EXHIBIT 10.9
WHEN RECORDED RETURN TO:
Xxxxxx X. Xxxxxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxx & Xxxxxx, P.C.
0000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT
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OF LEASES AND RENTS AND FIXTURE FILING
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DATE: March 25, 1999
TRUSTOR: MATRIX BANCORP, INC., a Colorado corporation
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
TRUSTEE: XXXXXX X. XXXXXXXXXX, XX., a member of the State Bar of Arizona
0000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
BENEFICIARY: THE OHIO NATIONAL LIFE INSURANCE COMPANY
Xxx Xxxxxxxxx Xxx
Xxxxxxxxxx, Xxxx 00000
Attention: Mortgages & Real Estate
Trustor, for itself and its successors and assigns, hereby irrevocably
grants, conveys, transfers and assigns to Trustee, in trust, with power of sale,
all that certain following described property and property rights, corporeal,
incorporeal, tangible or intangible, or otherwise whatsoever (the "Property" or
the "Premises") pursuant to this Deed of Trust, Security Agreement, Assignment
of Leases and Rents and Fixture Filing (the "Deed of Trust"):
I. All that certain real property situate in Maricopa County, Arizona, as
described in Exhibit "A" annexed hereto and hereby incorporated by reference.
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II. TOGETHER WITH:
(a) All buildings and improvements now placed as well as those
hereafter to be placed both thereon and therein, all rents, issues and
profits thereof, all present and future rights, interests, privileges and
easements, held by or inuring to the benefit of Trustor, including, but not
limited to, any interests of any common areas, common elements or common
facilities, which are appurtenant to, belonging to or are necessary or
convenient for the full use and enjoyment of the Property, all
appurtenances, easements, reversions, remainders, water and water rights
and water rights applications, pumps and pumping plants, pipes, flumes and
ditches thereunto appertaining, all rights to the use of water as well as
all rights in ditches for the irrigation of the Property, all shares of
stock evidencing such rights or any of them.
(b) To the extent owned or hereafter acquired by Trustor, all
fixtures, fittings, furniture, furnishings, appliances, apparatus,
equipment and machinery, including, without limitation, all gas and
electric fixtures, radiators, heaters, engines and machinery, boilers,
appliances, elevators and motors, bathtubs, sinks, water closets, basins,
pipes, faucets and other air-conditioning, plumbing and heating fixtures,
mirrors, mantles, refrigerating plant, carpeting, or other floor coverings,
furniture, cooking apparatus and appurtenances, and all building and
construction materials, supplies and equipment now or hereafter delivered
to the Premises and intended to be installed therein or used in connection
with the construction of improvements upon the Premises or used in
connection with or in the operation of the Premises or any business
conducted thereon; all other fixtures and personal property owned by
Trustor of whatever kind and nature at present contained in or hereafter
placed in any building standing on the Premises; and all renewals or
replacements thereof or articles in substitution thereof; and all proceeds
and profits thereof and all of the estate, right, title and interest of the
Trustor in and to all property of any nature whatsoever, now or hereafter
situated on the Premises which shall be deemed to be fixtures and an
accession to the freehold and a part of the realty as between the parties
hereto, and all persons claiming by, through or under them, and shall be
deemed to be a portion of the security for the indebtedness herein
mentioned and secured by this Deed of Trust. If the lien of this Deed of
Trust on any fixtures or personal property be subject to a lease agreement,
conditional sale agreement or chattel mortgage covering such property,
then, in the Event of Default hereunder, all the rights, title and interest
of the Trustor in and to any and all deposits made thereon or therefor are
hereby assigned to the Trustee, together with the benefit of any payments
now or hereafter made thereon, provided, however, that this sentence shall
not be construed as a waiver by Beneficiary of its position that all lien
rights granted hereunder are intended as paramount in priority to any other
liens of any nature, except as provided in Paragraph 1.01. There is also
transferred, set over and assigned by Trustor to Trustee, its successors
and assigns, hereby, all leases and use agreements of machinery, equipment
and other personal property owned by Trustor in the categories hereinabove
set forth, under which Trustor is the lessee of, or entitled to use, such
items, and Trustor agrees to execute and deliver to Trustee or Beneficiary
of
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such leases and agreements when requested by Trustee or Beneficiary; but
nothing herein shall obligate Trustee or Beneficiary to perform any
obligations of Trustor under such leases or agreements unless it so
chooses, which obligations Trustor hereby covenants and agrees to well and
punctually perform.
(c) All deposit and impound accounts, other accounts, accounts
receivable, contract rights, chattel paper and general intangibles,
including without limitation, trade names and trademarks relating solely to
the ownership of, and construction of, improvements upon the Premises,
which are now owned or hereafter owned or acquired by Trustor and/or in
which Trustor now has, or at any time hereafter acquires, an interest and
all renewals, replacements and substitutions thereof and additions thereto.
(d) Any licenses, contracts, permits and agreements now or hereafter
required or used by Trustor in connection with the design, construction,
ownership, operation or maintenance of the Premises.
(e) All proceeds realized from the property described in
subparagraphs (b), (c) and (d) above.
(f) All rents, issues, incomes, profits, revenues, royalties,
bonuses, rights, accounts, contract rights, utility deposits and hook-up
rebates, improvement district rebates, general intangibles and benefits
under any and all leases or tenancies now existing or hereafter created of
the Premises or any part thereof, with the right to receive and apply the
same to the indebtedness secured hereby, and Trustee or Beneficiary may
demand, xxx for and recover such payments, but shall not be required to do
so.
(g) All judgments, awards of damages and settlements hereafter made
as a result of or in lieu of any taking of the Premises or any part thereof
or interest therein under the power of eminent domain, or for any damage
(whether caused by such taking or otherwise) to the Premises or the
improvements thereon or any part thereof or interest therein, including any
award for change of grade of streets.
(h) All insurance proceeds due under policies of insurance required
to be kept under this Deed of Trust, all of which are assigned as
additional and further security.
(i) All architectural and engineering plans and specifications
prepared for construction of improvements on the Premises and all studies,
data, and drawings related thereto; and also all construction contracts and
agreements of the Trustor relating to the aforesaid plans and
specifications or to the aforesaid studies, data, and drawings or to the
construction of improvements on the Premises.
The items set forth in these subparagraphs (b) through (i) are sometimes
hereinafter referred to as the "Collateral". This instrument is and shall be
construed as both a deed of trust
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and a security agreement, and, to the extent that any of the property herein
described, including, without limitation, the Collateral, is deemed to be
personal property or fixtures or property not subject to an encumbrance upon
real estate, Trustor hereby grants unto Beneficiary a security interest in and
to such property pursuant to the Uniform Commercial Code as adopted by and now
in effect in the State of Arizona.
Trustor makes the foregoing grants to Trustee to hold the Property in trust
for the benefit of Beneficiary and for the purposes and upon the terms and
conditions hereinafter set forth.
III. FOR THE PURPOSE OF SECURING:
(a) Payment of the sum of ONE MILLION AND NO/100 DOLLARS
($1,000,000.00) with interest thereon, late charges, attorneys' fees and
other sums due according to the terms of that certain promissory note of
even date herewith, executed and delivered by Trustor to Beneficiary, and
any extensions, modifications, renewals or replacements thereof (the
"Note").
(b) Payment, with interest and other costs and charges thereon, in
accordance with the terms of the obligation or obligations evidencing same,
of any and all additional advances made by Beneficiary to Trustor under the
Note and extensions, modifications, renewals or replacements thereof.
(c) Payment of all obligations incurred, and of all monies expended
or advanced, by the Beneficiary pursuant to the terms hereof, the terms of
the Commitment for Loan and the modification/amendment thereof
(collectively the "Loan Agreement"), or of such other instruments or
documents relating to the indebtedness hereby secured (collectively,
including the Loan Agreement and the Deed of Trust, the "Security
Documents"), and payment of all monies expended or advanced by Beneficiary
or on its behalf to preserve any right of Beneficiary hereunder, or to
preserve any rights of Beneficiary under any other documents or instruments
securing the Note, or to protect or preserve the Property or any part
thereof, all of which are hereby declared to be a lien on the Property and
secured hereby. If there is any conflict between the terms of the Loan
Agreement and the Note or any of the Security Documents, then the terms of
the Note or Security Documents shall prevail.
(d) Provided, however, that if the Trustor shall pay or cause to be
paid to the holder of the Note the principal and all accrued and unpaid
interest to become due thereupon at the time and in the manner stipulated
therein, shall pay or cause to be paid all other sums payable thereunder or
hereunder and all indebtedness hereby secured, then, in such case, the
estate, right, title and interest of the Trustee and Beneficiary in the
Premises shall cease, determine and become void, and upon proof being given
to the satisfaction of the Beneficiary that the Note, together with all
accrued and unpaid interest thereon, have been paid or satisfied, and upon
payment of all fees, costs, charges, expenses
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and liabilities chargeable or incurred or to be incurred by Trustee or
Beneficiary, and of any other sums as herein provided, the Trustee shall,
upon receipt of the written request of the Beneficiary, reconvey, without
warranty, the Property then held hereunder. The recitals in such
reconveyance may be described as "the person or persons legally entitled
thereto".
ARTICLE ONE
Trustor's Covenants
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Trustor covenants and agrees with Trustee and Beneficiary that:
1.01 Title.
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(a) The Trustor warrants that it has good and marketable title to an
indefeasible fee simple estate in the real estate as described in Exhibit
-------
"A" hereto, subject to no liens, charges or encumbrances, except as set
---
forth on Exhibit "B" annexed hereto and hereby incorporated by reference
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(such matters set forth on Exhibit "B" being hereinafter referred to as the
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"Permitted Exceptions"), and that Trustor has full power and authority to
grant, bargain, sell and convey the Premises in the manner and form herein
done or intended hereafter to be done; that this Deed of Trust is and shall
remain a valid and enforceable first lien on the Premises subject only to
the Permitted Exceptions; that Trustor and its successors and assigns shall
warrant and defend the same forever against the lawful claims and demands
of all persons whomsoever; and that this covenant shall not be extinguished
by any exercise of power of sale, foreclosure, sale, acceptance of a deed
in lieu of foreclosure or exercise of other remedies of Beneficiary
hereunder, but shall run with the land.
