exv10w35



 





Exhibit 10.35




AMENDED AND RESTATED CONSOLIDATED PROMISSORY NOTE SECURED BY

DEED OF TRUST




	 	 	 
	$75,402,559

	 	August 28, 1998







          For value received, BUTERA PROPERTIES, LLC, a Delaware limited
liability company, BUTERA PROPERTIES II, LLC, a Maryland limited
liability company, BUTERA GATEWAY CENTER, LLC, a Maryland limited
liability company, BUTERA GIRARD PLACE, LLC, a Maryland limited liability
company, BUTERA GIRARD BUSINESS CENTER, LLC, a Maryland limited liability
company, BUTERA GOLDENROD LANE, LLC, a Maryland limited liability company
THIRTY WEST LLLP a Maryland limited liability limited partnership, TRB,
INC., a Colorado corporation, and WOODSTONE ASSOC., a Colorado general
partnership (hereinafter referred to as “Maker”), jointly and severally
promise to pay to the order of CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC, a Delaware limited liability company (“Lender” and also
sometimes “Payee”), having its principal office at 11 Madison Avenue, New
York, New York 10010, or at such place as the holder hereof may from time
to time designate in writing, the principal sum of SEVENTY-FIVE MILLION
FOUR HUNDRED TWO THOUSAND FIVE HUNDRED FIFTY-NINE DOLLARS ($75,402,559),
in lawful money of the United States of America, with interest thereon to
be computed on the unpaid principal balance from time to time outstanding
at the Applicable Interest Rate (as hereinafter defined), and to be paid
in installments as follows:




	A.	 	A payment of interest only on the date hereof with
respect to the interest
accrual period from the date hereof to and including
September 10 1998;
	 
	B.	 	A constant payment of $487,056.38 (such amount
hereinafter the
“Consolidated Monthly Payment Amount”), on the eleventh day
of
October, 1998 and on the eleventh day of each calendar
month thereafter
up to and including the eleventh day of September, 2028;
(each a
“Payment Date”); each of such payments to be applied (a) to
the
payment of interest computed at the Initial Term Interest
Rate (as
hereinafter defined); and (b) the balance applied toward
the reduction of
the principal sum;




and the balance of said principal sum together with all accrued and
unpaid interest thereon shall be due and payable on the eleventh day of
September, 2028 (the “Maturity Date”). Interest on the principal sum of
this Note shall be calculated on the basis of the actual number of days
elapsed and a three-hundred-sixty (360) day year. The constant payment
required hereunder is based on an amortization schedule of
three-hundred-sixty (360) months. For purposes of making payments
hereunder, but not for purposes of calculating interest accrual periods
if the eleventh (llth) day of a given month is not a Business Day (as
hereinafter defined), then amounts due on the Payment Date for such
month shall be due on the next




 









 







succeeding Business Day. All amounts due under this Note shall be payable
without setoff, counterclaim or any other deduction whatsoever.




          1.   As used in this Note:



          (a) The term “Annual Budget” shall mean an annual budget submitted by
Maker to Payee in accordance with the terms of paragraph 8(b) herein.



          (b) The term “Anticipated Repayment Date” shall mean September 11,
2008.



          (c) The term “Applicable Interest Rate” shall mean from (i) the date of
this Note through but not including the Anticipated Repayment Date, the
Initial Term Interest
Rate, and (ii) from and after the Anticipated Repayment Date through and
including the date
this Note is paid in full, the Extended Term Rate.



          (d) The term “Approved Annual Budget” shall mean each Annual Budget
approved by Payee in accordance with terms herein.



          (e) The term “Business Day” shall mean a day other than (i) a Saturday or
Sunday, or (ii) any day on which commercial banks in New York City are not
open for
general banking business.



          (f) The term “Capital Expenditures” shall mean for any period, the
amount expended for items capitalized under generally accepted accounting
principles
including expenditures for building improvements or major repairs, leasing
commissions and
tenant improvements.



          (g) The term “Cash Expenses” shall mean, collectively, the Consolidated
Cash Expenses and the Wedgewood Cash Expenses.



          (h) The term “Cash Management Agreement” shall have the meaning assigned
to such term in the Deeds of Trust.



          (i) The term “Consolidated Cash Expenses” shall mean for any period, the
operating expenses for the Consolidated Trust Property as set forth in an
Approved Annual Budget to the extent that such expenses are actually incurred
by Maker minus payments into the Tax and Insurance Impound Fund and the
Replacement Escrow Fund pursuant to the Consolidated Deed of Trust.



          (j) The term “Consolidated Deed of Trust” shall mean the Amended,
Restated and Consolidated Deed of Trust and Security Agreement of even date
herewith in the amount of this Note and the Wedgewood Note, given by Maker for
the use and benefit of Payee covering the fee estate of Maker in certain
premises as more particularly described therein.



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          (k) The term “Consolidated Debt” shall mean, collectively, the whole of
the principal sum of this Note, together with all interest accrued and unpaid
thereon and all other sums due under the Consolidated Loan Documents.



          (1) The term “Consolidated Loan” shall mean that certain loan in the
principal amount of this Note made by Payee to Maker contemporaneously
herewith.



