Amended and Restated Deed of Trust and Security Agreement

Amended and Restated Deed of Trust and Security Agreement

AMENDED AND RESTATED DEED OF TRUST AND SECURITY AGREEMENT (this "Deed of Trust") made as of , by , a , having an office at ("Trustor"), in favor of ("Trustee"), whose address is , Trustee for the benefit of , a , having an office at ("Beneficiary").

RECITALS

Trustor has executed and delivered to Beneficiary that certain Amended Promissory Note (the "Note") dated the date hereof made by Trustor and payable to Beneficiary in the original principal amount of , lawful money of the United States, the final payment of which, if not sooner paid, is due and payable not later than (the "Maturity Date").

NOW, THEREFORE, WITNESSETH, that in consideration of the sum of this day paid and other good and lawful consideration, the receipt and sufficiency of which is hereby acknowledged and in order to secure the Obligations, Trustor hereby grants, conveys and warrants unto Trustee, in trust, with power of sale (and grants to Beneficiary a security interest in), the property, both real and personal, hereinafter described:

GRANTING CLAUSES

GRANTING CLAUSE ONE

All that tract or parcel of land more particularly described in Exhibits attached hereto and made a part hereof (the "Land").

GRANTING CLAUSE TWO

TOGETHER WITH, any and all buildings and improvements now or hereafter located or erected on the Land, including all machinery, apparatus, equipment and fixtures used in connection with the operation and maintenance of any building, structure or other improvement.

GRANTING CLAUSE THREE

TOGETHER WITH, all easements, rights-of-way, strips and gores of land, streets, ways, alleys, passages, sewer rights, waters, water courses, water rights and powers, and all estates, rights, titles, interests, privileges, liberties, tenements, hereditaments, air rights, development rights and credits and appurtenances of any nature whatsoever, including the following:

(i)

(ii)

(iii)

(iv)

(v)

GRANTING CLAUSE FOUR

TOGETHER WITH, all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, opened or proposed, adjoining the Premises.

GRANTING CLAUSE FIVE

TOGETHER WITH, all right, title and interest of Trustor in and to all options to purchase or lease the Premises or any portion thereof or interest therein.

GRANTING CLAUSE SIX

TOGETHER WITH, all accounts receivable, insurance policies, licenses, franchises, permits, service contracts and contract rights, management agreements, trade names, trademarks, service marks, logos, general intangibles, interests, estates and other claims.

GRANTING CLAUSE SEVEN

TOGETHER WITH, all awards or payments made for the taking by eminent domain, or by any proceeding or purchase in lieu thereof, of the whole or any part of the Premises.

GRANTING CLAUSE EIGHT

TOGETHER WITH, all proceeds of and any unearned premiums on any insurance policies covering the Premises.

GRANTING CLAUSE NINE

TOGETHER WITH, all claims against anyone with respect to damage to all or any part of the Premises.

GRANTING CLAUSE TEN

TOGETHER WITH, all deposits or other security or advance payments made by or on behalf of Trustor to others in connection with the ownership or operation of all or any part of the Premises.

GRANTING CLAUSE ELEVEN

TOGETHER WITH, all wastewater, fresh water and other utilities capacity and facilities available or allocable to the Premises.

GRANTING CLAUSE TWELVE

TOGETHER WITH, all remainders, reversions, leasehold estate, other estate, right, title, interest and other claim or demand of Trustor in and to all leases or subleases covering the Premises or any portion thereof.

GRANTING CLAUSE THIRTEEN

TOGETHER WITH, all rents, issues, profits, cash proceeds, royalties, income and other benefits derived from the Premises, subject to the right given to Trustor to collect and apply such Rents prior to default.

This Deed of Trust is made and intended to secure the payment of the Obligations, including the obligations evidenced by the Note, advances made by Beneficiary, and all renewals, substitutions, modifications and extensions of the Note or any other Obligations secured hereby.

DEFINITIONS

As used in this Deed of Trust, the following terms shall have the meanings specified below.

"Assignment" shall mean the Assignment of Leases, Rents, Income and Cash Collateral dated the date hereof from Trustor to Beneficiary.

