UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) June 25, 2003
CENTURY PROPERTIES FUND XIX
(Exact name of registrant as specified in its charter)
California 0-11935 94-2887133
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(864) 239-1000
(Registrant's telephone number)
Item 5. Other Events
On June 25, 2003, the Registrant refinanced the mortgage encumbering Vinings
Peak Apartments. The refinancing replaced the existing mortgage in the current
principal balance of approximately $7,785,000 with a new mortgage in the
principal amount of approximately $8,470,000. The new mortgage has an interest
rate of 4.41% per annum compared to 7.50% per annum on the existing mortgage.
After repayment of the existing mortgage and payment of closing costs the
Registrant received net proceeds of approximately $96,000.
On June 25, 2003, the Registrant refinanced the mortgage encumbering Wood Lake
Apartments. The refinancing replaced the existing mortgage in the current
principal balance of approximately $6,703,000 with a new mortgage in the
principal amount of approximately $7,500,000. The new mortgage has an interest
rate of 4.41% per annum compared to 7.50% per annum on the existing mortgage.
After repayment of the existing mortgage and payment of closing costs the
Registrant received net proceeds of approximately $868,000.
On June 25, 2003, the Registrant refinanced the mortgage encumbering Plantation
Crossing Apartments. The refinancing replaced the existing mortgage in the
current principal balance of approximately $4,541,000 with a new mortgage in the
principal amount of approximately $4,480,000. The new mortgage has an interest
rate of 4.41% per annum compared to 7.50% per annum on the existing mortgage.
After repayment of the existing mortgage and payment of closing costs the
Registrant had a shortfall of approximately $821,000 which was covered by the
net proceeds received from the Wood Lake refinancing discussed above.
The Registrant's general partner is evaluating the cash requirements of the
Registrant but does not anticipate a distribution of net proceeds in the near
future.
Item 7. Financial Statements and Exhibits
(c) Exhibits.
The following exhibits are filed with this report (1):
10.13 Multifamily Note for $4,480,000 dated June 25, 2003 between Century
Properties Fund XIX and KeyCorp Real Estate Capital Markets, Inc.
10.14 Replacement Reserve Agreement dated June 25, 2003 between Century
Properties Fund XIX and KeyCorp Real Estate Capital Markets, Inc.
10.15 Repair Escrow Agreement dated June 25, 2003 between Century
Properties Fund XIX and KeyCorp Real Estate Capital Markets, Inc.
10.16 Multifamily Note for $8,470,000 dated June 25, 2003 between Century
Properties Fund XIX and KeyCorp Real Estate Capital Markets, Inc.
10.17 Replacement Reserve Agreement dated June 25, 2003 between Century
Properties Fund XIX and KeyCorp Real Estate Capital Markets, Inc.
10.18 Repair Escrow Agreement dated June 25, 2003 between Century
Properties Fund XIX and KeyCorp Real Estate Capital Markets, Inc.
10.19 Multifamily Note for $7,500,000 dated June 25, 2003 between Century
Properties Fund XIX and KeyCorp Real Estate Capital Markets, Inc.
10.20 Replacement Reserve Agreement dated June 25, 2003 between Century
Properties Fund XIX and KeyCorp Real Estate Capital Markets, Inc.
10.21 Repair Escrow Agreement dated June 25, 2003 between Century
Properties Fund XIX and KeyCorp Real Estate Capital Markets, Inc.
(1) Schedules and supplemental materials to the exhibits have been omitted but
will be provided to the Securities and Exchange Commission upon request.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CENTURY PROPERTIES FUND XIX
By: Fox Partners II
General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: July 10, 2003
Exhibit 10.13
Freddie Mac Loan No.002703521
MULTIFAMILY NOTE
(MULTISTATE - REVISION DATE 11-01-2000)
US $4,480,000.00 as of June 25, 2003
FOR VALUE RECEIVED, the undersigned ("Borrower") jointly and severally (if
more than one) promises to pay to the order of KEYCORP REAL ESTATE CAPITAL
MARKETS, INC., an Ohio corporation, the principal sum of Four Million Four
Hundred Eighty Thousand and No/100ths Dollars (US $4,480,000.00), with interest
on the unpaid principal balance at the annual rate of four and forty-one
one-hundredths percent (4.41%).
1. Defined Terms. As used in this Note, (i) the term "Lender" means the
holder of this Note, and (ii) the term "Indebtedness" means the principal of,
interest on, and any other amounts due at any time under, this Note, the
Security Instrument or any other Loan Document, including prepayment premiums,
late charges, default interest, and advances to protect the security of the
Security Instrument under Section 12 of the Security Instrument. "Event of
Default" and other capitalized terms used but not defined in this Note shall
have the meanings given to such terms in the Security Instrument.
2. Address for Payment. All payments due under this Note shall be payable
at Key Commercial Mortgage, PO Box 145404, Cincinnati, OH 45250, or such other
place as may be designated by written notice to Borrower from or on behalf of
Lender.
3. Payment of Principal and Interest. Principal and interest shall be paid
as follows:
(a) Unless disbursement of principal is made by Lender to Borrower on the
first day of the month, interest for the period beginning on the date of
disbursement and ending on and including the last day of the month in which such
disbursement is made shall be payable simultaneously with the execution of this
Note. Interest under this Note shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
(b) Consecutive monthly installments of principal and interest, each in
the amount of Twenty-Eight Thousand One Hundred Twenty-Five and 51/100ths
Dollars (US $28,125.51), shall be payable on the first day of each month
beginning on August 1, 2003, until the entire unpaid principal balance evidenced
by this Note is fully paid.
(c) Any accrued interest remaining past due for 30 days or more may, at
Lender's discretion, be added to and become part of the unpaid principal balance
and shall bear interest at the rate or rates specified in this Note, and any
reference below to "accrued interest" shall refer to accrued interest which has
not become part of the unpaid principal balance. Any remaining principal and
interest shall be due and payable on July 1, 2013 or on any earlier date on
which the unpaid principal balance of this Note becomes due and payable, by
acceleration or otherwise (the "Maturity Date"). The unpaid principal balance
shall continue to bear interest after the Maturity Date at the Default Rate set
forth in this Note until and including the date on which it is paid in full.
(d) Any regularly scheduled monthly installment of principal and interest
that is received by Lender before the date it is due shall be deemed to have
been received on the due date solely for the purpose of calculating interest
due.
4. Application of Payments. If at any time Lender receives, from Borrower
or otherwise, any amount applicable to the Indebtedness which is less than all
amounts due and payable at such time, Lender may apply that payment to amounts
then due and payable in any manner and in any order determined by Lender, in
Lender's discretion. Borrower agrees that neither Lender's acceptance of a
payment from Borrower in an amount that is less than all amounts then due and
payable nor Lender's application of such payment shall constitute or be deemed
to constitute either a waiver of the unpaid amounts or an accord and
satisfaction.
5. Security. The Indebtedness is secured, among other things, by a
multifamily mortgage, deed to secure debt or deed of trust dated as of the date
of this Note (the "Security Instrument"), and reference is made to the Security
Instrument for other rights of Lender as to collateral for the Indebtedness.
6. Acceleration. If an Event of Default has occurred and is continuing,
the entire unpaid principal balance, any accrued interest, the prepayment
premium payable under Paragraph 10, if any, and all other amounts payable under
this Note and any other Loan Document shall at once become due and payable, at
the option of Lender, without any prior notice to Borrower (except if notice is
required by applicable law, then after such notice). Lender may exercise this
option to accelerate regardless of any prior forbearance.
7. Late Charge. If any monthly amount payable under this Note or under the
Security Instrument or any other Loan Document is not received by Lender within
ten (10) days after the amount is due (unless applicable law requires a longer
period of time before a late charge may be imposed, in which event such longer
period shall be substituted), Borrower shall pay to Lender, immediately and
without demand by Lender, a late charge equal to five percent (5%) of such
amount (unless applicable law requires a lesser amount be charged, in which
event such lesser amount shall be substituted). Borrower acknowledges that its
failure to make timely payments will cause Lender to incur additional expenses
in servicing and processing the loan evidenced by this Note (the "Loan"), and
that it is extremely difficult and impractical to determine those additional
expenses. Borrower agrees that the late charge payable pursuant to this
Paragraph represents a fair and reasonable estimate, taking into account all
circumstances existing on the date of this Note, of the additional expenses
Lender will incur by reason of such late payment. The late charge is payable in
addition to, and not in lieu of, any interest payable at the Default Rate
pursuant to Paragraph 8.