(b) Trustor has and shall maintain title to the Collateral, including
any additions or replacements thereto, free of all security interests,
liens and encumbrances, other than the security interest hereunder and
other than as disclosed to and accepted by Beneficiary in writing. Trustor
has the unrestricted power, right and authority to subject the Collateral
to the security interest hereunder.
(c) The Trustor shall, at the cost of the Trustor, and without
expense to the Beneficiary, do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, deeds of trust, assignments,
notices of assignments, transfers and assurances as the Beneficiary shall
from time to time reasonably require, for the better assuring, conveying,
assigning, transferring and confirming unto the Trustee or Beneficiary the
Property rights hereby conveyed or assigned or which the Trustor may be or
may hereafter become bound to convey or assign to the Trustee or
Beneficiary, or for carrying out the intention or facilitating the
performance of the terms of this Deed of Trust, or for filing, registering
or recording this Deed of Trust, and on demand, shall execute and deliver,
and
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hereby authorizes the Trustee to execute in the name of the Trustor to the
extent it may lawfully do so, one or more financing statements, chattel
mortgages or comparable security instruments, to evidence more effectively
the lien hereof upon the Collateral.
(d) The Trustor forthwith upon the execution and delivery of this
Deed of Trust, and thereafter from time to time, shall cause this Deed of
Trust, and any security instrument creating a lien or evidencing the lien
hereof upon the Collateral, and each instrument of further assurance to be
filed, registered or recorded in such manner and in such places as may be
required by a present or future law in order to publish notice of and fully
to protect the lien hereof upon, and the interest of the Trustee or
Beneficiary in, the Premises.
(e) The Trustor shall pay all filing, registration or recording fees
of this Deed of Trust and any deed of trust supplemental hereto, any
security instrument with respect to the Collateral, and any instrument of
further assurance, and all federal, state, county and municipal stamp taxes
and other taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of the Note, this Deed of
Trust, any deed of trust supplemental hereto, any security instrument with
respect to the Collateral or any instrument of further assurance.
(f) The Trustor shall do all things necessary to preserve and keep in
full force and effect its existence, franchises, rights and privileges
under the laws of the state of its formation and this state if other than
its state of formation and shall comply with all regulations, rules,
ordinances, statutes, orders and decrees of any governmental authority or
court applicable to Trustor or to the Premises or any part thereof.
(g) The Trustor shall timely pay all installments of principal and
interest and all other sums to be paid pursuant to the Note as therein
specified and shall comply with all terms, provisions and performances as
are required by the Security Documents and each of them.
1.02 Taxes and Assessments. The Trustor shall pay in full before
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delinquent and before any penalty or interest attaches, all general taxes and
assessments, special taxes, special assessments, water charges, sewer service
charges, and all other charges against the Property and shall furnish to
Beneficiary official receipts evidencing the payment thereof; provided, however,
that Trustor shall have no obligation to pay any such tax, assessment or charge
which Trustor is duly contesting in good faith and at Trustor's sole expense.
Trustor shall notify Beneficiary and shall indemnify Beneficiary against the
sale, forfeiture of or creation of a lien against the Premises resulting from
the Trustor's failure to pay the charges set forth in this paragraph 1.02.
1.03 Taxes on Deed of Trust. Trustor shall protect Beneficiary insofar as
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it may be lawful so to do, against any and all loss from any taxation on
indebtedness or deeds of trust, direct or indirect, that may be or might be
imposed on this Deed of Trust, or the lien of this Deed of
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Trust on said Property, or upon the debt hereby secured, by any law, rule,
regulation or levy of the Federal government or of the State of Arizona, or any
political subdivision thereof, by the payment by the Trustor of any such tax or
taxes, other than income taxes. Should the Trustor fail, neglect or refuse to
pay before the same becomes delinquent any such tax or taxes, Beneficiary may,
at its option, pay the same, and the amount or amounts thereof shall be secured
by this Deed of Trust, shall be due and payable on demand, and shall bear
interest at the Default Rate of Interest as defined in the Note, from the date
of payment by Beneficiary. In the event the burden of any such taxation on
indebtedness or deeds of trust cannot lawfully be shifted from Beneficiary to
Trustor, Beneficiary may, at its option, declare the whole unpaid principal
balance, together with accrued interest, due and payable thirty (30) days after
notice to Trustor.
1.04 Maintenance and Repair. Trustor shall keep the Premises in good
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operating order, repair and condition and shall not commit or permit any waste
thereof. Trustor shall make or cause to be made all repairs, replacements,
renewals, additions or improvements and complete and restore promptly and in
good workmanlike manner any building or improvements which may be constructed,
damaged or destroyed thereon, and pay when due all costs incurred therefor.
Trustor shall not remove from the Premises or demolish any of the property
conveyed hereby, nor demolish or materially alter such Premises without the
prior written consent of Beneficiary, except Trustor may alter the Premises
without obtaining consent of Beneficiary if such alterations do not materially
diminish its value or its ability to produce rental income and, further, Trustor
may remove portions of the Property for purposes of repair and restoration which
shall diligently thereafter be replaced. Trustor shall permit Trustee or
Beneficiary or its agents the opportunity to inspect the Premises, including the
interior of any structures, at any reasonable times, upon telephonic notice, and
to protect and care for the same and enforce any rights of Beneficiary
hereunder.
1.05 Liens and Encumbrances. The Trustor shall pay (or bond within ten
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(10) days after Trustor has knowledge of the recordation of any lien) when due
all obligations, lawful claims or demands of any person which, if unpaid, might
result in or permit the creation of a lien or encumbrance on the Premises or on
the rents, issues, income and profits arising therefrom, whether such lien would
be senior or subordinate hereto, including, but without limiting the generality
of the foregoing, any claims of mechanics, materialmen, laborers and others for
work or labor performed, or materials or supplies furnished, in connection with
any work of demolition, alteration, improvement of or construction upon the
Premises and in general will do or cause to be done everything necessary so the
lien of this Deed of Trust shall be fully preserved, at the cost of the Trustor,
without expense to the Trustee or Beneficiary. Beneficiary shall, upon notice
of any such lien or encumbrance, remove the same by payment or bond.
1.06 Compliance with Laws; Permits, Approvals, Zoning.
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(a) Trustor shall comply with all laws, ordinances, regulations,
covenants, conditions and restrictions now or hereafter affecting the
Premises and the operation thereof. Trustor shall obtain and at all times
keep in full force and effect such
7
governmental and municipal approvals as may be necessary to comply with all
environmental, ecological, handicap access and use, and other governmental
requirements relating to the Premises or to the use or occupancy thereof,
as such requirements may from time to time exist.
(b) Trustor shall not initiate, join in or consent to any change in
any private restrictive covenant, zoning ordinance (which may include
dedications of a part of the Property as a condition of such zoning), or
other public or private restrictions, limiting or defining the uses which
may be made of the Property or any part thereof, without first obtaining
the written consent of the Beneficiary, which will not be unreasonably
withheld, provided such consent will not cause Beneficiary to incur any
obligation or liability or result in diminution of value of the Property.
(c) Neither Trustor nor Trustor's agents, representatives, tenants,
nor third-parties in possession shall fail to comply fully with the
requirements of the Americans with Disabilities Act and all regulations
adopted pursuant thereto and any similar or corresponding state or local
laws, ordinances and regulations (collectively, the "ADA").
(d) Trustor, at Trustor's own expense, shall comply and cause its
agents, employees, contractors, and invitees to comply with all present and
hereinafter enacted Environmental Laws (as hereinafter defined), and any
amendments thereto, affecting the use of the Property, or the operations of
Trustor, Trustor's agents, representatives, tenants or third-parties in
possession of the Property. The term "Environmental Laws" shall include,
but not be limited to, all of the following: the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. (S) 9601
et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. (S) 1801 et
-- --- --
seq.; the Resource Conservation and Recovery Act, 42 (S) 6941 et seq.; the
--- -- ---
Toxic Substances Control Act, 15 U.S.C. (S) 2601 et seq.; the Safe Drinking
-- ---
Water Act, 42 U.S.C. (S) 300h et seq.; the Clean Water Act, 33 U.S.C. (S)
-- ---
1251 et seq.; the Clean Air Act, 42 U.S.C. (S) 7401 et seq.; the
-- --- -- ---
Occupational Health and Safety Act, 29 U.S.C. (S) 651 et seq.; the Arizona
-- ---
Hazardous Waste Management Act, A.R.S. (S) 49-921 et seq.; the Arizona
-- ---
Environmental Quality Act, Laws 0000, Xx. 368; Laws 0000, Xx. 317, as
amended; the Arizona Underground Storage Tank Regulation Act, A.R.S. (S)
49-1001 et seq.; and regulations or guidelines thereunder and any other
-- ---
federal, state or local laws, ordinances, rules, regulations and orders now
in effect or hereinafter enacted that deal with the regulation or
protection of the public health or environment (including the ambient air,
groundwater, surface water, and land use, including sub-strata land).
Neither Trustor nor Trustor's agents, representatives, tenants, nor third-
parties in possession shall suffer or permit the Property or any portion
thereof to be used as a site for the storage, disposal, use, generation or
manufacture of any "Hazardous Materials", suffer or permit the Property to
be contaminated by any Hazardous Materials or transport to or from the
Property any Hazardous Materials except that cleaning substances may be
stored and used at the Property in compliance with Environmental Laws. For
the purpose of this Deed of Trust, Hazardous Materials shall
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include but shall not be limited to: (i) flammable explosives, radioactive
materials, hazardous wastes, toxic substances or related materials and
petroleum fuels or distillates; (ii) all substances defined as "hazardous
substances," "hazardous materials," or "toxic substances" including, but
not limited to, those regulated under the Environmental Laws, and under the
rules, regulations and guidelines promulgated or adopted pursuant to those
laws. Trustor agrees that in the event the Property or any condition
existing thereon is ever determined by any court or governmental agency to
be in violation of any Environmental Law or any ordinance or regulation
relating to occupational health or safety, public health or safety or
public nuisance or menace, Beneficiary, at its option, but without
obligation to do so, may correct such condition or violation and in doing
so shall conclusively be deemed to be acting reasonably and for the purpose
of protecting the value of its collateral, and Beneficiary may charge all
costs of correcting such condition or violation to Trustor, which amounts
shall be due upon demand and secured hereby, and shall bear interest from
the date expended by Beneficiary until paid at the rate set forth in the
Note.