"Code" shall have the meaning set forth in Granting Clause Thirteen hereof.

"Obligations" shall mean the principal of, interest on, and all other amounts due under the Note and Loan Documents.

ARTICLE I - COVENANTS AND AGREEMENTS

1.1 Payment of Obligations. Trustor shall pay when due and shall perform the Obligations as provided herein.

1.2 Payment of Taxes, Assessments, Etc.

Impositions. Trustor shall pay when due and payable all taxes, assessments, water and sewer rents, rates and charges, and other governmental charges.

Installments. Trustor may exercise the option to pay such Impositions in installments where permitted by law.

1.3 Insurance.

Extended Coverage. Trustor, at its sole cost and expense, shall keep the Personal Property and the Improvements insured during the term of this Deed of Trust against loss or damage by fire and other risks.

Additional Coverage. Trustor shall at all times maintain liability insurance, rent or business interruption insurance, and such other insurance as may be required by Beneficiary.

1.4 Escrow Deposits. To further secure the payment of the Impositions and insurance premiums, Trustor will deposit monthly escrow amounts.

1.5 Care and Use of Premises.

Maintenance and Repairs. Trustor shall keep the Secured Property in good order and condition.

Standard of Repairs. Repairs shall be made with new first-class materials and in a good, substantial and workmanlike manner.

1.5F Hazardous Materials. Trustor indemnifies Beneficiary from losses arising from the presence or release of Hazardous Materials.

1.6 Financial Information.

Audit. Trustor will furnish an annual audit prepared and certified by an independent certified public accountant.

Right to Inspect Books and Records. Beneficiary shall have the right to examine and make copies of such books and records.

1.7 Condemnation. Beneficiary shall have the right to participate in condemnation proceedings and receive the award or payment.

1.8 Leases.

Performance of Lessor's Covenants. Trustor shall faithfully perform the lessor's covenants under any subsisting and future Leases.

Notice of Default. Trustor will give Beneficiary immediate notice of any notice of default, event of default, extension, renewal, expansion or cancellation given to or received from any Lessee.

Application of Rents. Trustor shall use and apply all rents, income and profits from the Secured Property first to the payment of the Obligations.

1.9 Assignment of Leases, Rents, Income, Profits and Cash Proceeds.

Trustor hereby absolutely and presently assigns to Beneficiary all Leases and all rents, issues, profits, cash proceeds, royalties and income from the Secured Property.

1.10 Further Assurances.

General; Appointment of Attorney-in-Fact. Trustor shall execute and deliver all instruments necessary to effectuate and preserve its obligations under the Note and Loan Documents.

Additional Security Instruments. Trustor shall execute additional security instruments and financing statements as requested by Beneficiary.

1.11 Further Sales or Encumbrances.

Trustor shall not transfer or encumber the Secured Property without prior written consent of Beneficiary.

1.12 Expenses. Trustor shall pay Trustee's costs and expenses and all reasonable attorneys' fees and expenses incurred by Beneficiary.

ARTICLE II - REPRESENTATIONS AND WARRANTIES

2.1 Warranty of Title. Trustor is lawfully seized and possessed of the Secured Property, in fee simple, subject to no mortgage, deed of trust, lien, charge or encumbrance except as set forth in title insurance.

2.2 Ownership of Improvements and Personal Property. All Improvements and Personal Property now or hereafter affixed, placed or used by Trustor are and will hereafter be owned by Trustor free from any prior security titles, security interests, liens or encumbrances.

2.3 No Pending Material Litigation or Proceeding; No Hazardous Materials. Trustor represents and warrants no material litigation and no hazardous materials violations.

2.4 Valid Organization, Good Standing and Qualification of Trustor. Trustor is duly and validly organized and existing under the laws of the State of .

2.5 Authorization; No Legal Restrictions on Performance. The execution and delivery of this Deed of Trust and Loan Documents have been duly authorized.

2.6 Compliance With Laws. Trustor has complied with applicable statutes, rules, regulations and orders.

2.7 Tax Status. Trustor has filed all required tax returns and paid all taxes due, except as contested in good faith.

2.8 Absence of Foreign or Enemy Status. Trustor is not a designated foreign national.

2.9 Federal Reserve Board Regulations. Trustor will not use loan proceeds in violation of Regulation G, T, U or X.

2.10 Investment Company Act and Public Utility Holding Company Act. Trustor is not an investment company or holding company.