8. Default Rate. So long as (a) any monthly installment under this Note
remains past due for thirty (30) days or more, or (b) any other Event of Default
has occurred and is continuing, interest under this Note shall accrue on the
unpaid principal balance from the earlier of the due date of the first unpaid
monthly installment or the occurrence of such other Event of Default, as
applicable, at a rate (the "Default Rate") equal to the lesser of four (4)
percentage points above the rate stated in the first paragraph of this Note and
the maximum interest rate which may be collected from Borrower under applicable
law. If the unpaid principal balance and all accrued interest are not paid in
full on the Maturity Date, the unpaid principal balance and all accrued interest
shall bear interest from the Maturity Date at the Default Rate. Borrower also
acknowledges that its failure to make timely payments will cause Lender to incur
additional expenses in servicing and processing the Loan, that, during the time
that any monthly installment under this Note is delinquent for more than thirty
(30) days, Lender will incur additional costs and expenses arising from its loss
of the use of the money due and from the adverse impact on Lender's ability to
meet its other obligations and to take advantage of other investment
opportunities, and that it is extremely difficult and impractical to determine
those additional costs and expenses. Borrower also acknowledges that, during the
time that any monthly installment under this Note is delinquent for more than
thirty (30) days or any other Event of Default has occurred and is continuing,
Lender's risk of nonpayment of this Note will be materially increased and Lender
is entitled to be compensated for such increased risk. Borrower agrees that the
increase in the rate of interest payable under this Note to the Default Rate
represents a fair and reasonable estimate, taking into account all circumstances
existing on the date of this Note, of the additional costs and expenses Lender
will incur by reason of the Borrower's delinquent payment and the additional
compensation Lender is entitled to receive for the increased risks of nonpayment
associated with a delinquent loan.
9. Limits on Personal Liability.
(a) Except as otherwise provided in this Paragraph 9, Borrower shall have
no personal liability under this Note, the Security Instrument or any other Loan
Document for the repayment of the Indebtedness or for the performance of any
other obligations of Borrower under the Loan Documents, and Lender's only
recourse for the satisfaction of the Indebtedness and the performance of such
obligations shall be Lender's exercise of its rights and remedies with respect
to the Mortgaged Property and any other collateral held by Lender as security
for the Indebtedness. This limitation on Borrower's liability shall not limit or
impair Lender's enforcement of its rights against any guarantor of the
Indebtedness or any guarantor of any obligations of Borrower.
(b) Borrower shall be personally liable to Lender for the repayment of a
portion of the Indebtedness equal to zero percent (0%) of the original principal
balance of this Note, plus any other amounts for which Borrower has personal
liability under this Paragraph 9.
(c) In addition to Borrower's personal liability under Paragraph 9(b),
Borrower shall be personally liable to Lender for the repayment of a further
portion of the Indebtedness equal to any loss or damage suffered by Lender as a
result of (1) failure of Borrower to pay to Lender upon demand after an Event of
Default all Rents to which Lender is entitled under Section 3(a) of the Security
Instrument and the amount of all security deposits collected by Borrower from
tenants then in residence; (2) failure of Borrower to apply all insurance
proceeds and condemnation proceeds as required by the Security Instrument; or
(3) failure of Borrower to comply with Section 14(d) or (e) of the Security
Instrument relating to the delivery of books and records, statements, schedules
and reports.
(d) For purposes of determining Borrower's personal liability under
Paragraph 9(b) and Paragraph 9(c), all payments made by Borrower or any
guarantor of this Note with respect to the Indebtedness and all amounts received
by Lender from the enforcement of its rights under the Security Instrument shall
be applied first to the portion of the Indebtedness for which Borrower has no
personal liability.
(e) Borrower shall become personally liable to Lender for the repayment of
all of the Indebtedness upon the occurrence of any of the following Events of
Default: (1) Borrower's acquisition of any property or operation of any business
not permitted by Section 33 of the Security Instrument; (2) a Transfer
(including, but not limited to, a lien or encumbrance) that is an Event of
Default under Section 21 of the Security Instrument, other than a Transfer
consisting solely of the involuntary removal or involuntary withdrawal of a
general partner in a limited partnership or a manager in a limited liability
company; or (3) fraud or written material misrepresentation by Borrower or any
officer, director, partner, member or employee of Borrower in connection with
the application for or creation of the Indebtedness or any request for any
action or consent by Lender.
(f) In addition to any personal liability for the Indebtedness, Borrower
shall be personally liable to Lender for (1) the performance of all of
Borrower's obligations under Section 18 of the Security Instrument (relating to
environmental matters); (2) the costs of any audit under Section 14(d) of the
Security Instrument; and (3) any costs and expenses incurred by Lender in
connection with the collection of any amount for which Borrower is personally
liable under this Paragraph 9, including fees and out of pocket expenses of
attorneys and expert witnesses and the costs of conducting any independent audit
of Borrower's books and records to determine the amount for which Borrower has
personal liability.
(g) To the extent that Borrower has personal liability under this
Paragraph 9, Lender may exercise its rights against Borrower personally without
regard to whether Lender has exercised any rights against the Mortgaged Property
or any other security, or pursued any rights against any guarantor, or pursued
any other rights available to Lender under this Note, the Security Instrument,
any other Loan Document or applicable law. For purposes of this Paragraph 9, the
term "Mortgaged Property" shall not include any funds that (1) have been applied
by Borrower as required or permitted by the Security Instrument prior to the
occurrence of an Event of Default or (2) Borrower was unable to apply as
required or permitted by the Security Instrument because of a bankruptcy,
receivership, or similar judicial proceeding. To the fullest extent permitted by
applicable law, in any action to enforce Borrower's personal liability under
this Paragraph 9, Borrower waives any right to set off the value of the
Mortgaged Property against such personal liability.
10. Voluntary and Involuntary Prepayments.
(a) A prepayment premium shall be payable in connection with any
prepayment (any receipt by Lender of principal, other than principal required to
be paid in monthly installments pursuant to Paragraph 3(b), prior to the
scheduled Maturity Date set forth in Paragraph 3(c) under this Note as provided
below:
(1) Borrower may voluntarily prepay all of the unpaid principal
balance of this Note on a Business Day designated as the date for such
prepayment in a written notice from Borrower to Lender given at least 30 days
prior to the date of such prepayment. Such prepayment shall be made by paying
(A) the amount of principal being prepaid, (B) all accrued interest, (C) all
other sums due Lender at the time of such prepayment, and (D) the prepayment
premium calculated pursuant to Paragraph 10(c). For all purposes including the
accrual of interest, any prepayment received by Lender on any day other than the
last calendar day of the month shall be deemed to have been received on the last
calendar day of such month. For purposes of this Note, a "Business Day" means
any day other than a Saturday, Sunday or any other day on which Lender is not
open for business. Unless expressly provided for in the Loan Documents, Borrower
shall not have the option to voluntarily prepay less than all of the unpaid
principal balance. However, if a partial prepayment is provided for in the Loan
Documents or is accepted by Lender in Lender's discretion, a prepayment premium
calculated pursuant to Paragraph 10(c) shall be due and payable by Borrower.
(2) Upon Lender's exercise of any right of acceleration under this
Note, Borrower shall pay to Lender, in addition to the entire unpaid principal
balance of this Note outstanding at the time of the acceleration, (A) all
accrued interest and all other sums due Lender, and (B) the prepayment premium
calculated pursuant to Paragraph 10(c).
(3) Any application by Lender of any collateral or other security to
the repayment of any portion of the unpaid principal balance of this Note prior
to the Maturity Date and in the absence of acceleration shall be deemed to be a
partial prepayment by Borrower, requiring the payment to Lender by Borrower of a
prepayment premium.
(b) Notwithstanding the provisions of Paragraph 10(a), no prepayment
premium shall be payable with respect to (A) any prepayment made during the
period from zero (0) days before the scheduled Maturity Date to the scheduled
Maturity Date, or (B) any prepayment occurring as a result of the application of
any insurance proceeds or condemnation award under the Security Instrument.
(c) Any prepayment premium payable under this Note shall be computed as
follows:
(1) If the prepayment is made between the date of this Note and the
date that is 120 months after the first day of the first calendar month
following the date of this Note (the "Yield Maintenance Period"), the prepayment
premium shall be whichever is the greater of subparagraphs (i) and (ii) below:
(i) 1.0% of the unpaid principal balance of this Note; or
(ii) the product obtained by multiplying:
(A) the amount of principal being prepaid, by (B) the excess
(if any) of the Monthly Note Rate over the
Assumed
Reinvestment Rate,
by
(C) the Present Value Factor.
For purposes of subparagraph (ii), the following definitions shall
apply:
Monthly Note Rate: one-twelfth (1/12) of the annual interest rate
of this Note, expressed as a decimal calculated to five digits.
Prepayment Date: in the case of a voluntary prepayment, the date on
which the prepayment is made; in the case of the application by
Lender of collateral or security to a portion of the principal
balance, the date of such application; and in any other case, the
date on which Lender accelerates the unpaid principal balance of
this Note.
