EXHIBIT 10.60
PURCHASE MONEY DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
FIXTURE FILING AND SECURITY AGREEMENT
SECURING THE MOTOROLA BUILDING
WHEN RECORDED MAIL TO:
Old Republic Title Agency
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
PURCHASE MONEY
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
FIXTURE FILING AND SECURITY AGREEMENT
THIS PURCHASE MONEY DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, FIXTURE
FILING AND SECURITY AGREEMENT ("Deed of Trust") dated as of March 29, 2000, is
made among XXXXX OPERATING PARTNERSHIP, L.P., a Delaware limited partnership,
whose address is 0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000
("Borrower"), as Trustor, OLD REPUBLIC TITLE AGENCY, INC., an Arizona
corporation ("Trustee"), as Trustee, whose address is 0000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 and XXXX COMPANIES US, INC., a Minnesota
corporation ("Lender"), as Beneficiary, whose address is 700 International
Centre, 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
WITNESSETH:
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, BORROWER IRREVOCABLY GRANTS, BARGAINS, SELLS AND CONVEYS TO
TRUSTEE, ITS SUCCESSORS AND ASSIGNS, IN TRUST, WITH POWER OF SALE AND RIGHT OF
ENTRY AND POSSESSION, the leasehold estate created by that certain ASU Research
Park Lease dated November 19, 1997, by and between Xxxxx-Xxxxxxx Research Park,
Inc., as Landlord, and Lender, as Tenant, a Memorandum of Lease with respect to
which was recorded in the office of the Maricopa County Recorder on December 10,
1997, as Document No. 97-0867851 (the "Lease"), pertaining to that certain real
property (the "Real Property") located in the, County of Maricopa, State of
Arizona, which is described on the attached Exhibit "A" which is made a part of
and incorporated into this Deed of Trust by this reference as though fully set
forth herein.
TOGETHER WITH all right, title and interest of Borrower in and to all of the
following, whether now owned or hereafter acquired:
a. all buildings and other improvements erected or hereafter erected on
the Real Property (collectively, the "Improvements"); and
b. all fixtures, appliances, machinery and equipment of any nature
whatsoever, and other articles of personal property owned by Borrower and now or
at any time hereafter installed in, attached to or situated in or upon the Real
Property or any Improvements now or hereafter erected thereon, or used or
intended to be used in connection with the Real Property, or in the
operation of any Improvements now or hereafter erected thereon, or in the
operation or maintenance of any such Improvement, plant or business situate
thereon, whether or not the personal property is or shall be affixed thereto,
except that the foregoing shall not apply to personal property owned by any
tenant or to any furniture, furnishings, accessories and equipment not owned but
leased by Borrower for use in a management office, or otherwise in the
management and operation of the Improvements constructed on the Real Property;
and
c. all building materials, fixtures, building machinery and building
equipment owned by Borrower and delivered on-site to the Real Property during
the course of, or in connection with, construction of, or reconstruction of, or
remodeling of any building and improvement from time to time during the term
hereof; and
d. all of Borrower's interest in (a) all service contracts relating to the
Real Property, (b) all trade names used in connection with the Real Property,
and solely for use in connection with operation of the Real Property, and (c)
all guaranties and warranties from manufacturers, materialmen and contractors
for work done on or to the Real Property; and
e. all awards or payments, including interest thereon, which may be made
with respect to the Real Property, whether from the exercise of the right of
eminent domain (including any transfer made in lieu thereof) or for any other
injury to or decrease in the value of the Real Property, including, without
limitation, all awards or payments or just compensation, all damages to the Real
Property resulting from any taking, all relocation or dislocation payments and
all out-of-pocket expenses; and
f. all insurance policies covering the Real Property and all proceeds of
any unearned premiums on any such insurance policies including, without
limitation, the right to receive and apply the proceeds of any insurance,
judgment, or settlements made in lieu thereof, for damage to the Real Property;
and
g. any and all tenements, hereditaments and appurtenances belonging to the
Real Property or any part thereof including any water rights, mineral rights,
development rights and strips and gores, or in any way appertaining thereto, and
all streets, alleys, passages, ways, water courses, and all easements and
covenants now existing or hereafter created which relate to the Real Property
for the benefit of Borrower or any subsequent owner or tenant of the Real
Property and all rights to enforce the maintenance thereof, and all other
rights, liberties and privileges of whatsoever kind or character, and the
reversions and remainders, income, rents, issues and profits arising therefrom,
and all the estate, right, title, interest, property, possession, claim and
demand whatsoever, at law or in equity, of Borrower in and to the Real Property
or any part thereof; and
h. all leasehold estates, rights, title and interest of Borrower as
landlord in and to all leases or subleases covering any portion of the Real
Property or Improvements now or hereafter existing or entered into, and all
right, title and interest of Borrower thereunder, including without limitation,
all security deposits (subject to applicable legal restrictions and leases of
tenants), advance rentals, and deposits or payments of similar nature; and
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i. all the rents, issues and profits thereof, and also all the estate,
right, title, interest and all claims and demands whatsoever, as well in law as
in equity, of Borrower in and to the Real Property, now owned or hereafter
acquired, and every item, part and parcel thereof.
