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200313229 <br />This Trust Deed constitutes a construction security interest and is a Construction Security <br />Agreement for the Construction Phase under the Nebraska Construction Lien Act. This Trust Deed <br />secures an obligation which the Trustor incurred for the purpose of making improvements on the <br />Trust Estate in which a security interest is given. This Trust Deed also constitutes a fixture filing <br />under Section 9 -401 of the Nebraska Uniform Commercial Code. <br />FOR THE PURPOSE OF SECURING: <br />a. The payment of the indebtedness evidenced by the Alpha Note and <br />the Beta Note of Trustor dated even date herewith collectively in the <br />Total Loan Amount, which mature on the earlier of the 15th anniver- <br />sary of the Conversion Date, as defined in the Notes, together with <br />Interest at the Alpha Rate and the Beta Rate provided for in the <br />Alpha Note and the Beta Note and pursuant to the terms and <br />conditions set forth therein, which by this reference are incorporated <br />herein, and any and all modifications, extensions, and renewals <br />thereof; <br />b. The performance of each agreement and covenant of Trustor herein <br />contained or contained in any other Loan Instrument, dated this even <br />date herewith by Trustor in favor of Lender; and <br />C. All other indebtedness and obligations of Trustor to Beneficiary, <br />whether direct, indirect, absolute or contingent, existing now or arising <br />in the future, by note, guarantee, or otherwise (items (a) through (c) <br />above hereinafter jointly referred to as the "Obligations "). <br />1. Definitions. Any capitalized term not otherwise defined herein shall have the <br />meaning, if any, ascribed to it in the Loan Agreement. The Loan Agreement, the Alpha Note, the <br />Beta Note, this Trust Deed, the Commitment Letter, the Hazardous Substances Indemnity <br />Agreement, and any promissory notes or other documents which may be entered into by Trustor <br />in connection with the Loan Agreement shall be referred to herein jointly as the "Loan Documents ". <br />2. Representations, Warranties, and Covenants of Trustor. To protect the security <br />of this Trust Deed, Trustor hereby makes the following representations and warranties to Beneficiary <br />and covenants and agrees as follows: <br />a. Payment or Performance of Obligations. Trustor shall timely pay all <br />Obligations and otherwise fully perform under and comply with the <br />terms and conditions of the Loan Documents. <br />b. Title. Trustor is lawfully seized and possessed of good and indefeasi- <br />ble, legal and equitable title and estate to the Trust Estate and has <br />the right and authority to grant and convey the Trust Estate to Trustee <br />as herein provided. The Trust Estate is and shall remain as long as <br />the notes are outstanding free and clear of all security interests, <br />pledges, mortgages, liens, and encumbrances except those for (i) <br />current and nondelinquent taxes or taxes being contested in good <br />faith and by appropriate legal proceedings in a manner which, in <br />Beneficiary's solejudgment, will not jeopardize Beneficiary's interest <br />in the Trust Estate; (ii) liens arising in the ordinary course of business <br />for sums not over due or sums being protested in good faith and by <br />appropriate legal proceedings in a manner which, in Beneficiary's sole <br />judgment, will not jeopardize Beneficiary's interest in the Trust Estate, <br />but not involving any deposits or advances or borrowed money or the <br />deferred purchase price of property or services; (iii) easements, <br />exceptions, reservations, covenants, and rights -of -way of record as <br />of the date hereof and otherwise acceptable to Beneficiary; (iv) all <br />commercial tenants' leases and those residential leases Borrower has <br />or will execute with the ultimate residential tenants who meet the <br />income and other qualifications required by the Loan Documents; and <br />(v) the interests of Beneficiary and Trustee created hereby (items (i) <br />through (v) hereof being referred to as the "Permitted Encumbranc- <br />es"). During the term of this Agreement, Trustor will warrant and <br />defend the title to and possession of the Trust Estate against all <br />claims and demands other than the Permitted Encumbrances. <br />L0553199.1 -3- <br />