Assumed Reinvestment Rate: one-twelfth (1/12) of the yield rate as
of the date 5 Business Days before the Prepayment Date, on the
3.625% U.S. Treasury Security due May 1, 2013, as reported in The
Wall Street Journal, expressed as a decimal calculated to five
digits. In the event that no yield is published on the applicable
date for the Treasury Security used to determine the Assumed
Reinvestment Rate, Lender, in its discretion, shall select the
non-callable Treasury Security maturing in the same year as the
Treasury Security specified above with the lowest yield published in
The Wall Street Journal as of the applicable date. If the
publication of such yield rates in The Wall Street Journal is
discontinued for any reason, Lender shall select a security with a
comparable rate and term to the Treasury Security used to determine
the Assumed Reinvestment Rate. The selection of an alternate
security pursuant to this Paragraph shall be made in Lender's
discretion.
Present Value Factor: the factor that discounts to present value the
costs resulting to Lender from the difference in interest rates
during the months remaining in the Yield Maintenance Period, using
the Assumed Reinvestment Rate as the discount rate, with monthly
compounding, expressed numerically as follows:
[OBJECT OMITTED]
n = number of months remaining in Yield Maintenance Period
ARR = Assumed Reinvestment Rate
(2) If the prepayment is made after the expiration of the Yield
Maintenance Period but before the period set forth in Paragraph 10(b)(A) above,
the prepayment premium shall be 1.0% of the unpaid principal balance of this
Note.
(d) Any permitted or required prepayment of less than the unpaid principal
balance of this Note shall not extend or postpone the due date of any subsequent
monthly installments or change the amount of such installments, unless Lender
agrees otherwise in writing.
(e) Borrower recognizes that any prepayment of the unpaid principal
balance of this Note, whether voluntary or involuntary or resulting from a
default by Borrower, will result in Lender's incurring loss, including
reinvestment loss, additional expense and frustration or impairment of Lender's
ability to meet its commitments to third parties. Borrower agrees to pay to
Lender upon demand damages for the detriment caused by any prepayment, and
agrees that it is extremely difficult and impractical to ascertain the extent of
such damages. Borrower therefore acknowledges and agrees that the formula for
calculating prepayment premiums set forth in this Note represents a reasonable
estimate of the damages Lender will incur because of a prepayment.
(f) Borrower further acknowledges that the prepayment premium provisions
of this Note are a material part of the consideration for the Loan, and
acknowledges that the terms of this Note are in other respects more favorable to
Borrower as a result of the Borrower's voluntary agreement to the prepayment
premium provisions.
11. Costs and Expenses. To the fullest extent allowed by applicable law,
Borrower shall pay all expenses and costs, including fees and out-of-pocket
expenses of attorneys (including Lender's in-house attorneys) and expert
witnesses and costs of investigation, incurred by Lender as a result of any
default under this Note or in connection with efforts to collect any amount due
under this Note, or to enforce the provisions of any of the other Loan
Documents, including those incurred in post-judgment collection efforts and in
any bankruptcy proceeding (including any action for relief from the automatic
stay of any bankruptcy proceeding) or judicial or non-judicial foreclosure
proceeding.
12. Forbearance. Any forbearance by Lender in exercising any right or
remedy under this Note, the Security Instrument, or any other Loan Document or
otherwise afforded by applicable law, shall not be a waiver of or preclude the
exercise of that or any other right or remedy. The acceptance by Lender of any
payment after the due date of such payment, or in an amount which is less than
the required payment, shall not be a waiver of Lender's right to require prompt
payment when due of all other payments or to exercise any right or remedy with
respect to any failure to make prompt payment. Enforcement by Lender of any
security for Borrower's obligations under this Note shall not constitute an
election by Lender of remedies so as to preclude the exercise of any other right
or remedy available to Lender.
13. Waivers. Presentment, demand, notice of dishonor, protest, notice of
acceleration, notice of intent to demand or accelerate payment or maturity,
presentment for payment, notice of nonpayment, grace, and diligence in
collecting the Indebtedness are waived by Borrower and all endorsers and
guarantors of this Note and all other third party obligors.
14. Loan Charges. Neither this Note nor any of the other Loan Documents
shall be construed to create a contract for the use, forbearance or detention of
money requiring payment of interest at a rate greater than the maximum interest
rate permitted to be charged under applicable law. If any applicable law
limiting the amount of interest or other charges permitted to be collected from
Borrower in connection with the Loan is interpreted so that any interest or
other charge provided for in any Loan Document, whether considered separately or
together with other charges provided for in any other Loan Document, violates
that law, and Borrower is entitled to the benefit of that law, that interest or
charge is hereby reduced to the extent necessary to eliminate that violation.
The amounts, if any, previously paid to Lender in excess of the permitted
amounts shall be applied by Lender to reduce the unpaid principal balance of
this Note. For the purpose of determining whether any applicable law limiting
the amount of interest or other charges permitted to be collected from Borrower
has been violated, all Indebtedness that constitutes interest, as well as all
other charges made in connection with the Indebtedness that constitute interest,
shall be deemed to be allocated and spread ratably over the stated term of the
Note. Unless otherwise required by applicable law, such allocation and spreading
shall be effected in such a manner that the rate of interest so computed is
uniform throughout the stated term of the Note.
15. Commercial Purpose. Borrower represents that the Indebtedness is being
incurred by Borrower solely for the purpose of carrying on a business or
commercial enterprise, and not for personal, family, household, or agricultural
purposes.
16. Counting of Days. Except where otherwise specifically provided, any
reference in this Note to a period of "days" means calendar days, not Business
Days.
17. Governing Law. This Note shall be governed by the law of the
jurisdiction in which the Land is located.
18. Captions. The captions of the paragraphs of this Note are for
convenience only and shall be disregarded in construing this Note.
19. Notices; Written Modifications. All notices, demands and other
communications required or permitted to be given by Lender to Borrower pursuant
to this Note shall be given in accordance with Section 31 of the Security
Instrument. Any modification or amendment to this Note shall be ineffective
unless in writing signed by the party sought to be charged with such
modification or amendment; provided, however, that in the event of a Transfer
under the terms of the Security Instrument, any or some or all of the
Modifications to Multifamily Note may be modified or rendered void by Lender at
Lender's option by notice to Borrower/transferee.
20. Consent to Jurisdiction and Venue. Borrower agrees that any
controversy arising under or in relation to this Note shall be litigated
exclusively in the jurisdiction in which the Land is located (the "Property
Jurisdiction"). The state and federal courts and authorities with jurisdiction
in the Property Jurisdiction shall have exclusive jurisdiction over all
controversies which shall arise under or in relation to this Note. Borrower
irrevocably consents to service, jurisdiction, and venue of such courts for any
such litigation and waives any other venue to which it might be entitled by
virtue of domicile, habitual residence or otherwise.
21. WAIVER OF TRIAL BY JURY. BORROWER AND LENDER EACH (A) AGREES NOT TO
ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS NOTE OR THE
RELATIONSHIP BETWEEN THE PARTIES AS LENDER AND BORROWER THAT IS TRIABLE OF RIGHT
BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE
TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND
VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
ATTACHED EXHIBIT. The following Exhibit is attached to this Note:
|X| Exhibit A Modifications to Multifamily Note
IN WITNESS WHEREOF, Borrower has signed and delivered this Note under seal
or has caused this Note to be signed and delivered under seal by its duly
authorized representative. Borrower intends that this Note shall be deemed to be
signed and delivered as a sealed instrument.
CENTURY PROPERTIES FUND XIX
a California limited partnership
By: Fox Partners II
a California general partnership
General Partner
By: Fox Capital Management Corporation
a California corporation
Managing Partner
By: /s/Patti K. Fielding (Seal)
Patti K. Fielding
Executive Vice President
94-2887133
Borrower's Employer ID Number
Pay to the Order of FEDERAL HOME LOAN MORTGAGE CORPORATION, without recourse.
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
an Ohio corporation
By: /s/Janette M. O'Brien
Janette M. O'Brien
Vice President
Exhibit 10.14
REPLACEMENT RESERVE AGREEMENT
(REVISION DATE 01-31-2003)
(FHLMC Loan No. 002703521)
This REPLACEMENT RESERVE AGREEMENT ("Agreement") is made and entered into,
to be effective as of June 25, 2003, by and between CENTURY PROPERTIES FUND XIX,
a California limited partnership ("Borrower"), and KEYCORP REAL ESTATE CAPITAL
MARKETS, INC., an Ohio corporation ("Lender") and its successors and assigns.
W I T N E S S E T H:
WHEREAS, Lender has agreed to make and Borrower has agreed to accept the
Loan, which is to be evidenced by the Note and secured by the Security
Instrument encumbering the Land and the Improvements. The Land is described on
Exhibit "A" attached to this Agreement; and
WHEREAS, as a condition of making the Loan, Lender is requiring Borrower
to establish the Replacement Reserve Fund for the funding of Capital
Replacements throughout the Loan term.
NOW, THEREFORE, for and in consideration of the Loan, the mutual promises
and covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lender and Borrower
agree as follows:
1. Definitions. The following terms used in this Agreement shall have the
meanings set forth below in this Section 1. Any term used in this
Agreement and not defined shall have the meaning given to that term in the
Security Instrument.
(a) "Capital Replacement" means the replacement of those items listed on
Exhibit "B" of this Agreement and such other replacements of
equipment, major components or capital systems related to the
Improvements as may be approved in writing or required by Lender.
(b) "Disbursement Period" means the interval between disbursements from
the Replacement Reserve Fund, which interval shall be no shorter
than once a quarter.
(c) "Improvements" means the buildings, Personal Property and
improvements situated upon the Land, currently constituting a
multifamily apartment project known as Plantation Crossing
Apartments.
(d) "Initial Deposit" means the amount of Zero Dollars ($0) made as of
the date of this Agreement.
(e) Inspection Fee means a fee for performing any inspection required by
this Agreement in an amount not to exceed Five Hundred and No/100ths
Dollars ($500.00) per inspection.
(f) Investment Fee means a one time fee for establishing the Replacement
Reserve Fund in the amount of Five Hundred and No/100ths Dollars
($500.00).
(g) "Loan" means the loan from Lender to Borrower in the original
principal amount of Four Million Four Hundred Eighty Thousand and
N0/100ths Dollars ($4,480,000.00), as evidenced by the Note and
secured by the Security Instrument.
(h) "Minimum Disbursement Request Amount" means Seven Thousand Five
Hundred and No/100ths Dollars ($7,500.00).
(i) "Monthly Deposit" means the amount of Ten Thousand Three Hundred
Five and No/100thsDollars ($10,305.00) per month to be deposited
into the Replacement Reserve Fund in accordance with this Agreement.
(j) "Property" means the Land and Improvements.
(k) "Replacement Reserve Deposit" means the Initial Deposit, the Monthly
Deposit and/or the Revised Monthly Deposit, as appropriate.
(l) "Replacement Reserve Fund" means the account established pursuant to
this Agreement to defray the costs of Capital Replacements.
(m) "Review Period" means the period ending 120 months after the first
monthly payment date.
(n) "Revised Monthly Deposit" means the amount per month that Lender
determines Borrower must deposit in the Replacement Reserve Fund
during any Subsequent Review Period.
(o) "Security Instrument" means the mortgage, deed of trust, deed to
secure debt, or other similar security instrument encumbering the
Property and securing Borrower's performance of its Loan
obligations.
(p) "Subsequent Review Period" means the period of 12 months commencing
either (i) at the termination of the Review Period or (ii) at the
termination of a prior Subsequent Review Period. There may be more
than one Subsequent Review Period.
2. Replacement Reserve Fund.
(a) Establishment; Funding.
(i) Upon the closing of the Loan, the parties shall establish the
Replacement Reserve Fund and, if required by Lender, Borrower
shall pay the Initial Deposit to Lender for deposit into the
Replacement Reserve Fund.
(ii) Commencing on the date the first installment of principal
and/or interest is due under the Note and continuing on the
same day of each successive month until the end of the Review
Period, Borrower shall pay the Monthly Deposit to Lender for
deposit into the Replacement Reserve Fund, together with its
regular monthly payments of principal and interest as required
by the Note and Security Instrument.
(iii) Prior to the end of the Review Period, Lender will assess the
physical condition of the Property. Lender may adjust the
Monthly Deposit at the termination of the Review Period to
reflect Lender's determination of the condition of the
Property. Upon written notice from Lender or Loan Servicer,
Borrower shall begin paying the Revised Monthly Deposit on the
first monthly payment date of the Subsequent Review Period and
shall continue paying the Revised Monthly Deposit until Lender
further adjusts the Replacement Reserve Deposit during a
Subsequent Review Period, if applicable. If Lender does not
provide Borrower with written notice of a Revised Monthly
Deposit, Borrower shall continue to pay the Monthly Deposit or
the Revised Monthly Deposit then in effect.
(b) Investment of Deposits. Borrower and Lender agree that Lender
shall hold all moneys deposited into the Replacement Reserve Fund
in an interest bearing account, and any interest earned on such
moneys shall be added to the principal balance of the Replacement
Reserve Fund and disbursed in accordance with the provisions of
this Agreement. Borrower acknowledges and agrees that it shall
not have the right to direct Lender as to any specific investment
of moneys in the Replacement Reserve Fund. Lender shall not be
responsible for any losses resulting from investment of moneys in
the Replacement Reserve Fund or for obtaining any specific level
or percentage of earnings on such investment. Lender shall be
entitled to deduct the Investment Fee from the Replacement
Reserve Fund for establishing the Replacement Reserve.
(c) Use. Subject to the pledge and security interest and other rights of
Lender set forth in this Agreement, the Replacement Reserve Fund
shall be maintained for the payment of the costs of the Capital
Replacements identified on Exhibit B.
(d) Deferral of Deposits. Notwithstanding subsections 2(a)
through (c) above, Lender defers its right to require Borrower to
make the Replacement Reserve Deposit. However, at the end of the
Review Period or any Subsequent Review Period, Lender reserves
the right to require that Borrower begin making the Replacement
Reserve Deposit if Lender reasonably determines that the physical
condition of the Property warrants that Borrower begin making
such deposit. Lender's determination to require such deposit
shall not depend on the existence of any of the events set forth
in subsection (e) below.
(e) Reinstatement of Deposits. Notwithstanding subsection 2(d) above,
Lender reserves the right to require at any time, upon written
notice to Borrower, that Borrower begin making the Replacement
Reserve Deposit if Lender reasonably determines that any of the
following events have occurred:
(i) Borrower's default under the Note, Security Instrument, or any
other document delivered in connection with the Loan, or
(ii) the occurrence of a Transfer which is prohibited under the
terms of the Security Instrument or which requires Lender's
consent, or
(iii) Borrower's failure to maintain the Property in a satisfactory
manner and/or in accordance with the requirements of the
Security Instrument.
3. Performance of Capital Replacements; Disbursements.
(a) Requests for Disbursement. Lender shall disburse funds from the
Replacement Reserve Fund, in its sole discretion, as follows: (i)
Borrower's Request. If Borrower determines, at any time or
from time to time, that a Capital Replacement is necessary or
desirable, Borrower shall perform such Capital Replacement and
request from Lender, in writing, reimbursement for such
Capital Replacement. Borrower's request for reimbursement
shall include (A) a detailed description of the Capital
Replacement performed, together with evidence, satisfactory to
Lender, that the cost of such Capital Replacement has been
paid and (B) lien waivers from each contractor and material
supplier supplying labor or materials for such Capital
Replacement, if required by Lender.
(ii) Lender's Request. If Lender shall reasonably determine at any
time or from time to time, that a Capital Replacement is
necessary for the proper maintenance of the Property, it shall
so notify Borrower, in writing, requesting that Borrower
obtain and submit to Lender bids for all labor and materials
required in connection with such Capital Replacement. Borrower
shall submit such bids and a time schedule for completing each
Capital Replacement to Lender within thirty (30) days after
Borrower's receipt of Lender's written notice. Borrower shall
perform such Capital Replacement and request from Lender, in
writing, reimbursement for such Capital Replacement.
Borrower's request for reimbursement shall include (A) a
detailed description of the Capital Replacement performed,
together with evidence, satisfactory to Lender, that the cost
of such Capital Replacement has been paid and (B) lien waivers
from each contractor and material supplier supplying labor or
materials for such Capital Replacement, if required by Lender.
(b) Conditions Precedent. Disbursement from the Replacement Reserve Fund
shall be made no more frequently than once every Disbursement Period
and, except for the final disbursement, no disbursement shall be
made in an amount less than the Minimum Disbursement Request Amount.
Disbursements shall be made only if the following conditions
precedent have been satisfied, as reasonably determined by Lender:
(i) Payment for Capital Replacement. The Capital Replacement
has been performed and/or installed on the Property in a
good and workmanlike manner with suitable materials (or in
the case of a partial disbursement, performed and/or
installed on the Property to an acceptable stage) and paid
for by Borrower as evidenced by copies of all applicable
paid invoices or bills submitted to Lender by Borrower at
the time Borrower requests disbursement from the
Replacement Reserve Fund.
(ii) No Default. There is no condition, event or act that would
constitute a default (with or without notice and/or lapse of
time) under this Agreement or any other Loan Document.
(iii) Representations and Warranties. All representations and
warranties of Borrower set forth in this Agreement and in the
Loan Documents are true in all material respects.
(iv) Continuing Compliance. Borrower is in full compliance with the
provisions of this Agreement, the other Loan Documents and any
request or demand by Lender permitted hereby.
(v) No Lien Claim. No lien or claim based on furnishing labor or
materials has been filed or asserted against the Property,
unless Borrower has properly provided bond or other security
against loss in accordance with applicable law.
(vi) Approvals. All licenses, permits, and approvals of
governmental authorities required for the Capital Replacement
as completed to the applicable stage have been obtained.
(vii) Legal Compliance. The Capital Replacement as completed to the
applicable stage does not violate any laws, ordinance, rules
or regulations, or building lines or restrictions applicable
to the Property.
4. Right to Complete Capital Replacements. If Borrower abandons or fails
to proceed diligently to undertake and/or complete any Capital
Replacement in a timely fashion or is otherwise in default under this
Agreement for 30 days after written notice of such failure by Lender to
Borrower, Lender shall have the right (but not the obligation) to enter
upon the Property and take over and cause the completion of such
Capital Replacement. However, no such notice or grace period shall
apply in the case of such failure which could, in Lender's judgment,
absent immediate exercise by Lender of a right or remedy under this
Agreement, result in harm to Lender or impairment of the security given
under the Security Instrument or any other Loan Document. Any
contracts entered into or indebtedness incurred upon the exercise of
such right may be in the name of Borrower, and Lender is hereby
irrevocably appointed the attorney in fact of Borrower, such
appointment being coupled with an interest, to enter into such
contracts, incur such obligations, enforce any contracts or agreements
made by or on behalf of Borrower (including the prosecution and defense
of all actions and proceedings in connection with the Capital
Replacement and the payment, settlement or compromise of all bills and
claims for materials and work performed in connection with the Capital
Replacement) and do any and all things necessary or proper to complete
any Capital Replacement including signing Borrower's name to any
contracts and documents as may be deemed necessary by Lender. In no
event shall Lender be required to expend its own funds to complete any
Capital Replacement, but Lender may, in its sole discretion, advance
such funds. Any funds advanced shall be added to the outstanding
balance of the Loan, secured by the Security Instrument and payable to
Lender by Borrower in accordance with the provisions of the Security
Instrument pertaining to the protection of Lender's security and
advances made by Lender. Borrower waives any and all claims it may
have against Lender for materials used, work performed or resultant
damage to the Property.
5. Inspection. Lender or any representative of Lender may periodically
inspect any Capital Replacement in process and upon completion during
normal business hours or at any other reasonable time upon reasonable
prior written notice to Borrower (except in an emergency, as determined
by Lender in its discretion or after an Event of Default, in which
event no such prior notice shall be require). Lender shall be entitled
to deduct the Inspection Fee from the Replacement Reserve Fund for
performing any such inspection. If Lender, in its sole discretion,
retains a professional inspection engineer or other qualified third
party to inspect any Capital Replacement, Lender also shall be entitled
to deduct from the Replacement Reserve Fund an amount sufficient to pay
all reasonable fees and expenses charged by such third party inspector.
6. Insufficient Account. If Borrower requests disbursement from the
Replacement Reserve Fund for a Capital Replacement in accordance with this
Agreement in an amount which exceeds the amount on deposit in the
Replacement Reserve Fund, Lender shall disburse to Borrower only the
amount on deposit in the Replacement Reserve Fund. Borrower shall pay all
additional amounts required in connection with any such Capital
Replacement from Borrower's own funds.
7. Security Agreement. To secure Borrower's obligations under this
Agreement and to further secure Borrower's obligations under the Note,
Security Instrument and other Loan Documents, Borrower hereby conveys,
pledges, transfers and grants to Lender a security interest pursuant to
the Uniform Commercial Code of the Property Jurisdiction or any other
applicable law in and to all money in the Replacement Reserve Fund, as
same may increase or decrease from time to time, all interest and
dividends thereon and all proceeds thereof.
8. Post Default. If Borrower defaults in the performance of its
obligations under this Agreement or under the Note, Security Instrument
or any other Loan Document, after the expiration of any applicable
notice or cure period, Lender shall have all remedies available to them
under Article 9 of the Uniform Commercial Code of the Property
Jurisdiction and under any other applicable law. In addition, Lender
may retain all money in the Replacement Reserve Fund, including
interest, and in Lender's discretion, may apply such amounts, without
restriction and without any specific order of priority, to the payment
of any and all indebtedness or obligations of Borrower set forth in the
Note, Security Instrument or any other Loan Document, including, but
not limited to, principal, interest, taxes, insurance, reasonable
attorneys' fees and costs (including those of Lender's in-house
counsel) and disbursements actually incurred and/or repairs to the
Property.
9. Termination. If not sooner terminated by written concurrence of the
parties, this Agreement shall terminate upon the payment in full of the
Loan and all indebtedness incurred in connection therewith and upon such
termination, Lender shall pay to Borrower all funds remaining in the
Replacement Reserve Fund.
10. No Amendment. Nothing contained in this Agreement shall be construed to
amend, modify, alter, change or supersede the terms and provisions of the
Note, Security Instrument or any other Loan Document; and, if there is a
conflict between the terms and provisions of this Agreement and those of
the Note, Security Instrument, or any other Loan Document then the terms
and provisions of the Note, Security Instrument or such other Loan
Document shall control.
11. Release; Indemnity.
(a) Release. Borrower covenants and agrees that, in performing any
of its duties under this Agreement, none of Lender, any Loan
Servicer, or any of their respective agents or employees shall be
liable for any losses, claims, damages, liabilities and expenses
that may be incurred by any of them as a result of such
performance, except that no such party will be released from
liability for any losses, claim, damages, liabilities or expenses
arising out of the willful misconduct or gross negligence of such
party.
(b) Indemnity. Borrower hereby agrees to indemnify and hold harmless
Lender, Loan Servicer and their respective agents and employees
against any and all losses, claims, damages, liabilities and
expenses including, without limitation, reasonable attorneys'
fees and costs (including those of Lender's in-house counsel) and
disbursements, which may be imposed or incurred by any of them in
connection with this Agreement except that no such party will be
indemnified from liability for any losses, claims, damages,
liabilities or expenses arising out of the willful misconduct or
gross negligence of such party.
12. Choice of Law. This Agreement shall be construed and enforced in
accordance with the laws of the Property Jurisdiction.
13. Successors and Assigns. Lender may assign its rights and interests
under this Agreement in whole or in part and upon any such assignment,
all the terms and provisions of this Agreement shall inure to the
benefit of such assignee to the extent so assigned. The terms used to
designate any of the parties herein shall be deemed to include the
heirs, legal representatives, successors and assigns of such parties;
and the term "Lender" shall also include any lawful owner, holder or
pledgee of the Note. Reference herein to "person" or "persons" shall
be deemed to include individuals and entities. Borrower may not assign
or delegate its rights, interests, or obligations under this Agreement
without first obtaining Lender's prior written consent.
14. Attorneys' Fees. In the event that Lender engages the services of an
attorney at law to enforce the provisions of this Agreement against
Borrower, then Borrower shall pay all costs of such enforcement, including
any reasonable attorneys' fees and costs (including those of Lender's
in-house counsel) and disbursements actually incurred.
15. Compliance with Laws; Insurance Requirements.
(a) Compliance with Laws. Borrower shall ensure that all Capital
Replacements comply with all applicable laws, ordinances, rules and
regulations of all governmental authorities having jurisdiction over
the Property and applicable insurance requirements including,
without limitation, applicable building codes, special use permits,
environmental regulations, and requirements of insurance
underwriters.
(b) Insurance Requirements. In addition to any insurance required
under the Loan Documents, Borrower shall provide or cause to be
provided workers' compensation, builder's risk (if required by
Lender), and public liability insurance and other insurance
required under applicable law in connection with any of the
Capital Replacements. All such policies that can be endorsed
with standard mortgage clauses making losses payable to Lender or
its assigns shall be so endorsed. The originals of such policies
shall be deposited with Loan Servicer.
16. Remedies Cumulative. In the event of Borrower's default under this
Agreement, Lender may exercise all or any one or more of its rights and
remedies available under this Agreement, at law or in equity. Such
rights and remedies shall be cumulative and concurrent, and may be
enforced separately, successively or together, and Lender's exercise of
any particular right or remedy shall not in any way prevent Lender from
exercising any other right or remedy available to Lender. Lender may
exercise any such remedies from time to time as often as Lender chooses.
17. Determinations by Lender. Unless otherwise provided in this Agreement,
in any instance where the consent or approval of Lender may be given or
is required, or where any determination, judgment or decision is to be
rendered by Lender under this Agreement, the granting, withholding or
denial of such consent or approval and the rendering of such
determination, judgment or decision shall be made or exercised by
Lender (or its designated representative) at its sole and exclusive
option and in its sole and absolute discretion.
18. Completion of Capital Replacements. Lender's disbursement of moneys
from the Replacement Reserve Fund or other acknowledgment of completion
of any Capital Replacement in a manner satisfactory to Lender shall not
be deemed a certification by Lender that the Capital Replacement has
been completed in accordance with applicable building, zoning or other
codes, ordinances, statutes, laws, regulations or requirements of any
governmental authority or agency. Borrower shall at all times have the
sole responsibility for ensuring that all Capital Replacements are
completed in accordance with all such governmental requirements.
19. No Agency or Partnership. Nothing contained in this Agreement shall
constitute Lender as a joint venturer, partner or agent of Borrower, or
render Lender liable for any debts, obligations, acts, omissions,
representations or contracts of Borrower.
20. Entire Agreement. This Agreement and the other Loan Documents
represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral
agreements. There are no oral agreements between the parties. All
prior or contemporaneous agreements, understandings, representations
and statements, oral or written, are merged into this Agreement and the
other Loan Documents. Neither this Agreement nor any of its provisions
may be waived, modified, amended, discharged or terminated except in
writing signed by the party against which the enforcement of the
waiver, modification, amendment, discharge or termination is sought,
and then only to the extent set forth in writing; provided, however,
that in the event of a Transfer requiring Lender's consent under the
terms of the Security Instrument, one or more or all of the
Modifications to Agreement set forth in Exhibit C (if any) may be
modified or rendered void by Lender at Lender's option by notice to
Borrower/transferee.
21. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original document and all of which
together shall constitute one agreement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
ATTACHED EXHIBITS. The following Exhibits are attached to this
Agreement:
|X | Exhibit A Legal Description of the Land (required)
|X | Exhibit B Capital Replacements (required)
|X | Exhibit C Modifications to Agreement
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first written above.
BORROWER:
CENTURY PROPERTIES FUND XIX
a California limited partnership
By: Fox Partners II
a California general partnership
General Partner
By: Fox Capital Management Corporation
a California corporation
Managing Partner
By: /s/Patti K. Fielding
Patti K. Fielding
Executive Vice President
Taxpayer Identification No.: 94-2887133
LENDER:
KEYCORP REAL ESTATE CAPITAL
MARKETS, INC.
an Ohio corporation
By: /s/Janette M. O'Brien
Janette M. O'Brien
Vice President
Exhibit 10.15
REPAIR ESCROW AGREEMENT
(REVISION DATE 01-31-2003)
(FHLMC Loan No. 002703521)
This REPAIR ESCROW AGREEMENT ("Agreement") is made and entered into, to be
effective as of June 25, 2003, by and between CENTURY PROPERTIES FUND XIX, a
California limited partnership ("Borrower"), and KEYCORP REAL ESTATE CAPITAL
MARKETS, INC., an Ohio corporation ("Lender") and its successors and assigns.
W I T N E S S E T H:
WHEREAS, Lender has agreed to make and Borrower has agreed to accept the
Loan, which is to be evidenced by the Note and secured by the Security
Instrument encumbering the Land described on Exhibit "A" attached to this
Agreement;
WHEREAS, as a condition of making the Loan, Lender is requiring Borrower
to make the Repairs to the Improvements, which Repairs are generally described
in the Schedule of Work attached to this Agreement as Exhibit "B"; and
WHEREAS, in order to assure that the Repairs are made and paid for in a
timely manner, Lender is requiring Borrower to establish the Repair Escrow Fund
with Lender pursuant to the terms of this Agreement.
NOW, THEREFORE, for and in consideration of the Loan, the mutual promises
and covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lender and Borrower
agree as follows:
1. Definitions. The following terms used in this Agreement shall have the
meanings set forth below in this Section. Any term used in this Agreement
and not defined shall have the meaning given to that term in the Security
Instrument.
(a) "Completion Date" means the date that is 120 days after the
effective date of this Agreement or, October 22, 2003.
(b) "Disbursement Request" means Borrower's written requests to Lender
in the form attached to this Agreement as Exhibit "C" for the
disbursement of money from the Repair Escrow Fund pursuant to
Section 3 below, which requests shall not be made more often than
once every thirty (30) days during the term of this Agreement.
(c) "Improvements" means the buildings and improvements situated upon
the Land, currently constituting a multifamily apartment project
known as Plantation Crossing Apartments.
(d) "Loan" means the loan from Lender to Borrower in the original
principal amount of Four Million Four Hundred Eighty Thousand and
No/100ths Dollars ($4,480,000.00), as evidenced by the Note and
secured by the Security Instrument.
(e) "Minimum Disbursement Request Amount" means Seven Thousand Five
Hundred and No/100ths Dollars ($7,500.00).
(f) "Property" means the Land and Improvements.
(g) "Repairs" means the repairs to be made to the Property , as
described on the Schedule of Work or as otherwise required by Lender
in accordance with this Agreement.
(h) "Repair Escrow Deposit" means the sum of One Hundred Forty-Four
Thousand Eight Hundred Thirteen and No/100ths Dollars ($144,813.00)
deposited into escrow with Lender as of the effective date of this
Agreement, together with interest, if any, to be held in accordance
with the provisions of this Agreement.
(i) "Repair Escrow Fund" means the account established by this Agreement
into which the Repair Escrow Deposit is deposited.
(j) "Schedule of Work" means the schedule of work for the Repairs
attached to this Agreement as Exhibit "B".
(k) "Security Instrument" means the mortgage, deed of trust, deed to
secure debt, or other similar security instrument encumbering the
Property and securing Borrower's performance of its Loan
obligations.
2. Repair Escrow Fund.
(a) Establishment. Lender acknowledges that Borrower has established
the Repair Escrow Fund by depositing the amount of the Repair
Escrow Deposit with Lender. Borrower and Lender agree that all
moneys deposited into the Repair Escrow Fund shall be held by
Lender in an interest bearing account if Lender estimates that
the Repairs will require longer than ninety (90) days to
complete. Lender shall not be required to hold the Repair Escrow
Deposit in an interest bearing account if the Repairs are
required to be completed in ninety (90) days or less. Any
interest earned on such moneys shall be added to the principal
balance of the Repair Escrow Fund and disbursed in accordance
with the provisions of this Agreement. Lender shall be entitled
to deduct from the Repair Escrow Fund a one- time fee in the
amount of Five Hundred and No/100ths Dollars ($500.00) for
establishing the Repair Escrow Fund. Lender shall not be
responsible for any losses resulting from investment of moneys in
the Repair Escrow Fund or for obtaining any specific level or
percentage of earnings on such investment.
(b) Use. The Repair Escrow Deposit shall, except as otherwise stated in
this Agreement, be used for the purpose of paying, or reimbursing
Borrower for, the costs of the Repairs.
3. Disbursements. From time to time, as construction and completion of
the Repairs progresses, upon Borrower's submission of a Disbursement
Request in the form attached to this Agreement as Exhibit C, and
provided that Borrower is in full compliance with all the applicable
conditions set forth in this Agreement and in the other Loan Documents,
Lender shall make disbursements from the Repair Escrow Fund for payment
or reimbursement of the actual costs of the Repairs. Borrower must
sign the Borrower's Disbursement Request and Borrower must include
with its Disbursement Request a report setting out the progress of the
Repairs and any other reports or information relating to the
construction of the Repairs that may be reasonably requested by
Lender. Borrower must include with each Disbursement Request copies
of any applicable invoices and/or bills and appropriate lien waivers
for the prior period for which disbursement was made, executed by all
contractors and suppliers supplying labor or materials for the
Repairs. Unless waived by Lender in writing, Borrower must also
include a report prepared by the professional engineer employed by
Lender as to the status of the Repairs. Except for the final
Disbursement Request, no Disbursement Request shall be for an amount
less than the Minimum Disbursement Request Amount.
4. Reporting Requirements; Completion. Prior to receiving the final
disbursement from the Repair Escrow Fund, Borrower must deliver to Lender,
in addition to the information required by Section 3 above, the following:
(a) Contractor's Certificate. A certificate signed by each major
contractor and supplier of materials, as reasonably determined by
Lender, engaged to provide labor or materials for the Repairs to
the effect that such contractor or supplier has been paid in full
for all work completed and that the portion of the Repairs
provided by such contractor or supplier has been fully completed
in accordance with the plans and specifications (if any) provided
to it by Borrower and that such portion of the Repairs is in
compliance with all applicable building codes and other rules and
regulations promulgated by applicable regulatory or governmental
authorities;
(b) Borrower's Certificate. A certificate signed by Borrower to the
effect that the Repairs have been fully paid for, that all money
disbursed hereunder has been used for the Repairs and no claim or
claims exist against the Borrower or against the Property out of
which a lien based on furnishing labor or material exists or
might ripen. Borrower may except from the certificate described
in the preceding sentence any claim or claims that Borrower
intends to contest, provided that any such claim or claims are
described in Borrower's certificate and Borrower certifies to
Lender that the money in the Repair Escrow Fund is sufficient to
make payment of the full amount which might in any event be
payable in order to satisfy such claim or claims. If required by
Lender, Borrower also shall certify to Lender that such portion
of the Repairs is in compliance with all applicable zoning
ordinances;
(c) Engineer's Certificate. A certificate signed by the professional
engineer employed by Lender to the effect that the Repairs have been
completed in a good and workmanlike manner in compliance with the
Schedule of Work and all applicable building codes, zoning
ordinances and other rules and regulations promulgated by applicable
regulatory or governmental authorities; and
(d) Other Certificates. Any other certificates of approval, acceptance
or compliance required by Lender from or by the city, county, state
or federal governmental authorities having jurisdiction over the
Property and the Repairs.