2.11 Exempt Status of Transactions and Representations Relating Thereto. Trustor has not solicited the loan from any person other than Beneficiary.

2.12 Employee Benefit Plans. None of the Employee Benefit Plans has engaged in a prohibited transaction.

ARTICLE III - DEFAULTS

3.1 Events of Default. Any of the following events shall be deemed an Event of Default:

• Failure to pay principal, interest or other sums when due;
• Failure to perform any covenant or agreement not cured within thirty (30) days after notice;
• Materially false representations or warranties;
• Bankruptcy, insolvency, receivership or similar proceedings;
• Transfer not consented to by Beneficiary.

ARTICLE IV - REMEDIES

4.1 Acceleration, Foreclosure, Etc. Upon the happening of any Event of Default, the entire unpaid principal balance and all sums secured by this Deed of Trust shall become immediately due and payable at Beneficiary's option.

4.2 No Election of Remedies. Beneficiary may exercise all rights and remedies in any order and manner it elects.

4.3 Beneficiary's Right to Release, etc. Beneficiary may release any portion of the Secured Property without impairing the security title of this Deed of Trust.

4.4 Beneficiary's Right to Remedy Defaults, etc. Beneficiary may remedy any default or take action to protect its interest in the Secured Property.

4.5 Waivers. Trustor waives rights to notices, valuation, marshaling and redemption to the extent permitted by law.

4.6 Prepayment Charge. Trustor agrees to pay the charge provided in the Note for prepayment of the Obligations.

ARTICLE V - MISCELLANEOUS

5.1 Non-Waiver. The failure of Beneficiary to insist upon strict performance shall not be deemed a waiver.

5.2 Sole Discretion of Beneficiary. Any consent or approval required by this Deed of Trust shall be in Beneficiary's sole discretion.

5.3 Recovery of Sums Required To Be Paid. Beneficiary may recover any sums constituting Obligations at any time due.

5.4 Legal Tender. All payments shall be made in lawful money of the United States.

5.5 No Merger. The deed of trust lien shall not be destroyed by merger of interests.

5.6 Discontinuance of Actions. If enforcement proceedings are abandoned, the parties shall be restored to their former positions.

5.7 Headings. Headings are for convenience only and do not limit the terms hereof.

5.8 Notice to Parties. Notices shall be sent to the following addresses:

Trustor:

Attn:

Beneficiary:

Attn:

5.9 Non-Recourse. Beneficiary shall have full recourse to the Secured Property and other collateral, subject to stated exceptions.

5.10 Successors and Assigns Included In Parties. The parties' successors and assigns are included.

5.11 Number and Gender. Singular, plural, masculine, feminine and neuter terms are interchangeable as context requires.

5.12 Changes and Modifications. This Deed of Trust may be changed only by written agreement.

5.13 Applicable Law. This Deed of Trust shall be governed by the laws of the State of .

5.14 Invalid Provisions to Affect No Others. Invalid provisions shall not affect the remaining provisions.

5.15 Usury Savings Clause. Intent is to conform strictly to applicable usury laws.

5.16 No Statute of Limitations. Trustor waives the pleading of any statute of limitations defense.

5.17 Late Charges. Late charges shall become due if any installment is paid after the due date.

5.18 Time of Essence. Time is of the essence of this Deed of Trust and the Note.

5.19 Waiver of Jury Trial. Trustor waives trial by jury.

5.20 Continuing Effectiveness. This Deed of Trust shall secure all advances, renewals and extensions.

5.21 Amendment of Prior Deed of Trust. This Deed of Trust amends and restates the prior deed of trust described herein.

EXHIBITS

EXHIBIT A-1 A tract of land situated in

EXHIBIT A-2 A utility, landscaping and access easement containing

EXHIBIT A-3 A certain parcel of land lying and being situated in

EXHIBIT A-4 A tract of land situated in

EXHIBIT B

Access Easement AA@:

Access Easement AE@:

Parcel No. 1: