no Response Notice is tendered, without any resolution of the
Objections) and without any reduction or abatement of the Purchase Price.
4.4.
PERMITTED EXCEPTIONS.
The Deed delivered pursuant to this Contract shall be subject to the
following, all of which shall be deemed "Permitted Exceptions":
4.4.1.
ALL MATTERS SHOWN IN THE TITLE DOCUMENTS AND THE SURVEY, OTHER THAN
(A) THOSE OBJECTIONS, IF ANY, WHICH SELLER HAS AGREED TO CURE PURSUANT TO THE
RESPONSE NOTICE UNDER SECTION 4.3, (B) MECHANICS' LIENS, MONETARY JUDGMENTS
AGAINST SELLER RECORDED PRIOR TO CLOSING, MONETARY JUDGMENTS AGAINST THE
PROPERTY RECORDED PRIOR TO CLOSING AND NOT ARISING BY, THROUGH OR UNDER
PURCHASER, ANY MORTGAGE OR DEED OF TRUST GRANTED BY SELLER THAT ENCUMBERS THE
PROPERTY BUT EXCLUDING THE ASSUMED ENCUMBRANCES, AND LIENS FOR TAXES DUE AND
PAYABLE WITH RESPECT TO THE PERIOD PRECEDING CLOSING, (C) THE STANDARD EXCEPTION
REGARDING THE RIGHTS OF PARTIES IN POSSESSION, WHICH SHALL BE MODIFIED TO BE
LIMITED TO THOSE PARTIES IN POSSESSION PURSUANT TO THE LEASES, AND (D) THE
STANDARD EXCEPTION PERTAINING TO TAXES AND ASSESSMENTS, WHICH SHALL BE LIMITED
TO TAXES AND ASSESSMENTS NOT YET DUE AND PAYABLE AS OF THE CLOSING DATE;
4.4.2.
ALL LEASES;
4.4.3.
THE ASSUMED ENCUMBRANCES;
4.4.4.
APPLICABLE ZONING AND GOVERNMENTAL REGULATIONS AND ORDINANCES; AND
4.4.5.
ANY DEFECTS IN OR OBJECTIONS TO TITLE TO THE PROPERTY, OR TITLE
EXCEPTIONS OR ENCUMBRANCES, ARISING BY, THROUGH OR UNDER PURCHASER.
4.5.
ASSUMED ENCUMBRANCES.
4.5.1.
PURCHASER RECOGNIZES AND AGREES THAT, IN CONNECTION WITH A LOAN (THE
"LOAN") MADE TO SELLER BY FEDERAL HOME LOAN MORTGAGE CORPORATION (AS ASSIGNEE OF
CAPMARK FINANCE INC. (THE "LENDER"), THE PROPERTY PRESENTLY IS ENCUMBERED BY A
DEED OF TRUST DATED JULY 24, 2006 AND RECORDED JULY 28, 2006 AS INSTRUMENT
NUMBER 2006-1008352 OF THE OFFICIAL RECORDS OF MARICOPA COUNTY, ARIZONA, AND A
DEED OF TRUST DATED MARCH 31, 2008 AND RECORDED APRIL 01, 2008 AS INSTRUMENT
NUMBER 2008-286048 OF THE OFFICIAL RECORDS OF MARICOPA COUNTY, ARIZONA
(COLLECTIVELY, THE "ASSUMED DEED OF TRUST") AND CERTAIN OTHER SECURITY AND
RELATED DOCUMENTS IN CONNECTION WITH THE LOAN (COLLECTIVELY, THE "ASSUMED
ENCUMBRANCES").
THE LOAN IS EVIDENCED BY THAT CERTAIN PROMISSORY NOTE DATED AS
OF JULY 26, 2006 IN THE STATED PRINCIPAL AMOUNT OF $14,400,000.00 AND THAT
CERTAIN PROMISSORY NOTE DATED AS OF MARCH 31, 2008 IN THE STATED PRINCIPAL
AMOUNT OF $5,770,000.00 (COLLECTIVELY, THE "NOTE," AND TOGETHER WITH THE ASSUMED
DEED OF TRUST, THE ASSUMED ENCUMBRANCES AND ANY OTHER DOCUMENTS EXECUTED BY
SELLER IN CONNECTION WITH THE LOAN, THE "ASSUMED LOAN DOCUMENTS"), EXECUTED BY
SELLER AND PAYABLE TO THE ORDER OF THE LENDER.
WITHIN 3 BUSINESS DAYS AFTER THE
EFFECTIVE DATE, SELLER AGREES THAT IT WILL MAKE AVAILABLE TO PURCHASER (IN THE
SAME MANNER IN WHICH SELLER IS PERMITTED TO MAKE THE MATERIALS AVAILABLE TO
PURCHASER UNDER SECTION 3.5.1) COPIES OF THE ASSUMED LOAN DOCUMENTS WHICH ARE IN
SELLER'S POSSESSION OR REASONABLE CONTROL (SUBJECT TO SECTION 3.5.2).
4.5.2.
PURCHASER AGREES THAT, AT THE CLOSING AND SUBJECT TO LENDER'S
APPROVAL, (A) PURCHASER SHALL ASSUME SELLER'S OBLIGATIONS UNDER THE NOTE AND ALL