5. Indirect and Excess Disbursements. Lender, in its sole judgment, is
authorized to hold, use and disburse from the Repair Escrow Fund to pay
any and all costs, charges and expenses whatsoever and howsoever
incurred or required in connection with the construction and completion
of the Repairs, or in the payment or performance of any obligation of
Borrower to Lender. If Lender, for purposes specified in this Section
5, shall elect to pay any portion of the money in the Repair Escrow
Fund to parties other than Borrower, then Lender may do so, at any time
and from time to time, and the amount of advances to which Borrower
shall be entitled under this Agreement shall be correspondingly reduced.
6. Schedule of Work. All disbursements from the Repair Escrow Fund shall be
limited to the costs of those items set forth on the Schedule of Work
attached to this Agreement as Exhibit "B".
7. Repairs. Borrower covenants and agrees with Lender as follows:
(a) Commencement of Work. Except as set forth on Exhibit D, prior to
the recordation of the Security Instrument, no work of any kind
has been or will be commenced or performed upon the Property and
no materials or equipment have been or will be delivered to or
upon the Property. In the event that any work of any kind has
been commenced or performed upon the Property, or in the event
that any materials or equipment have been ordered or delivered to
or upon the Property, then (i) prior to the execution of the
Security Instrument the Borrower shall fully disclose in writing
to the title insurance company issuing the mortgagee title
insurance policy insuring the lien of the Security Instrument
that work has been commenced or performed on the Property, or
materials or equipment have been ordered or delivered to or upon
the Property, (ii) prior to the execution of the Security
Instrument Borrower shall have obtained and delivered to Lender
and the title company issuing the mortgagee title insurance
policy insuring the lien of the Security Instrument lien waivers
from all contractors, subcontractors, suppliers, or any other
applicable party, pertaining to all work commenced or performed
on the Property, or materials or equipment ordered or delivered
to or upon the Property, and (iii) the final mortgagee's title
insurance policy insuring the lien of the Security Instrument
shall take no exception from coverage for any mechanics or
materialmen's liens.
(b) Construction. Borrower will commence the Repairs as soon as
practicable after the date of this Agreement and will diligently
proceed with and complete the Repairs on or before the Completion
Date in a workmanlike manner and in accordance with the Schedule of
Work, good building practices and all applicable laws, ordinances,
rules and regulations.
(c) Changes in Schedule of Work. Without the prior written consent of
Lender, Borrower will make no departures from or alterations to the
Schedule of Work.
(d) Inspections. Borrower will permit Lender or any person
designated by Lender (including without limitation a professional
inspection engineer) and any interested governmental authority,
at any time and from time to time, to inspect the Repairs and
Improvements and to examine and copy all of Borrower's books and
records and all contracts and bills pertaining to the Repairs and
Improvements. Lender shall be entitled to deduct from the Repair
Escrow Fund reasonable fees for performing any such inspections
and/or an amount sufficient to reimburse Lender for all fees and
expenses charged by any professional inspection engineer employed
by Lender in connection with any such inspection. Borrower
agrees to cause the replacement of any material or work that is
defective, unworkmanlike, does not comply with any applicable
law, ordinance, rule or regulation, or does not comply with the
requirements of this Agreement, as determined by Lender. Prior
to and as a condition of the final disbursement of funds from the
Repair Escrow Fund, Lender shall inspect or cause to be inspected
the Repairs and the Improvements to determine that all Repairs,
including but not limited to interior and exterior repairs, have
been completed in a manner acceptable to Lender.
(e) Purchases. Without the prior written consent of Lender, no
materials, machinery, equipment, fixtures or any other part of
the Repairs shall be purchased or installed under conditional
sale contracts or lease agreements, or any other arrangement
wherein title to such Repairs is retained or subjected to a
purchase money security interest, or the right is reserved or
accrues to anyone to remove or repossess any such Repairs, or to
consider them as personal property.
8. Lien Protection. Borrower shall promptly pay or cause to be paid, when
due, all costs, charges and expenses incurred in connection with the
construction and completion of the Repairs, and shall keep the Property
free and clear of any and all liens other than the lien of the Security
Instrument and any other junior lien which may be consented to by Lender.
9. Adverse Claims. Borrower shall promptly advise Lender in writing of any
litigation, liens, or claims affecting the Property and of all complaints
and charges made by any governmental authority or any governmental
department, bureau, commission or agency exercising supervision or control
over Borrower or its business, which may delay or adversely affect the
Repairs.
10. Compliance With Laws; Insurance Requirements.
(a) Compliance With Laws. All Repairs shall comply with all applicable
laws, ordinances, rules and regulations of all governmental
authorities having jurisdiction over the Property, and with all
applicable insurance requirements including, without limitation,
applicable building codes, special use permits, environmental
regulations, and requirements of insurance underwriters.
(b) Insurance Requirements. In addition to any insurance required
under the Loan Documents, Borrower shall provide or cause to be
provided workers' compensation, builder's risk (if required by
Lender), and public liability insurance and other insurance
required under applicable law in connection with any of the
Repairs. All such policies shall be in form and amount
satisfactory to Lender. All such policies that can be endorsed
with standard mortgage clauses making losses payable to Lender or
its assigns shall be so endorsed. The originals of such policies
shall be deposited with Lender.
11. Use of Repair Escrow Fund. Borrower will accept disbursements from the
Repair Escrow Fund in accordance with the provisions of this Agreement and
will use, or cause to be used, each such disbursement solely to pay for
materials, labor and services, or to pay costs and expenses for which such
disbursement is requested.
12. Conditions Precedent. Lender shall not be obligated to make any
disbursement from the Repair Escrow Fund to or for the benefit of Borrower
unless at the time of each Disbursement Request all of the following
conditions prevail:
(a) No Default. There shall exist no condition, event or act that would
constitute a default (with or without notice and/or lapse of time)
under this Agreement or any other Loan Document.
(b) Representations and Warranties. All representations and warranties
of Borrower set forth in this Agreement and in the Loan Documents
are true.
(c) Continuing Compliance. Borrower shall be in full compliance with the
provisions of this Agreement, the other Loan Documents and any
request or demand by Lender permitted hereby.
(d) No Lien Claim. No lien or claim based on furnishing labor or
materials has been filed or asserted against the Property, unless
Borrower has properly provided bond or other security against loss
in accordance with applicable law.
(e) Approvals. All licenses, permits, and approvals of governmental
authorities required for the Repairs as completed to the applicable
stage have been obtained.
(f) Legal Compliance. The Repairs as completed to the applicable stage
do not violate any laws, ordinances, rules or regulations, or
building lines or restrictions applicable to the Property.
13. Right to Complete Repairs. If Borrower abandons or fails to proceed
diligently with the Repairs or otherwise is in default under this
Agreement, Lender shall have the right (but not the obligation) to
enter upon the Property and take over and cause the completion of the
Repairs. Any contracts entered into or indebtedness incurred upon the
exercise of such right may be in the name of Borrower, and Lender is
hereby irrevocably appointed the attorney in fact of Borrower, such
appointment being coupled with an interest, to enter into such
contracts, incur such obligations, enforce any contracts or agreements
made by or on behalf of Borrower (including the prosecution and defense
of all actions and proceedings in connection with the Repairs and the
payment, settlement, or compromise of all claims for materials and work
performed in connection with the Repairs) and do any and all things
necessary or proper to complete the Repairs including signing
Borrower's name to any contracts and documents as may be deemed
necessary by Lender. In no event shall Lender be required to expend
its own funds to complete the Repairs, but Lender may, in Lender's sole
discretion, advance such funds. Any funds advanced shall be added to
the outstanding balance of the Note, secured by the Security Instrument
and payable to Lender by Borrower in accordance with the provisions of
the Security Instrument pertaining to the protection of Lender's
security and advances made by Lender. Borrower waives any and all
claims it may have against Lender for materials used, work performed or
resultant damage to the Property.
14. Insufficient Account. If Lender determines in its reasonable discretion
that the money in the Repair Escrow Fund is insufficient to pay for the
Repairs, Lender shall so notify Borrower, in writing, and as soon as
possible (but in no event later than twenty (20) days after such notice)
Borrower shall pay to Lender an amount, in cash, equal to such deficiency,
which amount shall be placed in the Repair Escrow Fund by Lender.
15. Security Agreement. To secure Borrower's obligations under this
Agreement and to further secure Borrower's obligations under the Note,
Security Instrument and other Loan Documents, Borrower hereby conveys,
pledges, transfers and grants to Lender a security interest pursuant to
the Uniform Commercial Code of the Jurisdiction and other applicable
laws in and to all money in the Repair Escrow Fund as such may increase
or decrease from time to time, and all interest and dividends thereon
and all proceeds thereof.
16. Post Default. If Borrower defaults in the performance of its
obligations under this Agreement or under the Note, Security Instrument
or any other Loan Document, Lender shall have all remedies available
to them under Article 9 of the Uniform Commercial Code of the
Jurisdiction and under any other applicable laws and, in addition, may
retain all moneys in the Repair Escrow Fund, including interest, and in
Lender's discretion, may apply such amounts, without restriction and
without any specific order of priority, to the payment of any and all
indebtedness or obligations of Borrower set forth in the Note, Security
Instrument or other Loan Documents, including, but not limited to,
principal, interest, taxes, insurance, reasonable attorneys' fees
actually incurred and/or repairs to the Property.