All of the above-mentioned Real Property, Improvements, fixtures, machinery,
furniture, equipment, rights, tenements, hereditaments and appurtenances and
other property interests are sometimes collectively referred to herein as the
"Secured Property."
This Deed of Trust also constitutes a "Security Agreement" as that term is
defined in the Uniform Commercial Code as enacted in the State of Arizona with
respect to all of the personal property as identified above appropriated to the
use of the Secured Property and the Improvements owned by Borrower subject to
the lien of this Deed of Trust including, but not limited to, all of the
furniture, furnishings, machinery, apparatus, equipment, fittings, fixtures and
other articles of personal property (excluding any and all personal property
leased by Borrower from any third party) whether affixed or annexed or not,
which shall for purposes of this Deed of Trust, to the extent permitted by law,
be considered as annexed to and forming a part of the Secured Property and the
Improvements; and with respect to any award in eminent domain proceedings for a
taking or loss of value with respect to the Secured Property and the
Improvements; and in all future leases and rents. This Deed of Trust creates a
security interest in Lender, and Borrower does hereby grant to Lender a security
interest in all of the personal property of the Borrower as described above
subject to the lien of this Deed of Trust. With respect to Borrower's interest
in the fixtures described above, this Deed of Trust shall constitute a security
agreement and financing statement between Borrower and Lender and shall be
effective as a financing statement recorded as a fixture filing under the
Uniform Commercial Code, as adopted in the State of Arizona, from the date of
its recordation in the real estate records of the county or counties in which
the real property is located. This security agreement and financing statement
covers the above described fixtures and cumulative of all other rights of Lender
hereunder, Lender shall have all of the rights conferred on secured parties by
the Uniform Commercial Code with respect to such fixtures.
Any reproduction of this Deed of Trust or of any other security agreement or
financing statement shall be sufficient as a financing statement to the extent
permitted by law. In addition, Borrower agrees to execute and deliver to
Lender, upon Lender's request, any financing statements, as well as extensions,
renewals and amendments thereof, and reproductions of this Deed of Trust in such
form as Lender may require to perfect a security interest with respect to said
items. Borrower shall pay all costs of filing such financing statements and any
extensions, renewals, amendments and releases thereof, and shall pay all
reasonable costs and expenses of any record searches for financing statements
Lender may reasonably require. Without the prior written consent of Lender,
Borrower shall not create or suffer to be created pursuant to the Uniform
Commercial Code or otherwise any other security interest in said items,
including replacements and additions thereto. Upon Borrower's breach of any
covenant or agreement of Borrower contained in this Deed of Trust, Lender shall
have the remedies of a secured party under the Uniform Commercial Code and, at
Lender's option, may also invoke the remedies provided in this Deed of Trust as
to such items, and it is expressly agreed that if, upon default, Lender should
proceed to dispose of the collateral in accordance with the provisions of the
Uniform Commercial Code, ten (10) days
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notice by Lender to Borrower shall be deemed to be reasonable notice under any
provisions of the Uniform Commercial Code requiring such notice. In exercising
any of said remedies, Lender may proceed against the items of real property and
any items of personal property specified above as part of the Secured Property
separately or together and in any order whatsoever, without in any way affecting
the availability of Lender's remedies under the Uniform Commercial Code or of
the remedies provided in this Deed of Trust.
TO HAVE AND TO HOLD all of the above granted and described Secured Property with
the appurtenances and any after-acquired title Borrower may subsequently have
obtained therein, unto Lender, its successor or successors, forever; and
Borrower warrants generally its title to the Secured Property free of all liens
and encumbrances, and agrees to execute such further assurances of title as
Lender may reasonably require.