(e) Trustor shall indemnify and hold Beneficiary harmless from all
expenses of ADA compliance or any required remediation in connection with
the ADA, and all expenses of clean-up, removal and/or correction of a
condition or violation as set forth in subparagraph (d) above, occasioned
by the violation of any Environmental Law or the discovery of any Hazardous
Materials on or off of the Property, whether or not any demand for such
action is made by any regulatory agency or demand for reimbursement is made
for such clean-up or correction as performed by such an agency. Trustor
shall provide notice to Beneficiary immediately upon the receipt of claims
made by any third-party, including without limitation, governmental
agencies, against Trustor or the Property because of environmental
contamination of the Property or any portion thereof.
Further, Trustor shall indemnify and hold Beneficiary harmless from
and against all claims, demands, liabilities, costs and expenses,
including, without limiting the generality of the foregoing, attorneys'
fees, expert witness fees and all other costs of defense arising from,
related to or connected with the generation, manufacture, storage,
disposal, use, location, removal and/or transportation of any Hazardous
Material to, upon or from the Property or the contamination of the Property
by any Hazardous Material, whether or not such storage, disposal, use,
location, transportation or contamination occurred before or after Trustor
acquired or disposed of any interest in the Property or was or may be in
whole or in part the result of any act or omission of any third party.
(f) The provisions of this paragraph 1.06: (i) shall be binding on
Trustor and any guarantor of the indebtedness secured hereby or of the Note
and any successor in interest to Trustor or any such guarantor, jointly and
severally, and (ii) shall survive and remain enforceable notwithstanding,
and shall not merge in or be exonerated by the execution, delivery or
acceptance of any deed in lieu of foreclosure or any trustee's or sheriff's
deed
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upon foreclosure, by payment and satisfaction of the indebtedness secured
hereby or by the release, satisfaction and discharge of this Deed of Trust.
1.07 Insurance.
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(a) Trustor shall keep the buildings and improvements and Collateral
now existing or which hereafter may be erected, placed or situated on the
Property continuously insured by policies of All Risk Replacement Cost
Insurance, including fire and extended coverage for loss or damage by fire,
tornado, windstorm, war risk (if available), flood (if the Property is in
an area which considered a flood-risk area by the U.S. Department of
Housing and Urban Development), in the amount of the full replacement costs
of the buildings and improvements on the Property, but in no event less
than the full balance of the Note remaining unpaid from time to time and in
an amount sufficient to prevent Trustor from being a co-insurer of any
loss, rental or business interruption insurance in an amount equal to not
less than six (6) months gross scheduled rents form the Property for
business losses sustained and expenses necessarily incurred to resume
normal business operations as a result of interruption of business or the
untenantability of the Property when the improvements thereon or Trustor's
personal property is damaged as a result of peril required to be insured
against hereunder, and such other insurance protection as may from time to
time may be required by Beneficiary. This insurance shall not provide for
a deductible of more than Five Thousand and no/100 Dollars ($5,000.00)
without Beneficiary's prior written consent and it shall include "Agreed
Amount" and "Inflation Guard" endorsements.
(b) Trustor shall continuously maintain comprehensive personal
liability insurance, with single limit coverage of not less than One
Million Dollars ($1,000,000.00), naming as insured both Trustor and
Beneficiary.
(c) All insurance to be maintained by Trustor shall be with an
insurance company or companies acceptable to Beneficiary, and shall be in
form and content acceptable to Beneficiary, with loss, if any, payable to
Beneficiary and Trustor as their interests may appear, pursuant to a
standard trust deed beneficiary clause which shall be satisfactory to
Beneficiary. All such policies shall provide that Beneficiary will receive
thirty (30) days' written notice of cancellation, lapse or effectiveness or
any material change in coverage or in the amounts of coverage. Upon the
issuance of such policies, Trustor shall promptly deliver the originals
thereof and all renewals thereof to Beneficiary or its designated agent.
Trustor shall also deliver to Beneficiary evidence of the payment of
premiums due on such policies at least thirty (30) days prior to the
expiration of any existing or renewal policy. In the event of foreclosure
of this Deed of Trust or other transfer of title to the Property in
extinguishment of the indebtedness secured hereto, all right, title and
interest of Trustor in and to any insurance policies then in force
concerning the Property shall pass to the purchaser or Beneficiary, as the
case may be.
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(d) Trustor shall not take out separate insurance concurrent in
form or contributing in the event of loss with that required to be
maintained hereunder unless Beneficiary is included thereon under a
Standard Trust Deed Beneficiary Clause acceptable to Beneficiary. Trustor
shall promptly notify Beneficiary whenever any such separate insurance is
taken out and shall promptly deliver to Beneficiary the policy or policies
of such insurance. In the event of a foreclosure or other transfer of title
to the Premises in lieu of foreclosure, or by purchase at the foreclosure
sale, or by the exercise of power of sale, or otherwise, all interest in
any insurance policies in force shall pass to Beneficiary, transferee or
purchaser as the case may be.
1.08 Condemnation and Casualty Damage.
--------------------------------
(a) The Trustor, promptly upon obtaining knowledge of the
institution of any proceeding for the condemnation of the Premises or any
portion thereof, shall notify Beneficiary of the pendency thereof. Trustor
hereby assigns, transfers and sets over unto Beneficiary all compensation,
rights of action, all proceeds to the extent necessary to pay and satisfy
the Note in full of any award and any claim for damages for any of the
Premises taken or damaged under the power of eminent domain or by
condemnation or by sale in lieu thereof. In the event Beneficiary shall
reasonably determine that Trustor is not making a reasonable, diligent
effort to commence, appear in and prosecute any action or proceeding
relating to any condemnation or other taking of the Property, Trustor
authorizes Beneficiary, at Beneficiary's option, as attorney-in-fact for
Trustor, to commence, appear in and prosecute, in Beneficiary's or
Trustor's name, any action or proceeding relating to any condemnation or
other taking of the Property, whether direct or indirect, and to settle or
compromise any claim in connection with such condemnation or other taking.
The condemnation proceeds shall be promptly paid to Beneficiary and applied
to reduce the indebtedness secured hereby, whether or not then due;
provided however, Beneficiary, in its sole discretion and at its sole
option, after deducting therefrom all reasonable expenses, including
attorneys' fees, may apply the proceeds of the award for restoration or
rebuilding of the Premises in a commercially viable manner. Such proceeds
shall be made available in the manner and upon the conditions that the
Beneficiary may require in the manner provided under paragraph 1.08(b),
including the right to require Trustor to deposit with Beneficiary any
deficiency between the proceeds and the cost of restoration. If the
proceeds are made available by the Beneficiary to reimburse Trustor for the
cost of said rebuilding or restoration, any surplus which may remain out of
said award after payment of such cost of rebuilding or restoration shall,
at the option of the Beneficiary, be applied on account of the indebtedness
secured hereby or be paid to Trustor. Trustor agrees to execute such
further assignments of any compensation, award, damages, right of action
and proceeds as Beneficiary may require.
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(b) Trustor shall promptly notify Beneficiary of any loss or damage
to the Property, whether covered by insurance or not. In the event of loss
or damage by fire or any other hazard or casualty against which insurance
shall have been required by Beneficiary, Trustor shall promptly make proof
of loss; provided, however, in the event Trustor does not diligently
proceed to make proof of loss and attempt to diligently in good xxxxx
xxxxxx and adjust any claim under the insurance policies, then Beneficiary
reserves the right to settle and adjust any claim under such insurance
policies. Trustor hereby authorizes and directs any insurer to pay
insurance proceeds directly to Beneficiary at its option, instead of
jointly to Trustor and Beneficiary. The insurance proceeds shall be
received by Beneficiary and, in Beneficiary's sole discretion and at its
sole option, applied to reduce the indebtedness secured hereby, whether or
not then due, or held by it as trustee and along with Trustor's deposits as
hereinafter provided in this Paragraph made available to Trustor for the
reconstruction or repair as the work progresses, no less frequently than on
a monthly basis, upon certificates by architects licensed to do business in
Arizona showing the application of the amount paid for such repairs,
rebuilding or reconstruction. Prior to the commencement of such
reconstruction or repair, Trustor shall at its expense prepare all plans
and specifications necessary for such restoration or repair (which plans
and specifications shall be subject to Beneficiary's reasonable approval,
and Beneficiary shall have the right to impose reasonable requirements in
connection therewith and with said repairs) and submit the same to
Beneficiary, together with evidence reasonably acceptable to Beneficiary
setting forth the total expenditure needed for such restoration and repair
based upon a bonded, fixed-price contract with a reputable contractor
reasonably acceptable to Beneficiary. In the event the insurance proceeds
are insufficient to complete such repair or restoration in the opinion of
the architects based upon fixed price contract bids or proposals, then
Trustor shall, within ten (10) days of executing any contract for repair or
restoration, deposit with Beneficiary an amount equal to the difference
between the insurance proceeds deposited with Beneficiary and the total
contract price for such restoration and repair. Trustor may then commence
such restoration or repair, and disbursements shall be made from said
account for such restoration or repair in accordance with a disbursement
schedule, and subject to other terms and conditions acceptable to
Beneficiary, provided that such disbursements shall be charged first
against funds deposited in said account by Trustor and, second, after such
funds are exhausted, against the insurance proceeds deposited therein.
1.09 Indemnification; Legal Fees.
---------------------------
(a) If any action or proceeding is commenced to which action or
proceeding the Trustor or Beneficiary is made a party, or in which it
becomes necessary to defend or uphold the lien of this Deed of Trust, the
Trustor shall appear in and defend any suit, action or proceeding that
might in any way, and in the sole judgment of Beneficiary, materially
adversely affect the value of the Property, the title to the Property, the
priority of this Deed of Trust, or the rights and powers of Trustee or
Beneficiary. Beneficiary may, at its option, appear in and defend any such
suit, action or proceeding, and may pay,
12
purchase or contest any adverse claim, encumbrance, charge or lien, that in
the judgment of Beneficiary appears to be prior or superior to the lien of
this Deed of Trust. Trustor shall, at all times, indemnify, hold harmless
and, on demand, reimburse Beneficiary for any and all loss, damage, expense
or cost, including cost of evidence of title and accountants' and
attorneys' fees, arising out of or incurred in connection with any such
suit, action or proceeding, including any action before the Federal
Bankruptcy Court, and the sum of such expenditures shall be secured by this
Deed of Trust and shall bear interest at the rate provided in the Note
secured hereby and shall be due and payable on demand. Trustor shall pay
cost of suit, cost of evidence of title and reasonable attorneys' fees in
any proceeding or suit brought by Trustee or Beneficiary to foreclose this
Deed of Trust.
(b) In the event that it becomes necessary for the Beneficiary to
employ legal counsel or to take legal action to collect the indebtedness
secured hereby, to enforce any provision hereof, or to protect any of
Beneficiary's rights hereunder, Trustor agrees to pay to Beneficiary, in
addition to taxable costs of any legal proceeding or action, reasonable
attorneys' fees actually incurred, and all costs of preparation and conduct
of such proceedings, including costs of title searches and title policy
commitments, all of which shall be a lien upon the Property and secured by
these presents, and all of which shall be payable whether suit be brought
or not and whether through courts of original jurisdiction, appellate
courts, Bankruptcy Court or through other legal proceedings. If one or
more of the Events of Default (as hereinafter defined) shall happen,
Trustor shall pay to the Trustee, on demand, all reasonable costs, charges,
fees and disbursements of the Trustee chargeable or incurred in the
administration and the performance of its powers and duties hereunder.
1.10 Advances; Substitute Payment or Performance by Beneficiary.
----------------------------------------------------------
(a) Except as may be otherwise provided in this Deed of Trust,
should Trustor fail to pay or perform when required hereunder any
obligation of Trustor hereunder, Beneficiary may, but shall not be
obligated to, without regard to the adequacy of its security and without
prejudice to its right to declare a default hereunder, pay or perform the
same without notice to or demand upon Trustor. The payment by Beneficiary
of any delinquent tax, assessment or governmental charge, or any lien or
encumbrance which Beneficiary in good faith believes might be prior hereto,
or any insurance premium for insurance which Trustor is obligated to
provide hereunder but which Beneficiary in good faith believes has not been
supplied, shall be conclusive between the parties as to the legality and
amount so paid. Beneficiary shall be subrogated to all rights, equities and
liens discharged by any such expenditure. After any default hereunder and
whether or not an action is instituted to enforce any provision of the
Note, hereof or any other instrument securing the Note, Trustor promises to
pay to Beneficiary any reasonable sums incurred in good faith by
Beneficiary for attorneys' fees and costs to enforce such obligations or to
protect or enforce any of Beneficiary's rights hereunder. Any amounts so
paid pursuant to this paragraph 1.10, or the cost of such performance,
together with all costs and
13
expenses incurred by Beneficiary in connection with such payment or
performance, and any amounts for which Trustor is specifically obligated to
reimburse Beneficiary or Trustee pursuant to provisions of this Deed of
Trust, including reasonable attorneys' fees and interest on all such
amounts at the rate of interest provided in the Note which applies after a
default of the Maker therein (the Trustor herein) from the date paid by
Beneficiary until repaid to Beneficiary, shall be payable by Trustor to
Beneficiary immediately upon notice to Trustor of the amount owing, without
further demand and shall be secured by this Deed of Trust.
(b) If any permitted subordinate mortgage, deed of trust or other
lien or encumbrance (the "Encumbrance") shall be in default by reason of
non-payment of principal or interest, or for any reason, Beneficiary may,
but shall not be obligated to, cure such default with notice to Trustor and
the cost of curing such default, with interest at the Default Rate of
Interest as defined in the Note, shall be added to the indebtedness secured
by this Deed of Trust and may be collected from Trustor upon demand at any
time after the time of such advance or advances, and the Beneficiary shall
be subrogated to the rights of the lienholder so paid. The Trustor,
immediately upon receiving any written notice of any default under any
Encumbrance, shall give written notice thereof to Beneficiary and shall
give to Beneficiary promptly upon receipt thereof, a true copy of each and
every notice, summons, legal process, legal paper or other communication
relating in any way to any Encumbrance or to the performance or enforcement
thereof, or to any default thereunder.
(c) Trustor agrees to make monthly deposits in an account with
Beneficiary, which account shall be subject to the control of Beneficiary,
of a sum equal to one-twelfth (1/12) of the yearly taxes and assessments
which may be levied against the Premises, and the annual premiums to become
due for all insurance policies required hereunder. The amount of such
taxes, assessments and insurance premiums, when unknown, shall be estimated
by Beneficiary. Such deposits shall be used by Beneficiary to pay such
taxes, assessments and insurance premiums, if such accumulated funds are
sufficient to pay the same. Any insufficiency of such account to pay such
charges as aforesaid shall be paid by Trustor to Beneficiary on demand.
Beneficiary is further authorized to withhold from the proceeds of any loan
secured by this Deed of Trust, or to require additional deposits by
Beneficiary of, monies to create a deposit sufficient, when added to the
monthly deposits to be made by Trustor prior to the next due dates for such
insurance premiums and taxes and assessments respectively, to pay such next
due insurance premiums, taxes and assessments. If, by reason of any
default by Trustor under any provision of this Deed of Trust, Beneficiary
declares all sums secured hereby to be due and payable, Beneficiary then
may apply any funds in said account against the entire indebtedness secured
hereby. The enforceability of the covenants relating to taxes, assessments
and insurance herein otherwise provided shall not be affected except
insofar as those obligations have been met by compliance with this
paragraph. Beneficiary may from time to time at its option waive, and after
any such waiver reinstate, any or all provisions hereof requiring such
deposits,
14
by notice to Trustor in writing. While any such waiver is in effect,
Trustor shall pay taxes and assessments as herein elsewhere provided. Such
deposits and the funds in said account may be commingled with other
deposits and funds held by Beneficiary, and Beneficiary shall not be liable
to Trustor for any interest on such deposits and funds, or for
Beneficiary's commingling or use thereof, provided that monies in
equivalent amount to those deposited by Trustor are utilized in the manner
and for the purposes hereinabove specified.
1.11 Time. The Trustor agrees that time is of the essence hereof in
----
connection with all obligations of the Trustor herein or in said Note or any
other instruments constituting additional security for said Note.
1.12 Estoppel Certificates; Financial Statements. The Trustor within ten
-------------------------------------------
(10) days after request from the Beneficiary, shall furnish a duly acknowledged
written statement setting forth the unpaid balance of the debt secured by this
Deed of Trust, the date to which interest has been paid, copies of all
documents, instruments and modifications evidencing or securing the debt, and
stating either that no defaults, set-offs or defenses are alleged to exist, or
if any exist, the nature and amount thereof.
1.13 Assignment of Rents and Leases.
------------------------------
(a) As additional and collateral security for the payment of the
Note and all sums to become due under this Deed of Trust, Trustor hereby
assigns to Beneficiary all leases, rents and other revenues, rights and
benefits accruing to Trustor hereunder, (including, without limitation,
rents received by Trustor as Landlord under that certain Lease dated
November 30, 1998, as amended on February 17, 1999, in which Matrix
Financial Services Corporation is the "Tenant" of the Premises (the "Matrix
Lease"), and all present and future leases (including all other agreements
by which occupancy of the Premises is granted) on the Premises or any part
thereof (collectively, the "Leases"), with the right to receive the same
and apply them to the Note or other indebtedness secured hereby. Although
the interest of the Beneficiary by virtue of the foregoing assignment shall
be deemed to be vested and xxxxxx as of the date hereof, Trustor may
collect and retain such rents and other revenues until Beneficiary gives
written notice of its intention to collect such amounts. Beneficiary shall
not give such notice unless an Event of Default has occurred. Upon giving
such notice, Beneficiary is thereupon further authorized, at its option, to
execute and deliver to the holder of any such Lease upon the Premises
binding receipts for any payments made under the terms of any such Lease or
Leases and to demand, xxx for and recover any such payments when due.
Trustor shall not (i) anticipate any rents (except for a period of one
month) that may be collectible under such lease or that may have been
assigned to Beneficiary; (ii) further assign any such Lease or any such
rents; (iii) amend or modify the terms of the Matrix Lease, except within
sixty (60) prior to the Termination Date of the Lease as the term may be
extended by Trustor, Trustor shall provide Beneficiary with a written copy
of a fully executed non-cancellable agreement for the extension of the term
of the Matrix Lease for one (1) additional year at a monthly rent
15
of not less Thirty Thousand Six Hundred Twenty-Four Dollars ($30,624.00);
and (iv) enter any lease except as such is approved in writing by
Beneficiary. This Assignment shall terminate and become null and void upon
release of this Deed of Trust.
(b) Upon Beneficiary's request, Trustor shall give Beneficiary
separate specific assignments of rents and leases covering some or all of
the leases, the terms of such assignments being incorporated herein by
reference. Unless otherwise specified by Beneficiary in writing, all
existing and future leases for the use or occupancy of all or any part of
the Premises shall be made and entered only on written lease agreement
forms, which forms shall have been previously approved by Beneficiary in
writing, and shall be inferior to the lien of this Deed of Trust. Trustor
hereby appoints Beneficiary its attorney-in-fact, coupled with an interest,
and power in Beneficiary to subordinate any leases to this Deed of Trust.
Beneficiary reserves the right throughout the term of this Deed of Trust to
require that specific leases be made superior to this Deed of Trust.
(c) After an Event of Default, all rents collected by Trustor shall
be applied in any manner that Beneficiary deems
advisable and without regard to the manner and
priorities set forth in the Assignment of Leases
and Rents. Receipt by Beneficiary of such rents,
issues and profits shall not constitute a waiver
of any right that Beneficiary may enjoy under this
Deed of Trust or under the laws of Arizona, nor
shall the receipt and application thereof cure any
default hereunder nor affect any foreclosure
proceeding or any sale authorized by this Deed of
Trust and the laws of Arizona, unless such rental
amounts under applicable law effect a
reinstatement hereunder.
(d) In the event the Beneficiary shall institute judicial proceedings
to foreclose the lien hereof, and shall be appointed as mortgagee in
possession of the Premises, the Beneficiary during such time as it shall be
mortgagee in possession of the Premises pursuant to an order or decree
entered in such judicial proceedings, shall have, and the Trustor hereby
gives and grants to the Beneficiary, the right, power and authority to make
and enter into leases of the Premises or portions thereof for such rents
and for such periods of occupancy and upon such conditions and provisions
as such mortgagee in possession may deem desirable and Trustor expressly
acknowledges and agrees that the term of any such lease may extend beyond
the date of any sale of the Premises pursuant to a decree rendered in such
judicial proceedings; it being the intention of the Trustor that while the
Beneficiary is a mortgagee in possession of the Premises and pursuant to an
order or decree entered in such judicial proceedings, such Beneficiary
shall be deemed to be and shall be the attorney in fact of the Trustor for
the purpose of making and entering into leases of parts or portions of the
Premises for the rents and upon the terms, conditions and
16
provisions deemed desirable to such Beneficiary and with like effect as if
such leases had been made by the Trustor as the owner in fee simple of the
Premises free and clear of any conditions or limitations established by
this Deed of Trust. The power and authority hereby given and granted by the
Trustor to the Beneficiary shall be deemed to be coupled with an interest
and shall not be revocable by Trustor.
1.14 Personal Property Security Interest.
-----------------------------------
(a) This Deed of Trust shall cover and encumber the Collateral. All
of the Collateral, to the fullest extent permitted by law, shall be deemed
fixtures and a part of real property, but, whether or not such property is
deemed a fixture and a part of real property, it shall be fully subject to
this Deed of Trust. This Deed of Trust shall constitute a security
agreement within the meaning of Article 9 of the Uniform Commercial Code of
the State of Arizona ("UCC") as to the property described in this paragraph
1.14(a) and as to any other property covered and encumbered by this Deed of
Trust as to which the provisions of such Article 9 of the UCC may apply,
and is intended to create a security interest in such property in favor of
Beneficiary. This Deed of Trust shall be self-operative with respect to
such property, but Trustor agrees to execute and deliver on demand such
security agreements, financing statements and other instruments as
Beneficiary may request in order to impose or perfect the lien hereof more
specifically upon any of such property. If the lien of this Deed of Trust
on any property is now, or shall hereafter be, subject to a prior security
interest covering such property, by reason of a purchase money security
interest or otherwise, then all the right, title and interest of Trustor in
and to any and all deposits thereon is hereby assigned to Beneficiary,
together with the benefit of any payments now or hereafter made thereon.
The foregoing sentence shall not operate as the Beneficiary's consent to
any such security interest.
(b) In the event Trustor owns or acquires only a lessee's interest in
any such personal property, then, in addition to the foregoing
requirements, before any of said personal property is placed in, on or
about the premises or improvements at any time situate thereon:
(i) The written approval of Beneficiary to the leasing
agreements under which Trustor owns or acquires such lessee's interest
shall have first been obtained, and
(ii) All consents of the lessor of any such leasing
agreements to such security interest of Beneficiary, and all
agreements of the lessor in favor of Beneficiary deemed necessary by
Beneficiary, shall first have been obtained to the satisfaction of
Beneficiary.
(c) Trustor agrees that all property of every nature and description,
whether real or personal, covered by this Deed of Trust, together with all
personal property in
17
which Beneficiary has a security interest by reason of a separate agreement
or instrument, are encumbered as one unit, and that, upon default by
Trustor under or with respect to any of the obligations, or under any other
instrument executed in favor of Beneficiary to secure the obligations and
such security interests of Beneficiary may, at Beneficiary's option,
pursuant to A.R.S. (S) 47-9501(D) be foreclosed or sold in the same
proceeding, and all of the premises (both realty and personalty) may, at
Beneficiary's option, be sold as such in one unit as a going business,
subject to the provisions of A.R.S. (S) 33-810(A). The filing or recording
of any financing statement relating to any personal property or rights or
interests generally or specifically described herein shall not be construed
to diminish or alter any of Beneficiary's rights or priorities hereunder.
(d) Upon its recording in the real property records, this Deed of
Trust shall be effective as a financing statement filed as a fixture
filing. In addition, a carbon, photographic or other reproduced copy of
this Deed of Trust and/or any financing statement relating hereto shall be
sufficient for filing and/or recording as a financing statement. The
filing of any other financing statement relating to any personal property,
rights or interest described herein shall not be construed to diminish any
right or priority hereunder.
1.15 Due on Sale or Encumbrance. Trustor acknowledges that Beneficiary
--------------------------
( and not any subsequent transferee), in making the loan secured hereby, has
recognized and relied upon the financial strength and operating ability of the
Trustor. In the event the Trustor voluntarily, involuntarily or by operation of
law, shall sell, convey, transfer, further mortgage or encumber or dispose of
the Property or any part thereof, or any interest therein, or agrees so to do
(the "Transfer"), without the written consent of Beneficiary being first
obtained (which shall not be unreasonably withheld, taking into consideration
those matters, among others, as set forth in subparagraphs [i] through [iv]),
the Beneficiary, at its sole option and within its sole discretion, may declare
the entire indebtedness secured hereby to be due and payable in full and call
for payment of the same in full at once, including a prepayment premium equal to
the premium due in the case of an acceleration of the Note after default as
provided in the Note. Trustor shall not change or dissolve its corporate status
without the prior written approval of Beneficiary which shall not be
unreasonably withheld. Beneficiary agrees not to unreasonably withhold its
consent to a transfer of interest to any family members for estate planning
purpose which aggregate less than voting control of Trustor. In the event
Trustor shall request the consent of Beneficiary to the Transfer or the stock
transfer(s) or corporate dissolution or change of Borrower, Trustor shall
deliver complete information regarding such Transfer with the request and shall
allow the Beneficiary at least thirty (30) days for evaluation of such request.
Consent as to any one Transfer shall not be deemed to be a waiver of the right
to require consent to future Transfers and such consent shall not release the
Trustor from any obligations hereof, the Note or of any of the Security
Documents. The Beneficiary shall be entitled to consider, or to receive, as
appropriate, among other matters, the following with respect to the approvals
requested for a Transfer or for a change or dissolution of Trustor's status:
18
(i) A title report as of the date of the Transfer showing no
adverse title consequences since the date hereof; reports of the
creditworthiness, financial strength and proven commercial real estate
experience of the assuming person or entity as determined by
Beneficiary in its sole and good faith discretion after review of all
relevant information requested by Beneficiary (the Beneficiary hereby
reserving the right to require professional leasing and management of
the Premises by a company approved by Beneficiary pursuant to a
contract in form and content acceptable to Beneficiary);
(ii) Such reasonable consideration as Beneficiary may determine
and an administrative fee for all costs and expenses of review and
processing such assumption and Transfer, including, without
limitation, attorneys' fees; and
(iii) The Beneficiary's satisfaction that the assignee can repay
the Note from sources other than the operation or sale of the
Premises.
(iv) From the assuming person or entity an assumption agreement
in form and content acceptable to Beneficiary and its counsel
evidencing the assumption of the obligation to pay the Note and all
other sums secured hereby and perform the other terms and conditions
of the Deed of Trust and guaranties as required by the Beneficiary.
1.16 Operating Statements; Financial Statements.
------------------------------------------
(a) Trustor, within ninety (90) days after the end of each fiscal year
during the term hereof, will furnish to Beneficiary detailed income and expense
statements for the Property, which shall be prepared by a certified public
accountant and satisfactory to Beneficiary. The financial and operating
statements shall include, without limitation, a balance sheet and a profit and
loss statement all, in reasonable detail and conforming to generally accepted
accounting principles, shall be prepared at Trustor's expense and shall be
satisfactory in form and content to Beneficiary. In the event Trustor fails to
furnish any such statements, Beneficiary may cause an audit to be made of the
respective books and records at the sole cost and expense of Trustor.
Beneficiary also shall have the right to examine at their place of safekeeping
at reasonable times all books, accounts and records relating to the operation of
the Premises. Trustor, within ninety (90) days after the end of each calendar
year during the term hereof shall furnish Beneficiary with audited financial
statements of both Borrower and Matrix Financial Corporation..
(b) Trustor shall, until the full release of this Deed of Trust, deliver to
Beneficiary on an semi-annual basis within thirty (30) days following January 1
and July 1 of each Loan Year (as that term is defined in subparagraph (c) below)
a rent roll for the Property certified by the officer of Trustor stating (i) the
names of all tenants, (ii) the amount of space leased to each tenant and their
suite number, (iii) the annual rent being paid by each tenant, (iv) the rent per
square foot paid by each tenant, (v) common area, participation or expense
reimbursement paid by each tenant, (vi)
19
lease expiration date and options available for each tenant, and (vii) vacant
space with a suit designation for each vacant space.
(c) For the purpose of this subparagraph "Loan Year" means each twelve
(12) month period beginning on the date of the first installment payment due
under the terms of the Note and each anniversary thereafter. Beginning during
the last sixty (60) days of the first Loan Year and during the last sixty (60)
days of each Loan Year thereafter, Trustor shall extend the Matrix Lease for an
additional one (1) year term, thus providing for a minimum remaining term under
the Matrix Lease of five (5) years. Trustor will deliver to Beneficiary annually
a copy of the executed, non-cancelable lease extension in form and content and
on terms and conditions satisfactory to Beneficiary.
1.17 Representations and Warranties of Trustor. The Trustor hereby
-----------------------------------------
represents and warrants as follows:
(a) Trustor is a duly formed, validly existing Colorado corporation
qualified to do business in the State of Arizona, and Trustor has been duly
authorized to incur the indebtedness evidenced by the Note and grant this
Deed of Trust and enter into other instruments executed and delivered to
Beneficiary concurrently herewith or in connection with the Note.
(b) This Deed of Trust, the Note and all other instruments executed
and delivered to Beneficiary concurrently herewith are valid and legally
binding obligations and undertakings of the Trustor and will not conflict
with or cause a breach or default in any of the other obligations or
undertakings of the Trustor.
(c) The execution and delivery of this Deed of Trust, the Note and
any other instruments executed and delivered to Beneficiary concurrently
herewith, and the full and complete performance of the provisions hereof
and thereof will not result in any breach of, or constitute a default
under, or result in the creation of any lien, charge or encumbrance (other
than those contained herein or in any instrument delivered to Beneficiary
concurrently herewith) upon any property or assets of Trustor under any
indenture, mortgage, deed of trust, bank loan, or credit agreement or other
instrument to which Trustor is a party or by which Trustor is bound.
(d) The indebtedness hereby secured is solely for the purpose of
carrying on a business or commercial investment.
(e) That, to best of Trustor's knowledge after investigation and
inquiry, the Property is in all respects in compliance with all Federal,
State of Arizona and local laws, ordinances and regulations relating to
industrial hygiene, environmental protection, occupational health and
safety, public health and safety or public nuisance or menace, including,
without limitation, the Resource Conservation and Recovery Act, 42 U.S.C.
(S)(S)
20
6901, et seq., the Comprehensive Environmental Response Compensation
-- ---
and Liability Act of 1980, 42 U.S.C. (S)(S) 9600, et seq. and the Superfund
-- ---
Amendments and Reauthorization Act thereof, the Toxic Substances Control
Act, 15 U.S.C. (S)(S) 2601, et seq., the Clean Air Act, 42 U.S.C. (S)(S)
-- ---
7401, et seq., and the Clean Water Act, 33 U.S.C. (S)(S) 1251, et seq., and
-- --- -- ---
the 1984 amendments to the Resource Conversation and Recovery Act
pertaining to underground storage tanks, 42 U.S.C. (S)(S) 6991(a), et seq.,
-- ---
and the laws of the State of Arizona pertaining to the environment as
modified and Arizona Revised Statutes Title 49 or ]otherwise relating to
soil, ambient air and waters of any classification and similar
environmental conditions on site and off site of the Property. Further,
the Property has never been used and will not be used by Trustor or a third
party (including without limitation, any lessee) to generate, manufacture,
store, dispose of or otherwise deal with or transport to or from, any
petroleum-based products or Hazardous Materials; provided, however, Trustor
has and may hereafter store and use cleaning substances in compliance with
all Environmental Laws.
(f) That Trustor has investigated the current and prior uses of the
Property and that there have been no releases, disposal, discharges or
leaks of Hazardous Materials on or from the Property.
(g) That Trustor is not required to obtain any permits or licenses
pursuant to any of the laws referenced in subparagraph 1.06(e) above in
connection with the use, operation and enjoyment of the Property and/or the
business conducted thereon.
(h) That the Property is zoned for the operation of an office
building and there are no violations of any zoning ordinances affecting the
Property.
(i) That to the best of its knowledge, after due and diligent
inquiry, the improvements constructed on the Property and their use comply
fully with (and no notices of violations have been received in connection
with) zoning, planning, building, health, fire, traffic, safety and other
governmental or regulatory rules, laws, ordinances, statutes, codes and
requirements applicable to the Property. The zoning approval for the
Property is not dependent upon the ownership or use of any other property
or rights which are not included within the definition of the Property and
thereby subject to the Deed of Trust.
(j) All authorizations, licenses and permits, operating permits and
all other authorizations or permits required to allow the improvements
constructed on the Property to be fully operated have been obtained, paid
for and are in full force and effect.
(k) All improvements on the Property including but not limited to
parking areas, building entrances, common areas within the improvements to the
Property and as otherwise presently situated or which will be constructed on the
Property are or will be, as applicable, in full compliance with all applicable
requirements of the ADA.
21
The aforesaid representations and warranties of Trustor shall survive and
remain enforceable notwithstanding, and shall not merge in or be exonerated by
the execution, delivery or acceptance of any deed in lieu of foreclosure or any
trustee's or sheriff's deed upon foreclosure, by payment and satisfaction of the
indebtedness secured hereby or by the release, satisfaction and discharge of the
indebtedness secured hereby or by the release, satisfaction and discharge of
this Deed of Trust and shall inure to the benefit of the Beneficiary and
Trustee, and their respective successors and assigns.
ARTICLE TWO
Default
-------
2.01 Events of Default. One or more of the following events ("Events of
-----------------
Default") shall be deemed a default hereunder:
(a) Failure to make any payment or perform any monetary obligation
under the Note, the Deed of Trust or other Security Document on the due
date; provided, however, Beneficiary shall not institute a judicial
foreclosure unless Trustor fails to cure such default within ten (10) days
after Beneficiary gives Trustor written notice of the default as provided
in Paragraph 3.08 hereof;
(b) Failure to perform any other obligation (i.e., an obligation
which does not involve the payment of money or the fulfillment of a
monetary obligation) within thirty (30) days after Beneficiary gives
Trustor written notice of default as provided in Paragraph 3.08 hereof; or
(c) Breach of any warranties or material representations or breach
of any of the covenants of Trustor, including, without limitation, those as
set forth in paragraphs 1.06 and 1.17 hereof;
(d) Any breach or default under or the institution of foreclosure or
other proceedings to enforce any permitted junior mortgage, deed of trust,
contract for sale of real estate, or other security interest or other lien
or encumbrance of any kind upon the Premises, or any portion thereof, and
the subordination agreements pertaining thereto unless such foreclosure or
proceeding is dismissed or stayed, prior to the conclusion of the
Beneficiary's remedies herein, in which event the Note and this Deed of
Trust shall be reinstated;
(e) Should the then current owner of the Property or any guarantor
of the Note secured hereby, as the case may be:
(i) file a petition under any chapter of the Federal Bankruptcy
Code or any similar law, state or federal, whether now or hereafter
existing; or
22
(ii) in any involuntary bankruptcy case commenced against any of
them: (l) file an answer admitting that it is generally not paying its
debts as such debts become due, (2) fail to obtain a dismissal of such
case within forty-five (45) days of its commencement, (3) convert the
case from one chapter of the Bankruptcy Code to another chapter of the
Bankruptcy Code, or (4) be the subject of an order for relief in such
bankruptcy case; or
(iii) have a "trustee", as that term is defined in the Federal
Bankruptcy Code, appointed for it, or have any court take jurisdiction
of its property, or substantially all thereof, in any voluntary
proceeding for the purpose of reorganization, arrangement,
dissolution, or liquidation, if such custodian shall not be discharged
or if such jurisdiction shall not be relinquished, vacated or stayed
on appeal within forty-five (45) days of the appointment; or
(iv) make an assignment for the benefit of its creditors; or
(v) consent to the appointment of a "trustee", as that term is
defined in the Bankruptcy Code, of all of its property or
substantially all thereof.
(f) Notice is received by Trustor from any environmental protection
agency that the Property or any portion thereof is or may be in violation
of any federal, state or local laws, ordinances or regulations adopted in
connection with the protection of the environment, whether any clean-up or
corrective measures with respect thereto may be or is required and Trustor
fails to immediately transmit such notice to Beneficiary or such notice is
received by Trustor, Trustee or Beneficiary and Trustor fails (i) to
promptly respond thereto as may be required by law or regulation, (ii) to
develop a plan of remediation if such is required by law, regulation or
Beneficiary, (iii) to develop a plan of remediation which is acceptable to
the governmental authority having jurisdiction or Beneficiary, or (iv) to
contest any required clean-up or remediation in the manner prescribed by
law or if such contest is unsuccessful fails to timely undertake such
clean-up or remediation as may then be required.
(g) Failure to deliver to Beneficiary as and when required the copy
of the non-cancellable extension of the Matrix Lease as provided in paragraph
1.13(a)(iii) hereof and such failure continues for a period of five (5) days
after Beneficiary gives Trustor written notice of such failure or the
termination of the Matrix Lease prior to repayment in full of the Note.
2.02 Remedies.
--------
(a) Upon and after any such Event of Default, the Beneficiary may
declare the entire principal of the Note then outstanding (if not then due
and payable), and all accrued and unpaid interest thereon, all premiums
payable thereunder and all other obligations of Trustor hereunder to be due
and payable immediately, and upon any such declaration, the
23
principal of the Note and said accrued and unpaid interest shall become and
be immediately due and payable, anything in the Note or in this Deed of
Trust to the contrary notwithstanding.
(b) During the existence of an Event of Default, the Trustee or
Beneficiary personally, or by its agents or attorneys, may enter into and
upon all or any part of the Premises, and each and every part thereof, and
may exclude the Trustor, its agents and servants wholly therefrom; and
having and holding the same, may use, operate, manage and control the
Premises and conduct the business thereof, either personally or by its
superintendents, managers, agents, servants, attorneys or receivers; and
upon every such entry, the Trustee or Beneficiary at the expense of the
Trustor, from time to time, either by purchase, repairs or construction,
may maintain and restore the Premises, may complete the construction of the
improvements and in the course of such completion may make such changes in
the contemplated improvements as it may deem desirable and may insure the
same, and likewise, from time to time, at the expense of the Trustor, the
Trustee or Beneficiary may make all necessary or proper repairs, renewals
and replacements and such useful alterations, additions, betterments and
improvements thereto and thereon as to it may seem advisable; and in every
such case the Trustee or Beneficiary shall have the right to manage and
operate the Premises and to carry on the business thereof and exercise all
rights and powers of the Trustor with respect thereto, either in the name
of the Trustor or otherwise as it shall deem best; and the Trustee or the
Beneficiary shall be entitled to give notice to any and all lessees and
tenants under leases that all rent shall be paid to Beneficiary (whether or
not the Beneficiary has entered or taken possession of the Property), to
rent and lease the Property or portions thereof to such persons, for such
periods of time, and on such terms and conditions as Beneficiary, in its
sole discretion, may determine, to collect and receive all earnings,
revenues, rents, issues, profits and income of the Premises and every part
thereof, all of which shall for all purposes constitute property of the
Beneficiary; and
(c) Upon and after any such Event of Default, the Beneficiary shall
have all of the remedies of a Secured Party under the Uniform Commercial
Code of Arizona, including without limitation, the right and power to sell,
or otherwise dispose of, the Collateral, or any part thereof, and for that
purpose may take immediate and exclusive possession of the Collateral or
any part thereof, and with or without judicial process, enter upon any
Premises on which the Collateral, or any part thereof, may be situated and
remove the same therefrom without being deemed guilty of trespass and
without liability for damages thereby occasioned, or at Beneficiary's
option, Trustor shall assemble the Collateral and make it available to the
Beneficiary at the place and at the time designated in the demand.
