FURTHER THAT THE LAWS OF THE STATE IN WHICH THE LAND IS
LOCATED SHALL GOVERN AS TO THE CREATION, PRIORITY AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS
IN PROPERTY LOCATED IN SUCH STATE.



4.11 Counting of Days. The term “days” when used herein shall mean calendar days. If
any time period ends on a Saturday, Sunday or holiday officially recognized by the state within
which the Land is located, the period shall be deemed to end on the next succeeding business day.
The term “business day" or “Business Day" when used herein shall mean a weekday,
Monday through Friday, except a legal holiday or a day on which banking institutions in New York,
New York are authorized by law to be closed.



4.12 Application of the Proceeds of the Note. 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, irrespective of whether said liens, security interests, charges or encumbrances are
released.



4.13 Unsecured Portion of Indebtedness. If any part of the secured indebtedness
cannot be lawfully secured by this Deed of Trust or if any part of the Property cannot be lawfully
subject to the lien and security interest hereof to the full extent of such indebtedness, then all
payments made shall be applied on said indebtedness first in discharge of that portion thereof
which is unsecured by this Deed of Trust.



4.14 Cross Default. A default hereunder which has not been cured within any
applicable grace or cure period shall be a default under each of the other Loan Documents.



4.15 Interest After Sale. In the event the Property or any part thereof shall be sold
upon foreclosure as provided hereunder, to the extent permitted by law, the sum for which the same
shall have been sold shall, for purposes of redemption (if applicable pursuant to the laws of the
state in which the Property is located), bear interest at the Default Interest Rate (as defined in
the Note).




54



4.16 Construction of this Document. This document may be construed as a
mortgage, security deed, deed of trust, chattel mortgage, conveyance, assignment, security
agreement, pledge, financing statement, hypothecation or contract, or any one or more of the
foregoing, in order to fully effectuate the liens and security interests created hereby and the
purposes and agreements herein set forth.



4.17 No Merger. It is the desire and intention of the parties hereto that this Deed of
Trust and the lien hereof do not merge in fee simple title to the Property.



4.18 Rights With Respect to Junior Encumbrances. Any person or entity purporting to
have or to take a junior mortgage or other lien upon the Property or any interest therein shall be
subject to the rights of Beneficiary to amend, modify, increase, vary, alter or supplement this
Deed of Trust, the Note or any of the other Loan Documents, to extend the maturity date of the
indebtedness secured hereby, to increase the amount of the indebtedness secured hereby, to waive or
forebear the exercise of any of its rights and remedies hereunder or under any of the other Loan
Documents and to release any collateral or security for the indebtedness secured hereby, in each
and every case without obtaining the consent of the holder of such junior lien and without the lien
or security interest of this Deed of Trust losing its priority over the rights of any such junior
lien.



4.19 Beneficiary May File Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings
affecting Grantor or the principals, members or general partners in Grantor, or their respective
creditors or property, Beneficiary, to the extent permitted by law, shall be entitled to file such
proofs of claim and other documents as may be necessary or advisable in order to have the claims of
Beneficiary allowed in such proceedings for the entire secured indebtedness at the date of the
institution of such proceedings and for any additional amount which may become due and payable by
Grantor hereunder after such date.



4.20 After-Acquired Property. All property acquired by Grantor after the date of this
Deed of Trust which by the terms of this Deed of Trust shall be subject to the lien and the
security interest created hereby, shall immediately upon the acquisition thereof by Grantor and
without further deed, conveyance or assignment become subject to the lien and security interest
created by this Deed of Trust.



4.21 No Representation. By accepting delivery of any item required to be observed,
performed or fulfilled or to be given to Beneficiary pursuant to the Loan Documents, including, but
not limited to, any officer’s certificate, balance sheet, statement of profit and loss or other
financial statement, survey, appraisal or insurance policy, Beneficiary shall not 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 of delivery thereof
shall not be or constitute any warranty, consent or affirmation with respect thereto by
Beneficiary.



4.22 Counterparts. This Deed of Trust may be executed in any number of counterparts,
each of which shall be effective only upon delivery and thereafter shall be deemed an original, and
all of which shall be taken to be one and the same instrument, for the same effect as if all
parties hereto had signed the same signature page.