          (m) The term “Consolidated Loan Documents” shall mean collectively this
Note, the Consolidated Deed of Trust, the Wedgewood Deed of Trust and any and
all other documents securing, evidencing, or guaranteeing all or any portion
of the Consolidated Loan or otherwise executed and/or delivered in connection
with this Note and the Consolidated Loan.



          (n) The term “Consolidated Trust Property” shall mean the property
covered by the Consolidated Deed of Trust.



          (o) The term “Debt” shall mean, collectively, the Consolidated Debt
and the Wedgewood Debt.



          (p) The term “Deeds of Trust” shall mean, collectively, the Consolidated
Deed of Trust and the Wedgewood Deed of Trust.



          (q) The term “Default Rate” shall mean, a rate per annum which equal to
the lesser of (a) the maximum rate permitted by applicable law, or (b) five
percent (5%) above the Applicable Interest Rate.



          (r) The term “Defeasance Option” shall mean the right and option of Maker
to release the Trust Property (as defined in each Deed of Trust) from the lien
of such Deed of Trust in accordance with the provisions set forth in Section
4.37 of each Deed of Trust.



          (s) The term “Extended Term Rate” shall mean a rate per annum
equal to
(i) a rate per annum equal to the greater of (A) the Initial Term Interest
Rate plus five (5) percentage points or (B) the Treasury Rate plus five (5)
percentage points, or (ii) for so long as this Note is an asset of the trust,
partnership, corporation or other entity formed in connection with a
Securitization (as defined in the Consolidated Deed of Trust) pursuant to
which securities rated by any Rating Agency (as defined in the Consolidated
Deed of Trust) have been issued, a rate per annum equal to the Initial Term
Interest Rate plus two (2) percentage points.



          (t) The term “Excess Cash Flow” shall mean, for any period, the sum
(determined in accordance with generally accepted accounting principles,
consistently applied) of (i) net operating income (calculated as all income
derived from the operation of the Trust Property after payment of taxes and
expenses), plus (ii) depreciation and amortization (to the extent deducted in
determining net operating income) for such period, plus (iii) disbursements
from the Tax and Insurance Impound Fund, the Replacement Escrow Fund, the
Leasing



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Escrow Fund or any other escrows or reserves approved by Payee or provided for
under the Loan Documents, but only to the extent disbursed by Maker and not
applied to the payment of, or reimbursement for, taxes, insurance and other
amounts for which such reserves were set aside, minus (iv) actual payments of
the regularly scheduled principal and interest payments (calculated at the
Applicable Interest Rate, or at the Default Rate, if applicable) due and
payable in accordance with this Note and the Wedgewood Note during an
applicable period, minus (v) actual Capital Expenditures in excess of payments
from the Replacement Escrow Fund, the Leasing Escrow Fund and funding of
reserves for working capital and Extraordinary Expenses as approved by Lender
in its sole discretion, and minus (vi) payments into the Replacement Escrow
Fund, the Tax and Insurance Impound Fund, the Leasing Escrow Fund and other
reserves required under the Loan Documents.




          (u) The term “Extraordinary Expense” shall mean an extraordinary
operating expense or capital expense not set forth in the Approved Annual
Budget or allotted for in the Replacement Escrow Fund.



          (v) The term “Initial Term Interest Rate” shall mean a rate of Six
and 71/100 percent (6.71 %) per annum.



          (w) The term “Loan Documents” means, collectively, the Consolidated Loan
Documents and the Wedgewood Loan Documents.



          (x) The term “Mezzanine Borrowers” shall mean Butera Equity, LLC and
Kimmel Equity, LLC.



          (y) The term “Mezzanine Cash Collateral Account” shall mean the account
described in Section 3(b)(vi) of the Cash Management Agreement.



          (z) The term “Mezzanine Loan” shall mean the loan in the principal amount
of $8,798,160 from the Payee to the Mezzanine Borrowers, and evidenced by the
Mezzanine
Note.



          (aa) The term “Mezzanine Monthly Principal Payments” shall mean all
monthly principal payments required to be made under the Mezzanine Note.



          (bb) The term “Net Capital Expenditures” shall mean for any period the
amount by which Capital Expenditures during such period exceeds
reimbursements for such items during such period from any fund established
pursuant to the Loan Documents.



          (cc) The term “Sale” shall have the meaning given such term in the Deeds
of Trust.



          (dd) The terms “Tax and Insurance Impound Fund”, “Leasing Escrow Fund”
and “Replacement Escrow Fund” shall have the meanings given such terms in the
Consolidated Deed of Trust and the Wedgewood Deed of Trust, respectively.



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          (ee) The term “Treasury Rate” shall mean, as of the Anticipated Repayment
Date, the yield, calculated by linear interpolation (rounded to the nearest
one-thousandth of one percent (i.e., 0.001%)) of the yields of noncallable
United States Treasury obligations with terms (one longer and one shorter) most
nearly approximating the period from the Anticipated Repayment Date to the
Maturity Date, as determined by Payee on the basis of Federal Reserve
Statistical Release H.15-Selected Interest Rates under the heading U.S.
Governmental Security/Treasury Constant Maturities, or other recognized source
of financial market information selected by Payee.



          (ff) The term “Trust Property” shall mean, collectively, the Consolidated
Trust Property and the Wedgewood Trust Property.