PROVIDED, ALWAYS, and these presents are upon this express condition, that if
Borrower or its successors or assigns, shall well and truly pay unto Lender the
principal amount of that certain Note (as defined below) and the interest and
other fees and charges, if any, thereof, at the time and in the manner mentioned
in the Note as well as any other indebtedness secured hereby, and shall well and
truly abide by and comply with each and every covenant and condition set forth
herein or in the Note, then these presents and the estate hereby granted shall
cease, determine and be void; and provided, further, that until the happening of
any Event of Default as set forth in this Deed of Trust, Borrower shall have the
right to possess and enjoy the Secured Property and a license to receive and
retain the rents, issues and profits thereof; and provided further, that on full
payment of the amounts advanced pursuant to the Note secured by this Deed of
Trust and all property costs, charges, expenses, prepayment charges, and
commissions incurred at any time before the sale hereinafter provided for,
Lender shall release and reconvey the premises unto and at the cost of Borrower
without covenant or warranty to the person or persons legally entitled thereto.
FOR THE PURPOSE OF SECURING:
A. Payment of the indebtedness evidenced by the Promissory Note (the
"Note"), given by Borrower to Lender in the amount of $5,000,000.00, dated of
even date herewith, and together with any interest and all other charges under
the Note, and any renewals, extensions, supplements and modifications of the
Note.
B. Payment of such additional sums and interest thereon which may now or
hereafter be loaned to Borrower, or its successors or assigns, by Lender, when
evidenced by a promissory note or notes reciting that they are secured by this
Deed of Trust.
C. Payment of all other sums, including without limitation, any advances
made by Lender or Trustee for or on account of Borrower, becoming due or payable
under this Deed of Trust, or any other agreement or instrument securing or
pertaining to the Note or the indebtedness (the "Indebtedness") evidenced by the
Note, together with interest thereon at the rate or rates specified in such
instruments.
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BORROWER AND LENDER AGREE AS FOLLOWS:
1. Promise to Defend Title. Borrower is lawfully seized of the estate
conveyed and has the right to grant and convey the Secured Property; the Secured
Property is unencumbered by Borrower; and Borrower will warrant and defend
generally the title to the Secured Property against all claims and demands,
subject to any declarations, easements or restrictions listed in a schedule of
exceptions to coverage in the mortgagee title insurance policy insuring Lender's
interest in the Secured Property.
2. Obligation to Pay. Borrower will pay all amounts under the Note when
due.
3. Performance of Lease. Borrower shall promptly pay when due all rents,
charges, expenses and other sums or amounts required to be paid by the Tenant
under the Lease and shall faithfully keep and perform each and all of the terms,
covenants, provisions and agreements to be kept and performed by the Tenant
under the Lease and shall do all things necessary to preserve and keep
unimpaired the rights and interests of Borrower, as Tenant, under the Lease.
Upon receipt by Lender from the Landlord of any written notice of default or
failure to perform any of the terms, covenants, provisions or agreements of the
Lease to be paid, observed or performed by Borrower, Lender may rely thereon and
may pay any amount and take any action necessary to cure such breach or default,
even though the existence of such breach or default may be questioned or denied
by Borrower. Borrower shall reimburse Lender on demand for all amounts expended
by Lender in effecting such cure, together with interest thereon from the date
of demand at the rate provided in the Note.
4. [Intentionally Omitted]
5. Charges; Liens.
(a) Borrower will pay, prior to delinquency, all taxes, assessments
and other charges, fines and impositions attributed to the Secured Property
which create or may create a lien on any of the Secured Property, and leasehold
payments or ground rents, if any, as provided under Paragraph 3.
(b) Borrower covenants and agrees to and with Lender that if the
Secured Property or any part thereof is encumbered, mortgaged or pledged by
Borrower, whether voluntarily or involuntarily or by operation of law, in either
or any case without the prior written consent of Lender, Lender may, at Lender's
option, declare all of the sums secured by this Deed of Trust to be immediately
due and payable, and Lender may invoke any remedies permitted by this Deed of
Trust.