55



4.23 Personal Liability. Notwithstanding anything to the contrary contained in
this Deed of Trust, the liability of Grantor and its members or general partners for the
indebtedness secured hereby and for the performance of the other agreements, covenants and
obligations contained herein and in the Loan Documents shall be limited as set forth in
Section 1.5 of the Note; provided, however, that nothing herein shall be deemed to be a
waiver of any right which Beneficiary may have under Sections 506(a), 506(b), 1111(b) or any other
provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the indebtedness
secured hereby or to require that all collateral shall continue to secure all indebtedness owing
to Beneficiary in accordance with the Note, this Deed of Trust and the other Loan Documents.



4.24 Recording and Filing. Grantor will cause the Loan Documents and all amendments
and supplements thereto and substitutions therefor to be recorded, filed, re-recorded and re-filed
in such manner and in such places as Beneficiary shall reasonably request, and will pay on demand
all such recording, filing, re-recording and re-filing taxes, fees and other charges. Grantor
shall reimburse Beneficiary, or its servicing agent, for the costs incurred in obtaining any tax
certificate on the Property.



4.25 Entire Agreement and Modifications. This Deed of Trust and the other Loan
Documents contain the entire agreements between the parties and supersede any prior agreements
(oral or written), and may not be amended, revised, waived, discharged, released or terminated
orally but only by a written instrument or instruments executed by the party against which
enforcement of the amendment, revision, waiver, discharge, release or termination is asserted.



4.26 Maximum Interest. The provisions of this Deed of Trust and of all agreements
between Grantor and Beneficiary, whether now existing or hereafter arising and whether written or
oral, are hereby expressly limited so that in no contingency or event whatsoever, whether by
reason of demand or acceleration of the maturity of the Note or otherwise, shall the amount paid,
or agreed to be paid (“Interest”) to Beneficiary for the use, forbearance or detention of
the money loaned under the Note exceed the maximum amount permissible under applicable law. If,
from any circumstance whatsoever, performance or fulfillment of any provision hereof or of any
agreement between Grantor and Beneficiary shall, at the time performance or fulfillment of such
provision shall be due, exceed the limit for Interest prescribed by law or otherwise transcend the
limit of validity prescribed by applicable law, then ipso facto the obligation to be
performed or fulfilled shall be reduced to such limit, and if, from any circumstance whatsoever,
Beneficiary shall ever receive anything of value deemed Interest by applicable law in excess of
the maximum lawful amount, an amount equal to any excessive Interest shall be applied to the
reduction of the principal balance owing under the Note in the inverse order of its maturity
(whether or not then due) or at the option of Beneficiary be paid over to Grantor, and not to the
payment of Interest. All Interest (including any amounts or payments judicially or otherwise under
law deemed to be Interest) contracted for, charged, taken, reserved, paid or agreed to be paid to
Beneficiary shall, to the extent permitted by applicable law, be amortized, prorated, allocated
and spread throughout the full term of the Note, including any extensions and renewals thereof
until payment in full of the principal balance of the Note so that the Interest thereon for such
full term will not exceed at any time the maximum amount permitted by applicable law. This Section
will control all agreements between Grantor and Beneficiary.




56



4.27 Application of Default Interest Rate Not a Waiver. Application of the
Default Interest Rate (as defined in the Note) shall not be deemed to constitute a waiver of any
default or any rights or remedies of Beneficiary under this Deed of Trust, any other Loan Document
or applicable Legal Requirements, or a consent to any extension of time for the payment or
performance of any obligation with respect to which the Default Interest Rate (as defined in the
Note) may be invoked.



4.28 Interest Payable by Beneficiary. Beneficiary shall cause funds in the TILC
Reserve (the “Funds”) to be deposited into interest bearing accounts of the type
customarily maintained by Beneficiary or its servicing agent for the investment of similar
reserves, which accounts may not yield the highest interest rate then available. The Funds shall be
held in an account in Beneficiary’s name (or such other account name as Beneficiary may elect) at a
financial institution or other depository selected by Beneficiary (or its servicer) in its sole
discretion (collectively, the “Depository Institution”). Grantor shall earn no more than an
amount of interest on the Funds equal to an amount determined by applying to the average monthly
balance of such Funds the quoted interest rate for the Depository Institution’s money market
savings account, as such rate is determined from time to time (such allocated amount being referred
to as “Grantor’s Interest”). Beneficiary or its Depository Institution shall be entitled to
report under Grantor’s Federal tax identification number, the Grantor’s Interest on the Funds. If
the Depository Institution does not have an established money market savings account (or if an
interest rate for such account cannot otherwise be determined in connection with the deposit of
such Funds), a comparable interest rate quoted by the Depository Institution and acceptable to
Beneficiary (or its servicer) in its reasonable discretion shall be used. The amount of Grantor’s
Interest allocated to Funds shall be added to the balance in the TILC Reserve and shall be
disbursed for payment of the items for which other Funds in the TILC Reserve are to be disbursed.



