ASSUMPTION AGREEMENT AND NOTE MODIFICATION
This ASSUMPTION AGREEMENT AND NOTE MODIFICATION (the
"Agreement") dated as of July 30, 1997 between LOST DUTCHMAN PARKS, LLC, an
Arizona limited liability company, having its principal place of business at
0000 X. Xxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000 ("Borrower"), and ASSET INVESTORS
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership, with an address at
0000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxx 00000 ("Lender").
W I T N E S S E T H:
THAT, WHEREAS, XXXXXX XXXXXX ("Xxxxxx") was the original maker
of that certain Promissory Note (the "Note") dated April 15, 1994, in the
original principal sum of FIVE MILLION FIVE HUNDRED THOUSAND AND NO/100THS
DOLLARS ($5,500,000.00) (the "Indebtedness") made to the order of EASTRICH
MULTIPLE INVESTOR FUND, L.P., a Delaware limited partnership ("Original Payee");
WHEREAS, Original Payee was the original holder of the
interest of beneficiary in that certain Deed of Trust, Assignment of Rents,
Security Agreement, Fixture Filing and Financing Statement dated April 15, 1994,
recorded on January 31, 1995, as Document No. 95-0055429, in the records of
Maricopa County, Arizona (the "Deed of Trust") securing the Note and
encumbering, among other things, that certain real property described in the
Deed of Trust (the "Real Property"), originally owned by Xxxxxx;
WHEREAS, by instrument recorded on August 20, 1996, as
Document No. 96-0585339, in the records of Maricopa County, Arizona, Original
Payee transferred and assigned its rights in the Note and Deed of Trust to STATE
STREET BANK AND TRUST COMPANY, AS TRUSTEE FOR THE BENEFIT OF THE HOLDERS OF CS
FIRST BOSTON MORTGAGE SECURITIES CORP. COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 1995-AEW1, serviced by MIDLAND LOAN SERVICES, L.P.
(collectively, "Successor Payee");
WHEREAS, by instrument recorded concurrently herewith in the
records of Maricopa County, Arizona, Successor Payee transferred and assigned
its rights in the Note and Deed of Trust to Lender;
WHEREAS, by instrument recorded concurrently herewith in the
records of Maricopa County, Arizona, Xxxxxx transferred the Real Property to
Borrower; and
WHEREAS, Borrower is willing to assume the obligations
("Obligations") of Xxxxxx under the Note, the Deed of Trust and the other
documents evidencing, securing or otherwise pertaining to the Note (the Note,
Deed of Trust and all such other documents being referred to collectively as the
"Documents"), and Lender is willing to accept Borrower as the principal obligor
under the Documents upon modification of the Note and otherwise on the terms set
forth herein.
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars, the
mutual premises herein contained and other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, Borrower and
Lender agree as follows:
1. Defined Terms. Except as otherwise defined herein or unless the
context otherwise requires, capitalized terms used in this Agreement shall have
the meaning given to them in the Deed of Trust.
2. Representations and Warranties. Borrower hereby represents and
warrants that it has received and is fully familiar with the terms and
conditions of the Documents; and, except to the extent any of such
representations and warranties may be qualified herein or in any other document
executed by Borrower in connection with this Agreement, makes to Lender with
respect to itself as of the date hereof all the representations and warranties
made by Xxxxxx in the Documents as if all the references to Xxxxxx under the
Documents were references to Borrower.
3. Assumption. Borrower hereby assumes and agrees to pay and perform
the Obligations, including without limitation, the Obligations under the Note
and Deed of Trust, and to be bound by all the terms and conditions of the
Documents as if the Documents had originally been executed by Borrower. Each of
the Documents shall remain in full force and effect; and all of the security for
the payment and performance of the Obligations shall remain as security
therefor. Nothing contained herein is intended to or shall be construed to
release, affect the priority of, or otherwise impair any of the security for the
payment and performance of the Obligations. Borrower hereby ratifies and grants
the Lender the liens and security interests set forth in the Documents.
4. Modification of Note. The Note shall be modified to provide that it
shall bear interest at the rate of ten percent (10%) per annum, payable interest
only monthly until maturity. This modification to the Note shall be deemed to
form a part of the Note and is hereby incorporated into the Note to become a
part thereof and shall be deemed to supplement and amend the terms and
conditions of the Note. This modification to the Note is a revision only and not
a novation, and, except as modified above, all other terms and conditions of the
Note shall remain in full force and effect.
5. Release of Lender. Borrower hereby releases Lender and its partners,
and its and their partners, affiliates, directors, officers, employees and
agents from any and all claims, demands, liabilities and causes in action it may
have which may in any manner be related to the Indebtedness on account of any
action or inaction of any such party being released occurring prior to the
execution hereof.
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6. Title Insurance. Borrower shall deliver to Lender a lender's ALTA
policy of title insurance ("Title Policy") from Chicago Title Insurance Company
("Title Company") insuring that the Deed of Trust, as assumed, is in first lien
priority and insuring that Lender is the beneficiary under the Deed of Trust,
subject only to those exceptions shown in Schedule "B" of that certain title
commitment issued by Chicago Title Insurance Company for Order No. 9706711,
dated July 2, 1997.
7. Further Performance. Borrower shall execute and deliver to Lender
such further instruments and do such things as are necessary or desirable, in
the reasonable judgment of Lender, to effect the intent of this Agreement and to
secure to Lender the benefit of all rights and remedies conferred upon Lender by
the terms of this Agreement.
8. Contingencies. This Agreement shall not be binding upon Lender
unless and until the following condition have been satisfied:
(a) Borrower has delivered to Lender the following documents
and other items, all of which shall be properly completed and
executed and shall otherwise by in form and substance
satisfactory to Lender in its reasonable discretion:
(i) such items as Lender may reasonably request.
(b) Title Company is irrevocably committed to issue to Lender
the Title Policy.
Waiver by Lender of any of the foregoing as a condition to the effectiveness of
this Agreement shall not relieve Borrower of the obligation to satisfy such
condition as promptly as possible thereafter.
9. Governing Law. Borrower and Lender hereby agree that this Agreement
shall be interpreted, construed and enforced according to the laws of the State
of Arizona.
10. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
representatives, successors and assigns.
11. Amendments in Writing. This Agreement, and any provisions hereof,
may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Borrower or
Lender, 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.
12. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Borrower and Lender have executed this
Agreement under seal as of the day and year first above written.
BORROWER:
LOST DUTCHMAN PARKS, LLC,
an Arizona limited liability company
By: /s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Its: Manager
LENDER:
ASSET INVESTORS OPERATING PARTNERSHIP, L.P,
a Delaware limited partnership
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Its: Senior Vice President and Chief Financial
Officer of Asset Investors Corporation,
the general partner
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STATE OF ARIZONA
)
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 30
day of July, 1997, by LOST DUTCHMAN PARKS, LLC, an Arizona limited liability
company, by XXXXXX XXXXXX, its Manager, on behalf of the limited liability
company.
/s/Xxxxxxxxx X. Xxxxxx
Notary Public
My Commission Expires:
------------------------
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this _____
day of July, 1997, by ASSET INVESTORS OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership, by Xxxxx Xxxxxxx, its ___________________, on behalf of the
limited partnership.
/s/Xxxxxx Xxxxxx
Notary Public
My Commission Expires:
May 21, 1998
469119\10169.0001
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