6. Fire and Other Hazard Insurance; Liability Insurance.
(a) Borrower shall keep the Secured Property and the Improvements
insured for its full replacement value against loss by fire, vandalism and
malicious mischief, perils of extended coverage and other risks as required by
Lender in its reasonable discretion. In addition, Borrower shall provide flood
insurance, if required, in an amount satisfactory to Lender, where
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the Secured Property is now, or in the future is declared to be in a Special
Flood Hazard Area as described in the National Disaster Protection Act of 1973,
as amended. The insurance carrier providing the required coverage will be chosen
by Borrower subject to approval by Lender. All insurance policies and renewals
will include a standard mortgage clause in favor of and in form acceptable to
Lender, including without limitation a clause giving Lender a minimum of thirty
(30) days' notice prior to cancellation. Borrower shall furnish to Lender
originals of all policies of insurance required hereunder. If Borrower fails to
provide Lender with evidence of the required insurance during the term of the
Loan, Lender is authorized, but not obligated, to obtain insurance protecting
Lender's interest only. Borrower will be required to pay Lender the insurance
premium upon request, or the premium may be added to the principal balance of
the Note and accrue interest at the rate specified in the Note. Any sums Lender
may expend for insurance premiums will be secured by this Deed of Trust.
(b) When any hazard loss occurs, Borrower shall give prompt notice to
the insurance carrier and Lender. Lender may submit notice of claim and/or make
proof of loss if not made promptly by Borrower. All insurance proceeds shall be
paid to Lender. Lender agrees that the insurance proceeds shall be applied to
restoration or repair of the Secured Property provided that (i) no Event of
Default exists hereunder, (ii) the restoration or repair will be completed prior
to Xxxxx 0, 0000, (xxx) Borrower first pays all costs in excess of available
insurance proceeds, and (iv) the lease to Motorola, Inc. will remain in full
force and effect. Otherwise, the insurance proceeds shall be applied to the
sums secured by this Deed of Trust, with excess, if any, paid to Borrower. If
the Secured Property is abandoned by Borrower, or if Borrower fails to respond
to Lender within thirty (30) days from the date notice is mailed by Lender to
Borrower that the insurance carrier offers to settle a claim for insurance
benefits, Lender is authorized to collect and apply the insurance proceeds, at
Lender's option, either to the restoration or repair of the Secured Property or
to the sums secured by this Deed of Trust.
(c) Unless Lender and Borrower agree in writing, any application of
proceeds to principal will not extend or postpone the due date of the payments
or change the amount of the payments. If title to the Secured Property is
acquired by Lender, all rights, title and interest of Borrower in any insurance
policies will pass to Lender.
(d) Borrower shall at all times procure and maintain at its sole
expense a policy or policies of liability insurance with respect to activities
on the Secured Property affording coverage not less than $2,000,000 combined
single limit for death or injury to one or more persons or property damage
naming Lender as additional insured. Upon the date of this Deed of Trust and
from time to time before the expiration of any policy shown in the prior
certificate, Borrower shall deliver to Lender certificates (i) evidencing the
required coverage and (ii) obligating the insurer to provide at least 30 days
prior notice to Lender of any cancellation, non-renewal or reduction in limits
of any policy shown on the certificate. Upon request, Borrower shall deliver to
Lender the original or a copy of each policy. All such policies shall be issued
by a responsible insurer licensed to do business in Arizona. Borrower shall
obtain such endorsements and coverage as Lender may reasonably request.
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(e) Borrower shall defend, indemnify and hold Lender harmless from all
claims and liabilities, insured or uninsured, arising on the Secured Property or
resulting from any act or omission of Borrower.
7. Preservation and Maintenance of Property. Borrower will keep the
Secured Property in good repair and will not commit waste or permit impairment
or deterioration of the Secured Property. No Improvements or other property
(except trade fixtures belonging to any tenant) now or hereafter covered by the
lien of this Deed of Trust shall be removed, demolished or materially altered or
enlarged, nor shall any new Improvements be constructed, without the prior
written consent of Lender, except that Borrower shall have the right, without
such consent, to remove and dispose of, free from the lien of this Deed of
Trust, such personal property as from time to time may become worn out or
obsolete, provided that simultaneously with or prior to such removal any such
personal property shall be replaced with other personal property of a value at
least equal to that of the replaced personal property and free from any title
retention or other security agreement or other encumbrance and from any
reservation of title, and by such removal and replacement the Borrower shall be
deemed to have subjected such new personal property to the lien of this Deed of
Trust and the security interest of Lender created hereby shall be the first
priority security interest in said new personal property.