          (gg) The term “Wedgewood Cash Expenses” shall mean for any period, the
operating expenses for the Wedgewood Trust Property as set forth in an
Approved Annual Budget to the extent that such expenses are actually incurred
by the Wedgewood Owner minus payments into the Tax and Insurance Impound,
Leasing Escrow Fund and the Replacement Escrow Fund.



          (hh) The term “Wedgewood Debt” shall mean, collectively, the whole of the
principal sum of the Wedgewood Note, together with all interest accrued and
unpaid thereon and all other sums due under the Wedgwood Loan Documents.



          (ii) The term “Wedgewood Deed of Trust” shall mean that certain Amended
and Restated Deed of Trust and Security Agreement of even date herewith in the
amount of this Note and the Wedgewood Note given by the Wedgewood Owner for
the use and benefit of Payee covering the fee estate of the Wedgewood Owner
in certain premises as more particularly described therein.



          (jj) The term “Wedgewood Loan” shall mean that certain loan in the
principal amount of the Wedgewood Note made by Payee to Maker
contemporaneously herewith.



          (kk) The term “Wedgewood Loan Documents” shall mean collectively the
Wedgewood Note, the Consolidated Deed of Trust, the Wedgewood Deed of Trust
and any and all other documents securing, evidencing, or guaranteeing all or
any portion of the Wedgewood Loan or otherwise executed and/or delivered in
connection with the Wedgewood Note and the Wedgewood Loan.



          (11) The term “Wedgewood Monthly Payment Amount” shall mean the Monthly
Payment Amount specified under the Wedgewood Note.



          (mm) The term “Wedgewood Note” shall mean the Promissory Note Secured by
Deed of Trust of even date herewith from the Wedgewood Owner to the Payee in
the principal amount of $7,597,441.



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          (nn) The term “Wedgewood Trust Property” shall mean the property covered
by the Wedgewood Deed of Trust.



          Notwithstanding the foregoing provisions of this paragraph 1, in the
event that there is a Sale of the Wedgewood Property pursuant to Section 4.41
of the Deeds of Trust (resulting from a Securitization (as defined in the
Deeds of Trust) of this Note that does not simultaneously include a
Securitization of the Wedgewood Note), then (i) all references in this Note to
the Wedgewood Note, the Wedgewood Loan, the Wedgewood Debt, the Wedgewood Cash
Expenses, the Wedgewood Deed of Trust, the Wedgewood Loan Documents, the
Wedgewood Monthly Payment Amount, the Wedgewood Note and the Wedgewood Trust
Property shall be of no further force and effect.



          2. This Note is evidence of the Consolidated Loan and of the obligation of
the Maker to repay the Consolidated Loan in accordance with the terms
hereof. The proceeds
hereof are being used by the Maker (i) to refinance certain outstanding
notes made by one or
more Maker entities and held by Payee (the “Original Notes”), and (ii) to
provide purchase
money financing for the acquisition of certain real estate by one or more
Maker entities. This
Note is being executed and delivered (A) to amend and restate certain of
the Original Notes,
(B) to provide for an increase in the total outstanding indebtedness of
Maker, and (C) to
consolidate all of the Original Notes and such additional indebtedness.
This Note is secured
inter alia by (a) the Consolidated Deed of Trust, (b) the Wedgewood Deed
of Trust (but only
until the earlier to occur of repayment in full of this Note or any Sale
of the Wedgewood Trust
Property pursuant to Section 4.41(d) of the Deeds of Trust), and (c) the
other Consolidated
Loan Documents.



          3. If any sum payable under this Note is not paid on or before the date on
which it is due, Maker shall pay to Payee upon demand an amount equal to
the lesser of three
percent (3%) of such unpaid sum or the maximum amount permitted by
applicable law in
order to defray a portion of the expenses incurred by Payee in handling
and processing such
delinquent payment and to compensate Payee for the loss of the use of such
delinquent
payment. If the day when any payment required under this Note is due is
not a Business Day,
then payment shall be due on the first Business Day thereafter.



          4. The Consolidated Debt, or any portion thereof, shall without notice
become immediately due and payable at the option of Payee upon the
happening of any Event
of Default (as defined in the Deeds of Trust). In the event that it
should become necessary to
employ counsel to collect or enforce the Consolidated Debt or to protect
or foreclose the
security therefor, Maker also shall pay on demand all costs of collection
incurred by Payee,
including attorneys’ fees and costs reasonably incurred for the services of
counsel whether or
not suit be brought.



          5. Maker does hereby agree that upon the occurrence of an Event of
Default (including upon the failure of Maker to pay the Consolidated Debt
in full on the
Maturity Date), Payee shall be entitled to receive and Maker shall pay
interest on the entire
unpaid principal sum and any other amounts due at the Default Rate.