4.29 Further Stipulations. The additional covenants, agreements and provisions set
forth in Exhibit C attached hereto, if any, shall be a part of this Deed of Trust and
shall, in the event of any conflict between such further stipulations and any of the other
provisions of this Deed of Trust, be deemed to control.



4.30 Relationship of the Parties. The relationship between Grantor and Beneficiary is
that of a borrower and a lender only and neither of those parties is, nor shall it hold itself out
to be, the agent, employee, joint venturer or partner of the other party.



4.31 Fixture Filing. This Deed of Trust shall be effective from the date of its
recording as a financing statement filed as a fixture filing with respect to all goods constituting
part of the Property which are .or are to become fixtures. This Deed of Trust shall also be
effective as a financing statement covering minerals or the like (including oil and gas) and
accounts subject to subsection C.R.S. 4-9-103(5) of the Colorado Uniform Commercial Code, as
amended, and is to be filed for record in the Real Estate Records of the county where the Property
is situated. The mailing address of Grantor and the address of Beneficiary from which information
concerning the security interests may be obtained are set forth in Section 1.22 above.



4.32 Cooperation With Rating Agencies and Investors. Grantor covenants and agrees that
in the event Beneficiary decides to include the Loan as an asset of a Secondary Market Transaction,
Grantor shall (a) at Beneficiary’s request, meet with representatives of the Rating Agencies and/or
investors to discuss the business and operations of the Property, and (b) permit Beneficiary or its




57



representatives to provide related information to the Rating Agencies and/or investors, and
(c) cooperate with the reasonable requests of the Rating Agencies and/or investors in connection
with all of the foregoing.



4.33 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.




(a) GRANTOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY
AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (i) SUBMITS TO PERSONAL
JURISDICTION IN THE STATE OF COLORADO OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING
FROM OR RELATING TO THE NOTE, THIS DEED OF TRUST OR ANY OTHER OF THE LOAN DOCUMENTS, (ii) AGREES
THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION PRESIDING OVER DOUGLAS COUNTY, COLORADO, (iii) SUBMITS TO THE JURISDICTION OF SUCH
COURTS, AND (iv) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT IT WTI I, NOT BRING
ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF
BENEFICIARY TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). TO THE EXTENT PERMITTED
BY APPLICABLE LAW, GRANTOR FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL,
POSTAGE PREPAID, TO THE GRANTOR AT THE ADDRESS FOR NOTICES DESCRIBED IN SECTION 4.4
HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND
EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED
IN ANY OTHER MANNER PERMITTED BY LAW).



(b) GRANTOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY
AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER
FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN
ANY WAY RELATING TO THE INDEBTEDNESS SECURED HEREBY OR ANY CONDUCT, ACT OR OMISSION OF BENEFICIARY
OR GRANTOR, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS OR
ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH BENEFICIARY OR GRANTOR IN CONNECTION WITH THE
INDEBTEDNESS SECURED HEREBY, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE.



IN WITNESS WHEREOF, Grantor, intending to be legally bound hereby, has duly executed this
Deed of Trust to be effective as of October 18, 2002.



GRANTOR:



HRMED, LLC, a Colorado limited liability company



By: Neil Littmann

Name: Neil Littmann

Title: Manager




	 	 	 
	STATE OF COLORADO§

COUNTY OF BOULDER

	 	

§

§






This instrument was acknowledged before me on this 17th day of October, 2002, by Neil
Littmann, as Manager of HRMED, LLC, a Colorado limited liability company on behalf of said company.



Given under my hand and seal of office the day and year last above written.



/s/ Kenneth Diamond


Kenneth Diamond


My Commission Expires: May 18, 2005