8. Compliance with Laws. Borrower covenants and agrees that it will
comply with or cause to be complied with all present and future laws, statutes,
ordinances, rulings, regulations, covenants, conditions and restrictions, orders
and requirements of all federal, state, municipal, county, and other
governmental agencies and authorities relating to the Secured Property, as well
as all covenants, conditions, and restrictions affecting same and shall pay all
fees or charges of any kind in connection therewith. Borrower further covenants
that it (i) shall not join in the amendment or rescission of any covenants,
conditions and restrictions now or hereafter affecting the Secured Property or
the operation thereof, without the prior written consent of Lender; (ii) shall
give Lender written notice of any request, and, if in writing, a copy of such
request, received by Borrower and requesting Borrower to join in the amendment
of any covenants, conditions or restrictions now or hereafter affecting the
Secured Property or the operation thereof; and (iii) shall give Lender
telephonic notice within one (1) day and written notice (which shall include a
copy of any notice received by Borrower) within three (3) days of Borrower's
receipt of any notice received by or on behalf of Borrower with respect to
Borrower's noncompliance with any of the provisions of covenants, conditions or
restrictions now or hereafter affecting the Secured Property or the operation
thereof. If Borrower fails to correct the conditions specified in the notice to
it, Lender may do so at the sole cost and expense of Borrower, and Borrower
shall reimburse Lender for such cost and expense upon demand. Any amounts so
expended by Lender shall bear interest at the default rate (as defined in the
Note) from the date of expenditure and shall be secured by this Deed of Trust.
9. [Intentionally Omitted]
10. Assignment of Leases and Rents. Borrower, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby conveys, transfers, assigns, sells, sets over and delivers, irrevocably
and absolutely, unto Lender, its
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successors and assigns, all the rights, interest and privileges, which Borrower,
as lessor, has and may have in the leases now existing or hereafter made and
affecting the Real Property, or any part thereof, as such leases may have been,
or may from time to time be hereafter, modified, extended and renewed, with all
rents, income and profits (including tenant security deposits) due and becoming
due therefrom. Borrower will, on request of Lender, execute assignments of any
specific leases affecting any part of the Real Property. Borrower will not
modify or amend the existing lease to Motorola, Inc. without the written
approval of Lender.
11. Protection of Lender's Security. If Borrower fails to perform the
covenants and agreements contained in this Deed of Trust, or if any action or
proceeding is commenced which materially affects Lender's interest in the
Secured Property, including, but not limited to, eminent domain, insolvency,
code enforcement, or arrangements or proceedings involving a debtor in
bankruptcy or decedent, then Lender, at Lender's option, upon notice to
Borrower, may make such appearances, disburse such sums and take such action as
is necessary to protect Lender's interest, including, but not limited to,
disbursement of reasonable attorneys' fees and entry upon the Secured Property
to make repairs. Any amounts disbursed by Lender pursuant to this Paragraph 11,
with interest thereon, will become an additional indebtedness of Borrower
secured by this Deed of Trust. Unless Borrower and Lender agree to other terms
of payment, such amounts will be payable upon notice from Lender to Borrower
requesting payment, and will bear interest from the dates of disbursement at the
rate payable from time to time on the outstanding principal balance under the
Note. Nothing contained in this Paragraph 11 shall impose upon Lender an
affirmative duty to incur any expense or take any action.
12. Inspection. Lender may make or cause to be made reasonable entries
upon and inspections of the Secured Property.
13. Condemnation. The proceeds of any award or claim for damages, direct
or consequential, in connection with any condemnation or other taking of the
Secured Property, or any part of the Secured Property, or for conveyance in lieu
of condemnation are irrevocably assigned and will be paid to Lender; provided
that Lender shall receive only those amounts necessary to satisfy the
outstanding principal balance of the loan and any other additional amounts owed
by Borrower. Any application of proceeds to principal will not affect the due
date or scheduled payments under the Note.
14. Events of Default. The unpaid principal balance of the indebtedness
evidenced by the Note and interest thereon, together with all other applicable
fees and charges evidenced thereby or secured hereby shall become due at the
option of Lender upon the occurrence of an Event of Default (as defined below).
The following shall constitute an "Event of Default" or "Events of Default"
hereunder.
(a) Any failure to pay, within ten (10) days after the dates when due
as provided in the Note, all amounts due and owing under the Note.
(b) Any default in the payment of any other sum due under this Deed of
Trust which is not cured ten (10) days following receipt of written notice from
Lender.