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          6. Maker hereby agrees that upon the occurrence of an Event of Default
Maker shall pay to Payee on the eleventh day of each month while such
Event of Default
continues, an aggregate amount equal to the Excess Cash Flow for the prior
month, such
Excess Cash Flow to be applied by Payee to the payment of the Debt in such
order as Payee
shall determine in its sole discretion, including, without limitation,
alternating applications
thereof between interest and principal and between this Note and the
Wedgewood Note.
Interest at the Default Rate and Excess Cash Flow shall both be computed
from the occurrence
of the Event of Default until the actual receipt and collection of the
Debt. Interest at the
Default Rate shall be added to the Debt and shall be secured by the Deeds
of Trust. This
paragraph, however, shall not be construed as an agreement or privilege to
extend the date of
the payment of the Debt, nor as a waiver of any other right or remedy
accruing to Payee by
reason of the occurrence of any Event of Default; the acceptance of any
payment of Excess
Cash Flow shall not be deemed to cure or constitute a waiver of any Event
of Default; and
Payee retains its rights under this Note to accelerate and to continue to
demand payment of the
Consolidated Debt upon the happening of any Event of Default despite any
payment of Excess
Cash Flow.



          7. This Note may not be prepaid prior to the Anticipated Repayment Date;
provided, however, Maker shall have the right and option to release the
Trust Property from
the lien of the Deeds of Trust in accordance with the terms and provisions
of the Defeasance
Option. Notwithstanding the foregoing sentence, Maker shall have the
privilege to prepay the
entire principal balance of this Note and any other amounts outstanding on
any Payment Date
during the sixty (60) days preceding the Anticipated Repayment Date
without payment of the
Yield Maintenance Premium (as defined in the Deeds of Trust) or any other
premium or
penalty. Any prepayment prior to the Anticipated Repayment Date on a
date other than a
Payment Date shall, in any event, include interest through the following
Payment Date. In
addition, on the Anticipated Repayment Date or on any Payment Date
thereafter, the Maker
may, at its option and upon thirty (30) days prior written notice from
Maker to Payee, prepay
in whole or in part, in $100,000 increments only, the outstanding
principal balance of this
Note and any other amounts outstanding without payment of the Yield
Maintenance Premium
or any other premium or penalty. If prior to the Anticipated Repayment
Date and following
the occurrence of any Event of Default, Maker shall tender payment of an
amount sufficient to
satisfy the Consolidated Debt at any time prior to a sale of the Trust
Property, either through
foreclosure or the exercise of the other remedies available to Payee under
the Deeds of Trust,
such tender by Maker shall be deemed to be voluntary and Maker shall pay,
in addition to the
Consolidated Debt, the Yield Maintenance Premium, if any, that would be
required under the
Defeasance Option. Notwithstanding the foregoing provisions, in the event
of any Sale of the
Wedgewood Property pursuant to the provisions of Section 4.41(d) of the
Deeds of Trust, the
Wedgewood Deed of Trust shall no longer secure this Note and no fee or
penalty shall be
payable upon such Sale.



          8. During any Sweep Period (as defined in the Cash Management
Agreement), Maker shall cause all Rents (as defined in the Deeds of Trust)
to be deposited in
the Clearing Account (as defined in the Cash Management Agreement).



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          (a) On each Business Day of each Collection Period (as defined in the Cash
Management Agreement), all Rents deposited in the Cash Collateral Account (as
defined in the Cash Management Agreement) shall be allocated in the following
order of priority:




	(i)	 	First, to fund the Tax and Insurance Impound
Fund Account (as established pursuant to the Cash Management
Agreement) until the amount on deposit therein is equal to
the amount required to be deposited in the Tax and Insurance
Impound Fund on the related Payment Date in accordance with
the terms and conditions of the Deeds of Trust;
	 
	(ii)	 	Second, to fund the Monthly Debt Service
Subaccount (as established pursuant to the Cash Management
Agreement) until the amount on deposit therein is equal to
the Consolidated Monthly Payment Amount and the Wedgewood
Monthly Payment Amount;
	 
	(iii)	 	Third, to fund the Monthly Debt Service Subaccount with any
other amounts due to the Payee under the Loan Documents not
otherwise addressed by this paragraph;
	 
	(iv)	 	Fourth, to fund the Replacement Reserve Escrow Fund Subaccount (as
established pursuant to the Cash Management Agreement) until the
amount on deposit therein is equal to the amount required to be
deposited in the Replacement Reserve (as defined in each Deed of Trust)
on the related Payment Date in accordance with the terms and conditions
of the Deeds of Trust;
	 
	(v)	 	Fifth, to fund the Leasing Escrow Fund Subaccount
(as established pursuant to the Cash Management Agreement)
until the amount on deposit therein is equal to the amount
required to be deposited in the Leasing Escrow Fund (as
defined in each Deed of Trust) on the related Payment Date in
accordance with the terms and conditions of the Deeds of
Trust; and
	 
	(vi)	 	Sixth, to fund the Operating Expense Subaccount
(as established pursuant to the Cash Management Agreement)
until the amount on deposit therein is equal to the Cash
Expenses, other than management fees payable to affiliates of
Maker or the Wedgewood Owner (with the exception of management
fees payable to Ross Management Co., manager of the individual
Consolidated Trust Property known as Patrick Center, pursuant
to a management agreement approved by Payee), for the month in
which such Collection Period ends pursuant to the terms and
conditions of the related Approved Annual Budget;
	 
	(vii)	 	Seventh, to fund the Operating Expense
Subaccount with any Net Capital Expenditures for the month in
which such Collection Period ends




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	 	 	pursuant to the terms and conditions of the related Approved
Annual Budget;
	 
	(viii)	 	Eighth, to fund the Operating Expense Subaccount with any
Extraordinary Expenses approved by Payee for the for the
month in which such Collection Period ends, if any; and
	 
	(ix)	 	Lastly, to fund the Mezzanine Cash Collateral Account.





          Nothing
in this paragraph 8(a) shall limit, reduce or otherwise affect
Maker’s obligations to pay the Consolidated Monthly Payment Amount, make
payments to the Tax and Insurance Impound Fund, Leasing Escrow Fund,
Replacement Escrow Fund due hereunder and pay other amounts due under the
other Consolidated Loan Documents, whether or not Rents are available to make
such payments.



          (b) For each fiscal year the Maker shall submit to the Payee for the
Payee’s written approval an Annual Budget not later than sixty (60) days prior
to the commencement of such fiscal year, in form satisfactory to Payee setting
forth in reasonable detail budgeted monthly operating income and monthly
operating capital and other expenses for the Trust Property. Each Annual
Budget shall contain, among other things, limitations on management fees,
third party service fees, and other expenses as the Maker may reasonably
determine. Payee shall have the right to approve such Annual Budget which
approval shall not be unreasonably withheld, and in the event that Payee
objects to the proposed Annual Budget submitted by Maker, Payee shall advise
Maker of such objections within fifteen (15) days after receipt thereof (and
deliver to Maker a reasonably detailed description of such objections) and
Maker shall within three (3) days after receipt of notice of any such
objections revise such Annual Budget and resubmit the same to Payee. Payee
shall advise Maker of any objections to such revised Annual Budget within ten
(10) days after receipt thereof (and deliver to Maker a reasonably detailed
description of such objections) and Maker shall revise the same in accordance
with the process described in this subparagraph until the Payee approves an
Annual Budget, provided, however, that if Payee shall not advise Maker of its
objections to any proposed Annual Budget within the applicable time period set
forth in this paragraph, then such proposed Annual Budget shall be deemed
approved by Payee. Until such time that Payee approves a proposed Annual
Budget, the most recently Approved Annual Budget shall apply; provided that,
such Approved Annual Budget shall be adjusted to reflect actual increases in
real estate taxes, insurance premiums and utilities expenses.



          9. In the event that the Maker does not pay the Debt in full prior to the
Anticipated Repayment Date, the provisions of paragraph 8 as set forth above
shall remain in full force and effect, and the following subparagraphs also
shall apply:



          (a) From and after the Anticipated Repayment Date, interest shall accrue
on the unpaid principal balance from time to time outstanding on this Note at
the Extended Term Rate. Interest accrued at the Extended Term Rate and not
paid pursuant to this paragraph 9 shall be deferred and added to the
Consolidated Debt and shall earn interest at the Extended Term Rate to the
extent permitted by applicable law (such accrued interest is hereinafter



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defined as “Accrued Interest”). All of the Consolidated Debt, including any
Accrued Interest, shall be due and payable on the Maturity Date.




          (b) All Rents deposited in the Cash Collateral Account during each
Collection Period shall be allocated to in the following order of priority, in
each case to the extent sufficient funds remain therefor:




	(i)	 	First, to fund the Tax and Insurance Impound
Fund Subaccount until the amount on deposit therein is equal
to the amount required to be deposited in the Tax and
Insurance Impound Fund on the related Payment Date in
accordance with the terms and conditions of the Deeds of
Trust;
	 
	(ii)	 	Second, to fund the Monthly Debt Service Subaccount until the amount
on deposit therein is equal to the Consolidated Monthly Payment Amount and the
Wedgewood Monthly Payment Amount (to be applied first to the payment of
interest computed at the Initial Term Interest Rate
with the remainder applied to the reduction of the
outstanding principal balance of this Note and the Wedgewood
Note, in such manner as the Lender in its sole discretion
may determine);
	 
	(iii)	 	Third, to fund the Monthly Debt Service
Subaccount with any other amounts due to the Payee under the
Loan Documents not otherwise addressed by this paragraph;
	 
	(iv)	 	Fourth, to fund the Replacement Escrow Fund
Subaccount until the amount on deposit therein is equal to
the amount required to be deposited in the Replacement Escrow
Fund on the related Payment Date in accordance with the terms
and conditions of the Deeds of Trust;
	 
	(v)	 	Fifth, to fund the Leasing Escrow Fund
Subaccount until the amount on deposit therein is equal to
the amount required to be deposited in the Leasing Escrow
Fund on the related Payment Date in accordance with the terms
and conditions of the Deeds of Trust; and
	 
	(vi)	 	Sixth, to fund the Operating Expense Subaccount
(as established pursuant to the Cash Management Agreement)
until the amount on deposit therein is equal to the Cash
Expenses, other than management fees payable to affiliates of
Maker or the Wedgewood Owner, for the month in which such
Collection Period ends pursuant to the terms and conditions of
the related Approved Annual Budget;
	 
	(vii)	 	Seventh, to fund the Operating Expense
Subaccount with any Net Capital Expenditures for the month in
which such Collection Period ends pursuant to the terms and
conditions of the related Approved Annual Budget;




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	(viii)	 	Eighth, to fund the Operating Expense Subaccount with any
Extraordinary Expenses approved by Payee for the for the
month in which such Collection Period ends, if any;
	 
	(ix)	 	Ninth, to fund the Monthly Debt Service
Subaccount with any amount equal to the remaining principal
balance of this Note and the Wedgewood Note, to be applied
against the outstanding principal due under this Note and the
Wedgewood Note until such principal amounts are paid in full;
	 
	(x)	 	Tenth, to fund the Monthly Debt Service
Subaccount with any amount equal to any Accrued Interest
hereunder and accrued interest under Paragraph 9 of the
Wedgewood Note (the “Wedgewood Accrued Interest”), to be
applied against the outstanding amount thereof until all such
Accrued Interest and Wedgewood Accrued Interest has been
repaid;
	 
	(xi)	 	Lastly, to pay to the Maker any excess amounts.





          (c) In the event that the Maker must incur an Extraordinary Expense, then
the Maker shall promptly deliver to Payee a reasonably detailed
explanation of such proposed
Extraordinary Expense for the Payee’s approval, which approval may be
granted or denied in
the Payee’s sole discretion.



          (d) Nothing in this paragraph 9 shall limit, reduce or otherwise affect
Maker’s obligations to make payments of the Consolidated Monthly Payment
Amount,
payments to the Tax and Insurance Impound Fund, the Replacement Escrow
Fund, and
Leasing Escrow Fund due hereunder and under the other Consolidated Loan
Documents,
whether or not Rents are available to make such payments.



          10. It is expressly stipulated and agreed to be the intent of Maker and
Payee at all times to comply with applicable state law or applicable United
States federal law (to the extent that it permits Payee to contract for,
charge, take, reserve, or receive a greater amount of interest than under
state law) and that this paragraph (and the similar paragraph contained in the
Deeds of Trust) shall control every other covenant and agreement in this Note
and the other Loan Documents. If the applicable law (state or federal) is ever
judicially interpreted so as to render usurious any amount called for under
this Note or under any of the other Consolidated Loan Documents, or contracted
for, charged, taken, reserved, or received with respect to the Debt, or if
Payee’s exercise of the option to accelerate the Maturity Date, or if any
prepayment or the exercise of any Defeasance Option by Maker results in Maker
having paid any interest in excess of that permitted by applicable law, then
it is Payee’s express intent that all excess amounts theretofore collected by
Payee shall be credited on the principal balance of this Note and all other
Debt and the provisions of this Note and the other Consolidated Loan Documents
immediately be deemed reformed and the amounts thereafter collectible
hereunder and thereunder reduced, without the necessity of the execution of
any new documents, so as to comply with the applicable law, but so as to
permit the recovery of the fullest amount otherwise called for hereunder or
thereunder. All sums paid or agreed to



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be paid to Payee for the use, forbearance, or detention of the Consolidated
Debt shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term of the Consolidated Debt
until payment in full so that the rate or amount of interest on account of the
Consolidated Debt does not exceed the maximum lawful rate from time to time in
effect and applicable to the Consolidated Debt for so long as the Consolidated
Debt is outstanding. Notwithstanding anything to the contrary contained herein
or in any of the other Consolidated Loan Documents, it is not the intention of
Payee to accelerate the maturity of any interest that has not accrued at the
time of such acceleration or to collect unearned interest at the time of such
acceleration.




          11. This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the
part of Maker or Payee,
but only by an agreement in writing signed by the party against whom
enforcement of any
modification, amendment, waiver, extension, change, discharge or
termination is sought.
Whenever used, the singular number shall include the plural, the plural
the singular, and the
words “Payee” and “Maker” shall include their respective successors,
assigns, heirs,
executors and administrators. If Maker consists of more than one person
or party, the
obligations and liabilities of each such person or party shall be joint
and several.



          12. Maker and all others who may become liable for the payment of all or
any part of the Consolidated Debt do hereby severally waive presentment
and demand for
payment, notice of dishonor, protest, notice of protest, notice of
nonpayment, notice of intent
to accelerate the maturity hereof and of acceleration. No release of any
security for the
Consolidated Debt or any person liable for payment of the Consolidated
Debt, no extension of
time for payment of this Note or any installment hereof, and no
alteration, amendment or
waiver of any provision of the Consolidated Loan Documents made by
agreement between
Payee and any other person or party shall release, modify, amend, waive,
extend, change,
discharge, terminate or affect the liability of Maker, and any other
person or party who may
become liable under the Consolidated Loan Documents for the payment of all
or any part of
the Consolidated Debt.



          13. Subject to the qualifications below, Payee shall not enforce the
liability
and obligation of Maker or its constituent members, partners,
shareholders, directors,
employees or agents to perform and observe the obligations contained in
this Note, the Deeds
of Trust or the other Loan Documents by any legal, equitable or other
action or proceeding
wherein a judgment shall be sought against Maker or its constituent
members, partners,
shareholders, directors, employees or agents, except that Payee may bring
a foreclosure
action, an action for specific performance or any other appropriate action
or proceeding to
enable Payee to enforce and realize upon its interest under this Note, the
Deeds of Trust and
the other Consolidated Loan Documents, or in the Trust Property, the
Rents, or any other
collateral given to Payee pursuant to the Consolidated Loan Documents;
provided, however,
that, except as specifically provided herein, any judgment in any such
action or proceeding
shall be enforceable against Maker only to the extent of Maker’s interest
in the Trust Property,
in the Rents and in any other collateral given to Payee, and Payee, by
accepting this Note, the
Deeds of Trust and the other Consolidated Loan Documents, agrees that it
shall not sue for,
seek or demand any deficiency judgment against Maker in any such action or
proceeding



-12-









 




under or by reason of or under or in connection with this Note, the Deeds of
Trust or the other Consolidated Loan Documents. The provisions of this
paragraph shall not, however, (a) constitute a waiver, release or impairment of
any obligation evidenced or secured by any of the Consolidated Loan Documents;
(b) impair the right of Payee to name Maker as a party defendant in any action
or suit for foreclosure and sale under the Deeds of Trust or the Wedgewood
Owner as a party defendant in any action or suit for foreclosure and sale under
the Wedgewood Deed of Trust; (c) affect the validity or enforceability of or
any guaranty made in connection with the Consolidated Loan or any of the rights
and remedies of the Payee thereunder; (d) impair the right of Payee to obtain
the appointment of a receiver; (e) constitute a waiver of the right of Payee to
enforce the liability and obligation of Maker, by money judgment or otherwise,
to the extent of any loss, damage, cost, expense, liability, claim or other
obligation incurred by Payee (including attorneys’ fees and costs reasonably
incurred) arising out of or in connection with the following:





	(i)	 	fraud or intentional misrepresentation by
Maker or any guarantor in connection with the Consolidated
Loan;
	 
	(ii)	 	the gross negligence or willful misconduct
of Maker;
	 
	(iii)	 	physical waste of the Trust
Property;
	 
	(iv)	 	the breach of any representation, warranty, covenant or
indemnification
provision in those certain Environmental and Hazardous Substance
Indemnification Agreements of even date herewith given by Maker and
the Wedgewood Owner to Payee or in the Deeds of Trust concerning
environmental laws, hazardous substances or asbestos
(provided, however, that only the Maker and the Wedgewood
Owner, and not any of their constituent members, partners,
shareholders, directors, employees or agents, shall have any
liability for environmental matters)
	 
	(v)	 	the removal or disposal of any portion of
the Trust Property after an Event of Default;
	 
	(vi)	 	the misapplication or conversion by Maker of (A)
any insurance proceeds paid by reason of any loss, damage or
destruction to the Trust Property, (B) any awards or other
amounts received in connection with the condemnation of all
or a portion of the Trust Property, (C) any Rents following
an Event of Default, or (D) any Rents paid more than one
month in advance;
	 
	(vii)	 	failure to pay charges for labor or materials or
taxes or other charges that can create liens on any portion of
the Trust Property; and
	 
	(viii)	 	any security deposits collected with respect to the Trust
Property which are not delivered to Payee upon a foreclosure
of the Trust Property or other action in lieu thereof, except
to the extent any such security




-13-









 






	 	 	deposits were applied in accordance with the terms and
conditions of any of the Leases (as defined in the Deeds of
Trust) prior to the occurrence of the Event of Default that
gave rise to such sale or foreclosure or action in lieu
thereof.




Notwithstanding anything to the contrary in this Note or any of the Loan
Documents, (A) Payee shall not be deemed to have waived any right which Payee
may have under Section 506(a), 506(b), 1lll(b) or any other provisions of the
U.S. Bankruptcy Code to file a claim for the full amount of the Consolidated
Debt secured by the Deeds of Trust or to require that all collateral shall
continue to secure all of the Consolidated Debt owing to Payee in accordance
with the Consolidated Loan Documents, and (B) the Consolidated Debt shall be
fully recourse to Maker in the event that: (i) the first full monthly payment
of principal and interest under this Note is not paid when due; (ii) Maker
fails to maintain its status as a single purpose entity, as required by, and
in accordance with the terms and provisions of, the Deeds of Trust; (iii)
Maker fails to obtain Payee’s prior written consent to any subordinate
financing or other voluntary lien encumbering the Trust Property; (iv) Maker
fails to obtain Payee’s prior written consent to any assignment, transfer, or
conveyance of the Trust Property or any interest therein as required by the
Deeds of Trust, or (v) a receiver, liquidator or trustee of Maker or of any
guarantor shall be appointed or if Maker or any guarantor shall be adjudicated
a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or
arrangement pursuant to federal bankruptcy law, or any similar federal or
state law, shall be filed by, consented to, or acquiesced in by, Maker or any
guarantor or if any proceeding for the dissolution or liquidation of Maker or
of any guarantor shall be instituted by Maker or any guarantor. In no event
shall Sidney Kimmel be liable for the above recourse exceptions.





          14. Maker (and the undersigned representative of Maker, if any) represents
that Maker has full power, authority and legal right to execute, deliver
and perform its
obligations pursuant to this Note, the Deeds of Trust and the other
Consolidated Loan
Documents and that this Note, the Deeds of Trust and the other
Consolidated Loan Documents
constitute valid and binding obligations of Maker.



          15. All notices or other communications required or permitted to be given
pursuant hereto shall be given in the manner specified in the Deeds of
Trust directed to the
parties at their respective addresses as provided therein.



          16. MAKER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY
OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW
OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY MAKER, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH
THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. PAYEE IS
HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAKER.



-14-









 





          17. This Note shall be governed by and construed in accordance with
the laws of the State of Maryland and the applicable laws of the United States
of America.



-15-









 







	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	Maker has duly executed this Note the day and year first above written.
	 
	 	 	 	 	MAKER:	 	 	 	 	 	 
	 	 	 	 	BUTERA PROPERTIES, LLC,	 	 
	 	 	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Butera Equity LLC,	 	 
	 	 	 	 	 	 	a Delaware Limited liability company,	 	 
	 	 	 	 	 	 	Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	 
	 	 	 	 	 	 
	

	 	 	 	 	 	 	 	By:	 	/s/ T. Richard Butera	 	 
	

	 	 	 	 	 	 	 	 	 	
	 	 
	

	 	 	 	 	 	 	 	 	 	T. Richard Butera,	 	 
	

	 	 	 	 	 	 	 	 	 	Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	BUTERA PROPERTIES II, LLC,	 	 	 	 
	 	 	 	 	a Maryland limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Butera Equity, LLC,	 	 
	 	 	 	 	 	 	a Delaware limited liability company,	 	 
	 	 	 	 	 	 	Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	Butera Equity, Inc,.
	 	 	 	 	 	 	 	 	a Delware corporation,
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	 
	 	 	 	 	 	 
	

	 	 	 	 	 	 	 	By:	 	/s/ T. Richard Butera	 	 
	

	 	 	 	 	 	 	 	 	 	
	 	 
	

	 	 	 	 	 	 	 	 	 	T. Richard Butera,	 	 
	

	 	 	 	 	 	 	 	 	 	Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	TRB, INC,	 	 	 	 
	 	 	 	 	a Colorado corporation	 	 	 	 
	

	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ T. Richard Butera	 	 
	 	 	 	 	 	 	
	 	 
	 	 	 	 	 	 	T. Richard Butera,	 	 
	 	 	 	 	 	 	President	 	 







-16-









 






	 	 	 	 	 	 	 	 	 
	 	 	WOODSTONE ASSOC.,
	 	 	a Colorado general partnership
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Butera Equity, LLC,
	 	 	 	 	a Delaware limited liability company,
	 	 	 	 	Manager
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 
	 	 	 	 
	

	 	 	 	 	 	By:	 	/s/ T. Richard Butera
	

	 	 	 	 	 	 	 	

	

	 	 	 	 	 	 	 	T. Richard Butera,
	

	 	 	 	 	 	 	 	Manager
	 
	 	 	 	 	 	 	 	 
	 	 	THIRTY WEST LLLP,	 
	 	 	a Maryland limited liability limited
	 	 	partnership	 	 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ G. Stephen Ross
	 	 	 	 	

	 	 	 	 	G. Stephen Ross,
	 	 	 	 	General Partner
	 
	 	 	 	 	 	 	 	 
	 	 	BUTERA GATEWAY CENTER, LLC,
	 	 	a Maryland limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Butera Equity, LLC,
	 	 	 	 	a Delaware limited liability company,
	 	 	 	 	Manager
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 
	 	 	 	 
	

	 	 	 	 	 	By:	 	/s/ T. Richard Butera
	

	 	 	 	 	 	 	 	

	

	 	 	 	 	 	 	 	T. Richard Butera,
	

	 	 	 	 	 	 	 	Manager
	 
	 	 	 	 	 	 	 	 
	 	 	BUTERA GIRARD PLACE, LLC,
	 	 	a Maryland limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Butera Equity, LLC,
	 	 	 	 	a Delaware limited liability company,
	 	 	 	 	Manager
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 
	 	 	 	 
	

	 	 	 	 	 	By:	 	/s/ T. Richard Butera
	

	 	 	 	 	 	 	 	

	

	 	 	 	 	 	 	 	T. Richard Butera,
	

	 	 	 	 	 	 	 	Manager







-17-









 






	 	 	 	 	 	 	 	 	 
	 	 	BUTERA GIRARD BUSINESS CENTER,
	 	 	LLC, a Maryland limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Butera Equity, LLC,
	 	 	 	 	a Delaware limited liability company,
	 	 	 	 	Manager
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 
	 	 	 	 
	

	 	 	 	 	 	By:	 	/s/ T. Richard Butera
	

	 	 	 	 	 	 	 	

	

	 	 	 	 	 	 	 	T. Richard Butera,
	

	 	 	 	 	 	 	 	Manager
	 
	 	 	 	 	 	 	 	 
	 	 	BUTERA GOLDENROD LANE, LLC,
	 	 	a Maryland limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Butera Equity, LLC,
	 	 	 	 	a Delaware limited liability company,
	 	 	 	 	Manager
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 
	 	 	 	 
	

	 	 	 	 	 	By:	 	/s/ T. Richard Butera
	

	 	 	 	 	 	 	 	

	

	 	 	 	 	 	 	 	T. Richard Butera,
	

	 	 	 	 	 	 	 	Manager







	 	 	 
	Pay to the order of
______________,
	without recourse.
	 
	 	 
	CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
	      a Delaware limited liability company
	 
	By:
	 	 
	

	 	

	

	 	Name:
	

	 	Title:







-18-