Beneficiary shall be entitled to hold, maintain, preserve and
prepare the Collateral for sale. Beneficiary, without removal, may render
the Collateral unusable and dispose of the Collateral on the Trustor's
Premises. To the extent permitted by law, Trustor expressly waives any
notice of sale or other disposition of the Collateral and any
24
other right or remedy of Trustor existing after default hereunder, and to
the extent any such notice is required and cannot be waived, Trustor agrees
that, as it relates to this paragraph (c) only, if such notice is marked,
postage prepaid, to the Trustor at the above address at least ten (10) days
before the time of the sale or disposition, such notice shall be deemed
reasonable and shall fully satisfy any requirement for giving of said
notice.
(d) The Trustee may, and upon the written request of Beneficiary
shall, with or without entry, personally, or by its agents or attorneys,
insofar as applicable:
(i) Sell the Premises and all estate, right, title and
interest, claim and demand therein, and right of redemption thereof,
at one or more sales as an entity or in parcels, and at such time and
place, upon such terms and after such notice thereof as may be
required or permitted by law at public auction to be the highest
bidder for cash, in lawful money of the United States, payable at the
time of sale. If Beneficiary desires Trustee to exercise the power of
sale granted hereby, it shall execute and deliver to Trustee a written
declaration of default and demand for sale and shall surrender to
Trustee this Deed of Trust, the Note and all documents evidencing any
expenditures hereunder, together with such other documents as the
Trustee may reasonably require. Beneficiary shall also execute and
deliver to Trustee all notices to Trustor, if any, that must be signed
by Beneficiary. Upon receipt thereof, Trustee shall sell the property
as provided by law. Trustee may postpone the sale as provided by law;
or
(ii) Institute proceedings for the complete or partial
foreclosure of this Deed of Trust as a mortgage; or
(iii) Apply to any court of competent jurisdiction for the
appointment of a receiver or receivers to take charge of all of the
Property, to manage, operate and carry on any business then being
conducted thereon, or that could be conducted thereon, and to carry
on, protect, preserve, replace and repair the Property, and receive
and collect all the rents, issues and profits thereof and to apply the
same first to the payment of receiver's expense for management,
operation and protection of the business and the Property, and then in
the manner provided in paragraph 1.13(c) hereof. Upon appointment of
such receiver, Trustor will deliver possession of the Premises to the
receiver forthwith;
(iv) Take such steps to protect and enforce their rights whether
by action, suit or proceeding in equity or at law for the specific
performance of any covenant, condition or agreement in the Note or in
this Deed of Trust, or in aid of the execution of any power herein
granted, or for any foreclosure hereunder, or for the enforcement of
any other appropriate legal or equitable remedy or otherwise as the
Beneficiary shall elect.
25
(e) Beneficiary may at any time request cancellation of Trustee's
notice of sale, whereupon Trustee shall execute and record, or cause to be
recorded, a Cancellation of Notice of Sale in the same county in which the
Notice of Sale was recorded. The exercise by Beneficiary of this right
shall not constitute a waiver of any default existing or subsequently
occurring. In the event this Deed of Trust and the indebtedness and
obligations secured hereby are reinstated in the manner provided by law,
Beneficiary shall forthwith notify Trustee thereof as provided by law.
Upon such notification, Trustee shall record or cause to be recorded a
Cancellation of Notice of Sale in the same county in which the Notice of
Sale was recorded within the period then required by law.
(f) At any time before the Property has been sold pursuant to the
power of sale granted hereby, this Deed of Trust may be foreclosed in the
manner provided by law for the foreclosure of mortgages on real property.
Provided that prior to commencing judicial foreclosure proceedings only,
Beneficiary shall deliver written notice to Trustor, and Trustor shall have
five (5) days from the notice to cure the default, including the payment of
all additional interest and charges as specified herein and in the Note.
(g) Upon the completion of any sale or sales made by the Trustee
under or by virtue of this Section, the Trustee, or an officer of any court
empowered to do so, shall execute and deliver to the accepted purchaser or
purchasers a good and sufficient instrument, or good and sufficient
instruments, conveying, assigning, and transferring all estate, right,
title and interest in and to the property and rights sold, but without any
covenant or warranty, express or implied. The recitals in such deed of any
manners or facts shall be conclusive proof of the truthfulness thereof.
Except as otherwise provided by law, any such sale or sales made under or
by virtue of this Section, whether made under the power of sale herein
granted or under or by virtue of judicial proceedings or of a judgment or
decree of foreclosure and sale, shall operate to divest all the estate,
right, title, interest, claim and demand whatsoever, whether at law or in
equity, of the Trustor in and to the properties and rights so sold, and
shall be a perpetual bar both at law and in equity against the Trustor and
against any and all persons claiming or who may claim the same, or any part
thereof from, through or under the Trustor.
(h) In the event of any sale made under or by virtue of this
Section, whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure of
sale, the entire principal of, and interest on, the Note, if not previously
due and payable, and all other sums required to be paid by the Trustor,
pursuant to this Deed of Trust, immediately thereupon shall, anything in
the Note or in this Deed of Trust to the contrary notwithstanding, become
due and payable.
(i) The purchase money proceeds or avails of any sale made under or
by virtue of this Section, together with any other sums which then may be
held by the Trustee or Beneficiary under this Deed of Trust whether under
the provisions of this Section or otherwise, shall be applied as follows:
26
First: To the payment of the costs and expenses of such sale,
including reasonable compensation to the Trustee and Beneficiary,
their agents and counsel, and of any judicial proceedings wherein the
same may be made, and of all expenses, liabilities and advances made
or incurred by the Trustee or Beneficiary under this Deed of Trust,
together with interest at the rate specified in the Note, on all
advances made by the Beneficiary and all taxes or assessments, except
any taxes, assessments or other charges subject to which the Premises
shall have been sold.
Second: To the payment of the whole amount then due, owing or
unpaid upon the Note for principal and interest, with interest on the
unpaid principal and accrued interest at the rate specified in the
Note, from and after the happening of any Event of Default described
above from the due date of any such payment of principal until the
same is paid.
Third: To the payment of any other sums required to be paid by
the Trustor pursuant to any provisions of this Deed of Trust or of the
Note.
Fourth: The surplus, if any, to whomsoever may be lawfully
entitled to receive the same.
(j) Upon any sale under or by virtue of this Section, whether made
under the power of sale herein granted or under or by virtue of judicial
proceedings or of a judgment or decree of foreclosure and sale, the
Beneficiary may bid for and acquire the Premises or any part thereof and in
lieu of paying cash thereof may make settlement for the purchase price by
crediting upon the indebtedness of the Trustor secured by this Deed of
Trust the net sales price after deducting therefrom the expenses of the
sale and the cost of the action and any other sums which the Beneficiary is
authorized to deduct under this Deed of Trust. The Beneficiary, upon so
acquiring the Premises, or any part thereof, shall be entitled to hold,
lease, rent, operate, manage and sell the same in any manner provided by
applicable laws.
2.03 Foreclosure; Sale of Realty and Personalty as a Unit; Other Remedies.
--------------------------------------------------------------------
Trustor agrees that all property of every nature and description, whether real
or personal, covered by this Deed of Trust, together with all personal property
covered by such security interests, are encumbered as one unit, and that upon
default by Trustor under the Note secured hereby or under this Deed of Trust or
any security agreement interests, at Beneficiary's option, may be foreclosed or
sold in the same proceedings, and all of the Trust Property (both realty and
personalty) may, at Beneficiary's option, be sold as such in one unit, pursuant
to the provisions of Arizona Revised Statutes, Section 47-9501(d), or at
Beneficiary's option, Beneficiary shall be entitled to exercise its rights of
enforcement under the Uniform Commercial Code in force in Arizona at the date of
this Deed of Trust.
27
2.04 Marshalling of Assets; Waiver. The Trustor on its own behalf and on
-----------------------------
behalf of its successors and assigns hereby expressly waives all rights to
require a marshalling of assets by Trustee or Beneficiary or to require Trustee
or Beneficiary to first resort to the sale of any portion of the Premises which
might have been retained by Trustor before foreclosing upon and selling any
other portion as may be conveyed by Trustor subject to this Deed of Trust. Any
Trustor that has signed this Deed of Trust as a surety or accommodation party,
or that has subjected its property to this Deed of Trust to secure the
indebtedness of another hereby expressly waives the benefits of the provisions
of Arizona Revised Statutes, Section 12-1641, et seq., waives any defense of
-- ---
Trustor or by reason of the cessation from any cause whatsoever of the liability
of Trustor, and waives the benefit of any statutes of limitation affecting the
enforcement hereof.
2.05 Extensions/Waivers by Beneficiary. Beneficiary may at any time
---------------------------------
extend the time for payment of the indebtedness hereby secured, or any part
thereof, or interest thereon, and waive any of the covenants or conditions of
the Note or in this Deed of Trust contain, in whole or in part, either at the
request of the Trustor or of any person having an interest in the property, take
or release other security, release any part of the property or any party
primarily or secondarily liable on the Note or hereunder or on such other
security, grant extensions, renewals or indulgences therein or herein, apply to
the payment of the principal and interest and premium, if any, of the
indebtedness hereby secured any part or all of the proceeds obtained by sale or
otherwise as herein provided, without resort or regard to other security, or
resort to any one or more of the securities or remedies which Beneficiary may
have and which in its absolute discretion it may pursue for the payment of all
or any part of the indebtedness hereby secured, in such order and in such manner
as it may determine, all without in any way releasing Trustor from any of the
covenants, agreements, or conditions of the Note or this Deed of Trust, or
relieving the unreleased property from the lien of this Deed of Trust for all
amounts owing under the Note and this Deed of Trust.
2.06 Non-Waiver. By accepting payment of any sum secured hereby after its
----------
due date or late performance of any right against any person obligated directly
or indirectly hereunder or on any indebtedness hereby secured, Beneficiary shall
not have waived its right either to require prompt payment when due of all other
sums so secured or to declare a default for failure to make such prompt payment.
No exercise of any right or remedy by Trustee or Beneficiary hereunder shall
constitute a waiver of any other right or remedy herein contained or provided by
law.
No delay or omission of the Trustee or Beneficiary in the exercise of
any right, power or remedy accruing hereunder or arising otherwise shall impair
any such right, power or remedy, or be construed to be a waiver of any default
or acquiescence therein.
Except as otherwise provided by law, receipts of rents, awards, and
any other monies or evidences thereof, pursuant to the provisions of this Deed
of Trust and any disposition of the same by Trustee or Beneficiary shall not
constitute a waiver of the power of sale or right
28
of foreclosure by Trustee or Beneficiary in the event of default or failure of
performance by Trustor of any covenant or agreement contained herein or any
indebtedness secured hereby.
2.07 Additional Rights and Remedies. Beneficiary shall have, in addition
------------------------------
to all other rights and remedies provided herein and at law or in equity, the
rights and remedies afforded by Arizona Revised Statutes, Section 33-702. In
the event Trustor fails or refuses to surrender possession of the Premises after
any sale thereof, Trustor shall be deemed a tenant at sufferance, subject to
eviction by means of forcible entry and detainer proceedings, provided that this
remedy is not exclusive or in derogation of any other right or remedy available
to Beneficiary.
2.08 Non-Election of Remedies or Security. All of the remedies provided
------------------------------------
for in this Deed of Trust or otherwise available to Beneficiary, and the
election as to the use of any one such remedy, shall not be effective to exclude
any other. The taking or acceptance of this Deed of Trust by Beneficiary shall
in no event be considered as a waiver of, or in any way affecting or impairing
any other security which Beneficiary may have, or acquire simultaneously
herewith, or hereafter acquire for the payment of the indebtedness hereby
secured, nor shall the taking at any time by Beneficiary of any such additional
security be construed as a waiver of, or in any way affecting or impairing, the
security of this Deed of Trust, and Beneficiary may resort, for the payment of
the indebtedness secured hereby, to its several securities therefor in such
order and manner as it may think fit.
ARTICLE THREE
General Provisions
------------------
3.01 Acceptance of Trust, Notice of Indemnification. Trustee accepts this
----------------------------------------------
trust when this Deed of Trust, duly executed and acknowledged, becomes a public
record as provided by law. Trustee is not obligated to notify any party hereto
of pending sale under any other deed of trust or of any action or proceeding in
which Trustor, Beneficiary or Trustee shall be a party unless Trustee brings
such action. Trustee shall not be obligated to perform any act required of it
hereunder unless the performance of such act is requested in writing and Trustee
is reasonably indemnified against loss, cost, liability and expense.
3.02 Powers of Trustee. From time to time upon written request of
-----------------
Beneficiary and presentation of this Deed of Trust for endorsement, and without
affecting the personal liability of any person for payment of any indebtedness
or performance of the obligations secured hereby, Trustee may, without liability
therefor and without notice; reconvey all or any part of the Premises; consent
to the making of any map or plat thereof; join in granting any easement thereon;
join in any declaration of covenants and restrictions; or join in any extension
agreement or any agreement subordinating the lien or charge hereof. Trustee or
Beneficiary may from time to time apply in any court of competent jurisdiction
for aid and direction in the execution of the trusts hereunder and the
enforcement of the rights and remedies available hereunder, and Trustee or
Beneficiary may obtain orders or decrees directing or confirming or approving
acts in the execution of said trusts and the enforcement of said remedies.
Trustee has no obligation to notify
29
any party of any pending sale or any action or proceeding unless held or
commenced and maintained by Trustee under this Deed of Trust. Trustor shall pay
to Trustee its reasonable and customary charges for preparation of the release
and reconveyance of the Property upon full payment of the Note.
3.03 Indemnification of Trustee and Beneficiary. Trustor indemnifies
------------------------------------------
Trustee and Beneficiary against all losses, claims, demands, and liabilities
which either may incur, suffer or sustain in the execution of the trusts created
hereunder or in the performance of any act required or permitted hereunder or as
required under the laws of the State of Arizona.
3.04 Substitution of Trustee. From time to time, by a writing signed and
-----------------------
acknowledged by Beneficiary and filed for record in the office of the Recorder
of the County in which the Premises are situated, Beneficiary may appoint
another trustee to act in the place and stead of Trustee or any successor. Such
writing shall refer to this Deed of Trust and set forth the date, book and page
of its recordation. The recordation of such instrument of substitution shall
discharge Trustee herein named and shall appoint the new trustee as the trustee
hereunder with the same effect as if originally named Trustee herein. A writing
recorded pursuant to the provisions of this paragraph shall be conclusive proof
of the proper substitution of such new trustee. The Trustee may act hereunder
and may sell and convey the property as herein provided, although the Trustee
has been, may now be or may hereafter be, attorneys or agents of Beneficiary or
of any other Beneficiary, in respect of any manner or business whatsoever.
3.05 Rules of Construction. When the identity of the parties hereto or
---------------------
other circumstances make it appropriate, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural. The
headings of each paragraph are for information and convenience only and do not
limit or construe the contents of any provisions hereof.
3.06 Severability. If any terms of this Deed of Trust, or the application
------------
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Deed of Trust, or the application of such
term to persons or circumstances other than those as to which it is invalid or
unenforceable shall not be affected thereby and each term of this Deed of Trust
shall be valid and enforceable to the fullest extent permitted by law.
3.07 Successors in Interest. Subject to the limitations set forth in
----------------------
paragraph 1.15, this Deed of Trust applies to, inures to the benefit of, and is
binding not only on the parties hereto, but on their heirs, executors,
administrators, personal representatives, successors and assigns. All
obligations of Trustor hereunder are joint and several. The term "Beneficiary"
shall mean the holder and owner, including pledgees, of the Note secured hereby,
whether or not named as Beneficiary herein.
3.08 Notices. Every provision for notice, demand or request required in
-------
this Deed of Trust or by applicable law shall be deemed fulfilled by written
notice, demand or request personally served on (or mailed or sent by a
nationwide commercial courier (e.g., Federal
30
Express, UPS) to, as hereinafter provided) the party entitled thereto or on its
successors or assigns. If mailed, such notice, demand or request shall be made
by certified or registered mail, and deposited in any post office station or
letter-box, enclosed in a postage prepaid envelope addressed to such party at
its address set forth below, or to such other address as either party hereto
shall direct by like written notice and shall be deemed to have been made on the
second day following posting as aforesaid. If personally served or commercially
sent, the party giving such notice shall be deemed to have given such notice on
the day that personal service is made or delivery is made by the national
courier to the party being noticed occurs. For the purposes herein, notices
shall be sent to Trustor and Beneficiary as follows:
TRUSTOR: MATRIX BANCORP, INC.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
TRUSTEE: XXXXXX X. XXXXXXXXXX, XX.
0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
BENEFICIARY: THE OHIO NATIONAL LIFE INSURANCE COMPANY
Xxx Xxxxxxxxx Xxx
Xxxxxxxxxx, Xxxx 00000
Attention: Mortgages & Real Estate
3.09 Modifications. This Deed of Trust may not be amended, modified or
-------------
changed, nor shall any waiver of any provision hereof be effective, except only
by an instrument in writing and signed by the party against whom enforcement of
any waiver, amendment, change, modification or discharge is sought.
3.10 Governing Law. This Deed of Trust shall be construed according to
-------------
and governed by the laws of the State of Arizona.
3.11 Statute of Limitations. The right to plead any and all statutes of
----------------------
limitations as a defense to any obligation secured by this Deed of Trust is
hereby waived.
3.12 Joint and Several. The liability of each person or party signing
-----------------
this Deed of Trust as Trustor shall be joint and several.
3.13 Offset. No offset or claim that Trustor now or may in the future
------
have against Beneficiary shall relieve Trustor from paying installments or
performing any other obligation herein or secured hereby.
31
3.14 Trustor Requests. The undersigned Trustor requests that a copy of
----------------
any notice of sale hereunder be mailed to it at the address specified in this
Deed of Trust or to such other address as Trustor may, from time to time,
designate in writing.
3.15 Conflicting Provisions. If the terms of this Deed of Trust are in
----------------------
conflict with any term contained in the Note or in any other instrument related
to this transaction, the terms of this Deed of Trust shall prevail.
3.16 Non-disturbance and Attornment. Beneficiary will, upon request of
------------------------------
Trustor, execute non-disturbance and attornment agreements with lessees of the
Premises in a form reasonably acceptable to Beneficiary.
3.17 Acknowledgment of Due Process; Waiver. Trustor hereby waives the
-------------------------------------
following rights it may have:
(a) The right to have a jury trial in connection with any litigation
arising hereunder or under the Note or any of the other Security Documents;
(b) In connection with a foreclosure hereunder, whether by judicial
or non-judicial means, the rights of appraisement and redemption; and
(c) The right to a judicial hearing in connection with the exercise
of any right or remedy provided by this Deed of Trust.
Trustor's waivers under this paragraph have been made voluntarily,
intelligently and knowingly and after Trustor has been apprised and counseled by
its attorneys as to the nature thereof.
3.18 Inspections. Until all obligations of the Trustor are satisfied in
-----------
full, Beneficiary, and its agents, representatives, officers, employees are
authorized to enter at any reasonable time upon or on any part of the Property
for the purpose of inspecting the same and for the purpose of performing any of
the acts Beneficiary is authorized to perform hereunder or under the terms of
any of the Security Documents.
IN WITNESS WHEREOF, the Trustor has caused this instrument to be signed as
of the date first above written.
TRUSTOR:
MATRIX BANCORP, INC.
32
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Agent
-----------------------------------------
Witness
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this _____ day of
March, 1999, by______________________________________________, the
_____________________________ of MATRIX BANCORP, INC., a Colorado corporation.
_______________________________
Notary Public
My Commission Expires:
____________________
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this _____ day of
March, 1999, by ___________________________________, Witness.
_______________________________
Notary Public
My Commission Expires:
____________________
33