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(c) Unless otherwise provided herein, any non-monetary default which
is not cured within thirty (30) days following receipt of written notice from
Lender.
(d) The imposition of any voluntary or involuntary lien or encumbrance
upon the Secured Property, except as permitted by this Deed of Trust or approved
by Lender.
(e) Borrower assigns, transfers or conveys any interest in all or any
part of the Secured Property.
15. Acceleration; Remedies. Upon the happening of an Event of Default,
Lender, at Lender's option, may declare all of the sums secured by this Deed of
Trust to be immediately due and payable without further demand and may use the
power of sale and any other remedies provided for herein or permitted by
applicable law, including without limitation, the rights and remedies afforded
by Arizona Revised Statutes (S)33-702(B), without regard to the adequacy of the
security or to the solvency of Borrower or whether Trustee or Lender has
commenced to exercise any other right or remedy provided herein or permitted by
applicable law. Lender will be entitled to collect all reasonable costs and
expenses incurred including, but not limited to, reasonable attorneys' fees in
pursuing the remedies provided in this Deed of Trust.
If Lender uses the power of sale, Trustee will give public notice of sale
to the persons and in the manner prescribed by applicable law. After the lapse
of such time as may be required by applicable law, Trustee, without demand on
Borrower, will sell the Secured Property at public auction to the highest bidder
at the time and place and under the terms designated in the notice of sale in
one or more parcels and in such order as Trustee may determine. Trustee may
postpone sale of all or any parcel of the Secured Property in the manner
provided by law. Lender or Lender's designee may purchase the Secured Property
at any sale.
Trustee will deliver to the purchaser a Trustee's Deed conveying the
Secured Property sold without any covenant or warranty, expressed or implied.
The recitals in the Trustee's Deed will be prima facie evidence of the truth of
the statements made. Trustee will apply the proceeds of the sale in the
following order: (a) to all reasonable costs and expenses of the sale,
including, but not limited to, reasonable Trustee's and attorneys' fees and
costs of title evidence; (b) to all sums secured by this Deed of Trust; and (c)
the excess, if any, to the persons legally entitled.
16. Appointment of Receiver; Lender in Possession. Upon the occurrence of
any Event of Default, Lender, in person, by agent, or by judicially appointed
receiver may enter upon, take possession of and manage the Secured Property and
collect the rents from the Secured Property including those past due. All rents
collected by Lender or the receiver will be applied first to payment of the
costs of management of the Secured Property and collection of rent, including
receiver's fees, premiums on receiver's bonds and reasonable attorneys' fees,
and then to the sums secured by this Deed of Trust. Lender and the receiver
will only be liable to account for those rents actually received.
17. Borrower Not Released. Extension of the time for payment or
modification or amortization of the sums secured by this Deed of Trust granted
by Lender to any successor in interest of Borrower will not operate to release,
in any manner, the liability of the original
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Borrower and the original Borrower's successors in interest. Lender will not be
required to commence proceedings against any successor or refuse to extend time
for payment or otherwise modify amortization of the sums secured by this Deed of
Trust by reason of any demand made by the original Borrower and the original
Borrower's successors in interest.
18. Forbearance by Lender Not a Waiver. Any forbearance by Lender in
exercising any right or remedy contained in this Deed of Trust, or otherwise
afforded by applicable law, will not be a waiver of, or preclude the exercise
of, any such right or remedy. The procurement of insurance, or the payment of
taxes, or other liens or charges by Lender will not be a waiver of Lender's
right to accelerate the maturity of the Note or any additional advances.
19. Remedies Cumulative. All remedies provided in this Deed of Trust are
distinct and cumulative to any other right or remedy under this Deed of Trust or
under any other Loan Document or afforded by law or equity, and may be exercised
concurrently, independently or successively.
20. Successors and Assigns Bound; Joint and Several Liability. The
covenants and agreements contained in this Deed of Trust will bind, and the
rights under this Deed of Trust will inure to, the respective successors and
assigns of Lender and Borrower. All covenants and agreements of Borrower will
be joint and several.
21. Notice. Except for any notice required under applicable law to be
given in another manner, all written notices or demands required or permitted
under this Deed of Trust, shall be in writing, delivered in person or sent by
certified mail, return receipt requested, to the address shown on the first page
or to such other address as either party may designate from time to time by
notice to the other. Mailed notices shall be effective upon deposit in the
mail, and personally delivered notices shall be effective upon receipt.
22. Waiver of Rights by Borrower. Borrower waives all the rights and
benefit of all laws now existing or that hereafter may be enacted providing for
(a) any appraisement before sale of any portion of the Secured Property, or (b)
extension of the time for the enforcement or collection of the Note or the
indebtedness evidenced thereby, or (c) creation of an extension of the period of
redemption from or a moratorium on any sale made pursuant to this Deed of Trust.
To the full extent Borrower may do so, Borrower agrees that Borrower will 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,
extension, redemption or moratorium, and Borrower, for Borrower, Borrower's
successors and assigns, and for any and all persons ever claiming any interest
in the Secured Property, to the extent permitted by law, hereby waives and
releases all rights of redemption, valuation, appraisement, moratorium, stay of
execution, notice of election to mature or declare due the whole of the secured
indebtedness and marshaling in the event of foreclosure of the liens hereby
created. If any law referred to in this Paragraph and now in force, of which
Borrower, Borrower's successors and assigns or other person might take advantage
despite this Paragraph, shall hereafter be repealed or cease to be in force,
such law shall not thereafter be deemed to preclude the application of this
Paragraph. Borrower expressly waives
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and relinquishes any and all rights and remedies which Borrower may have or be
able to assert by reason of the laws pertaining to the rights and remedies of
sureties, including without limitation Arizona Revised Statutes, Sections 12-
1641, et seq. and 16 Arizona Revised Statutes, Rules of Civil Procedure, Rule
17(f). Borrower waives, to the full extent permitted by law, all statutes of
limitations as a defense to this Deed of Trust and any obligation secured by
this Deed of Trust.
23. Severability; Governing Law. In the event that any provision or
clause of this Deed of Trust or the Note conflicts with applicable law, such
conflict will not affect other provisions of this Deed of Trust or the Note
which can be given effect without the conflicting provision, and to this end the
provisions of this Deed of Trust and the Note are declared to be severable.
This Deed of Trust shall be governed by, construed and enforced according to the
laws of the State of Arizona and construction shall be without regard to any
legal principles involving which party caused this instrument to be prepared.
24. Reconveyance. Upon payment of all sums secured by this Deed of Trust,
Lender will request Trustee to reconvey the Secured Property and surrender this
Deed of Trust and all notes secured by this Deed of Trust to Trustee. Trustee
will reconvey the Secured Property without warranty to the person legally
entitled, and that person will pay all costs of the reconveyance.
25. Substitute Trustee. Lender may appoint a new Trustee in the manner
provided by law. The new Trustee will succeed to all the title, power and
duties conferred upon the Trustee.
26. No Merger. The estate granted to Lender hereunder shall not merge
with any other estate that Lender may have in the Secured Property, present or
future.
27. Time is of the Essence. Time is of the essence with respect to each
and every covenant, agreement and obligation of Borrower under this Deed of
Trust, the Note and any and all other instruments now or hereafter evidencing,
securing or otherwise relating to the indebtedness.
28. Captions. The captions and headings of the paragraphs of this Deed of
Trust are for convenience only and are not to be used to interpret or define the
provisions of this Deed of Trust.
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BY SIGNING BELOW, BORROWER ACKNOWLEDGES HAVING READ THIS DEED OF TRUST AND
REQUESTS THAT A COPY OF ANY NOTICE OF SALE BE MAILED TO BORROWER AT THE ADDRESS
SPECIFIED HEREIN FOR IT.
IN WITNESS WHEREOF, Borrower has executed this Purchase Money Deed of Trust,
Assignment of Leases and Rents, Fixture Filing and Security Agreement as of the
date first above written.
XXXXX OPERATING PARTNERSHIP, L.P.
By: Xxxxx Real Estate Investment Trust, Inc.,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Its Executive Vice President
STATE OF GEORGIA )
) ss.
COUNTY OF GWINNETT )
The foregoing instrument was acknowledged before me, a Notary Public, this
28th day of March, 2000, by Xxxxxxx X. Xxxxxxxx, the Executive Vice President of
Xxxxx Real Estate Investment Trust, Inc., the General Partner of Xxxxx Operating
Partnership, L.P., a Delaware limited partnership.
/s/ Xxxxxx Xxxx Xxxx
------------------------------------
Notary Public
My Commission Expires:
Notary Public, Gwinnett County, Georgia
My Commission Expires June 24, 2000
---------------------------------------
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