17. Termination. This Agreement shall terminate upon the completion of the
Repairs in accordance with this Agreement and Lender's satisfaction, and
the full disbursement by Lender of the Repair Escrow Fund. In the event
there are funds remaining in the Repair Escrow Fund after the Repairs have
been completed in accordance with this Agreement, and provided no default
by Borrower exists under this Agreement or under any other Loan Documents,
such funds remaining in the Repair Escrow Fund shall be refunded by Lender
to the Borrower.
18. No Amendment. Nothing contained in this Agreement shall be construed to
amend, modify, alter, change or supersede the terms and provisions of the
Note, Security Instrument or any other Loan Document and, if there shall
exist a conflict between the terms and provisions of this Agreement and
those of the Note, Security Instrument or other Loan Documents, then the
terms and provisions of the Note, Security Instrument and other Loan
Documents shall control.
19. Release; Indemnity.
(a) Release. Borrower covenants and agrees that, in performing any of
its duties under this Agreement, none of Lender, and Loan Servicer
or any of their respective agents or employees, shall be liable for
any losses, costs or damages which may be incurred by any of them as
a result thereof, except that no party will be released from
liability for any losses, costs or damages arising out of the
willful misconduct or gross negligence of such party.
(b) Indemnity. Borrower hereby agrees to indemnify and hold harmless
Lender, Loan Servicer, and their respective agents and employees,
against any and all losses, claims, damages, liabilities and
expenses including, without limitation, reasonable attorneys'
fees and costs, which may be imposed or incurred by any of them
in connection with this Agreement, except that no such party will
be indemnified from any losses, claims, damages, liabilities and
expenses arising out of the willful misconduct or gross
negligence of such party.
20. Choice of Law. This Agreement shall be construed and enforced in
accordance with the laws of the Property Jurisdiction.
21. Successors and Assigns. Lender may assign its rights and interests
under this Agreement in whole or in part and upon any such assignment,
all the terms and provisions of this Agreement shall inure to the
benefit of such assignee to the extent so assigned. The terms used to
designate any of the parties herein shall be deemed to include the
heirs, legal representatives, successors and assigns of such parties;
and the term "Lender" shall also include any lawful owner, holder or
pledgee of the Note. Reference herein to "person" or "persons" shall
be deemed to include individuals and entities. Borrower may not assign
its rights, interests, or obligations under this Agreement without
first obtaining Lender's prior written consent.
22. Attorneys' Fees. In the event that Lender shall engage the services of an
attorney at law to enforce the provisions of this Agreement against
Borrower, then Borrower shall pay all costs of such enforcement, including
any reasonable attorneys' fees and costs (including those of Lender's
in-house counsel) actually incurred.
23. Remedies Cumulative. In the event of Borrower's default under this
Agreement, Lender may exercise all or any one or more of its rights and
remedies available under this Agreement, at law or in equity. Such
rights and remedies shall be cumulative and concurrent, and may be
enforced separately, successively or together, and Lender's exercise of
any particular right or remedy shall not in any way prevent Lender from
exercising any other right or remedy available to Lender. Lender may
exercise any such remedies from time to time as often as may be deemed
necessary by Lender.
24. Determinations by Lender. In any instance where the consent or
approval of Lender may be given or is required, or where any
determination, judgment or decision is to be rendered by Lender under
this Agreement, the granting, withholding or denial of such consent or
approval and the rendering of such determination, judgment or decision
shall be made or exercised by Lender (or its designated representative)
at its sole and exclusive option and in its sole and absolute
discretion.
25. Completion of Repairs. Lender's disbursement of moneys in the Repair
Escrow Fund or other acknowledgment of completion of any Repair in a
manner satisfactory to Lender shall not be deemed a certification by
Lender that the Repair has been completed in accordance with applicable
building, zoning or other codes, ordinances, statutes, laws,
regulations or requirements of any governmental authority or agency.
Borrower shall at all times have the sole responsibility for insuring
that all Repairs are completed in accordance with all such governmental
requirements.
26. No Agency or Partnership. Nothing contained in this Agreement shall
constitute Lender as a joint venturer, partner or agent of Borrower, or
render Lender liable for any debts, obligations, acts, omissions,
representations or contracts of Borrower.
27. Entire Agreement. This Agreement and the other Loan Documents
represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral
agreements. There are no unwritten oral agreements between the
parties. All prior or contemporaneous agreements, understandings,
representations, and statements, oral or written, are merged into this
Agreement and the other Loan Documents. Neither this Agreement nor any
of its provisions may be waived, modified, amended, discharged, or
terminated except in writing signed by the party against which the
enforcement of the waiver, modification, amendment, discharge, or
termination is sought, and then only to the extent set forth in that
writing; provided, however, that in the event of a Transfer requiring
Lender's consent under the terms of the Security Instrument, any one or
more, or all, of the Modifications to Agreement set forth in Exhibit
"E" (if any) may be modified or rendered void by Lender at Lender's
option by notice to Borrower/transferee.
28. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original document and all of which
together shall constitute one agreement.
ATTACHED EXHIBITS. The following Exhibits are attached to this
Agreement:
|X | Exhibit A Legal Description of Land (required)
|X | Exhibit B Schedule of Work (required)
|X | Exhibit C Disbursement Request (required)
|X | Exhibit D Work Performed or Commenced and Material or
Equipment Ordered (required, if none, state "NONE")
| | Exhibit E Modifications to Agreement
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
BORROWER:
CENTURY PROPERTIES FUND XIX
a California limited partnership
By: Fox Partners II
a California general partnership
General Partner
By: Fox Capital Management Corporation
a California corporation
Managing Partner
By: /s/Patti K. Fielding
Patti K. Fielding
Executive Vice President
Taxpayer Identification No.: 94-2887133
LENDER:
KEYCORP REAL ESTATE CAPITAL
MARKETS, INC.
an Ohio corporation
By: /s/Janette M. O'Brien
Janette M. O'Brien
Vice President
Exhibit 10.16
Freddie Mac Loan No.180552724
MULTIFAMILY NOTE
(MULTISTATE - REVISION DATE 11-01-2000)
US $8,470,000.00 as of June 25, 2003
FOR VALUE RECEIVED, the undersigned ("Borrower") jointly and severally (if
more than one) promises to pay to the order of KEYCORP REAL ESTATE CAPITAL
MARKETS, INC., an Ohio corporation, the principal sum of Eight Million Four
Hundred Seventy Thousand and No/100ths Dollars (US $8,470,000.00), with interest
on the unpaid principal balance at the annual rate of four and forty-one
one-hundredths percent (4.41%).
1. Defined Terms. As used in this Note, (i) the term "Lender" means the
holder of this Note, and (ii) the term "Indebtedness" means the principal of,
interest on, and any other amounts due at any time under, this Note, the
Security Instrument or any other Loan Document, including prepayment premiums,
late charges, default interest, and advances to protect the security of the
Security Instrument under Section 12 of the Security Instrument. "Event of
Default" and other capitalized terms used but not defined in this Note shall
have the meanings given to such terms in the Security Instrument.
2. Address for Payment. All payments due under this Note shall be payable
at Key Commercial Mortgage, PO Box 145404, Cincinnati, OH 45250, or such other
place as may be designated by written notice to Borrower from or on behalf of
Lender.
3. Payment of Principal and Interest. Principal and interest shall be paid
as follows:
(a) Unless disbursement of principal is made by Lender to Borrower on the
first day of the month, interest for the period beginning on the date of
disbursement and ending on and including the last day of the month in which such
disbursement is made shall be payable simultaneously with the execution of this
Note. Interest under this Note shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
(b) Consecutive monthly installments of principal and interest, each in
the amount of Fifty-Three Thousand One Hundred Seventy-Four and 79/100ths
Dollars (US $53,174.49), shall be payable on the first day of each month
beginning on August 1, 2003, until the entire unpaid principal balance evidenced
by this Note is fully paid.
(c) Any accrued interest remaining past due for 30 days or more may, at
Lender's discretion, be added to and become part of the unpaid principal balance
and shall bear interest at the rate or rates specified in this Note, and any
reference below to "accrued interest" shall refer to accrued interest which has
not become part of the unpaid principal balance. Any remaining principal and
interest shall be due and payable on July 1, 2013 or on any earlier date on
which the unpaid principal balance of this Note becomes due and payable, by
acceleration or otherwise (the "Maturity Date"). The unpaid principal balance
shall continue to bear interest after the Maturity Date at the Default Rate set
forth in this Note until and including the date on which it is paid in full.
(d) Any regularly scheduled monthly installment of principal and interest
that is received by Lender before the date it is due shall be deemed to have
been received on the due date solely for the purpose of calculating interest
due.
4. Application of Payments. If at any time Lender receives, from Borrower
or otherwise, any amount applicable to the Indebtedness which is less than all
amounts due and payable at such time, Lender may apply that payment to amounts
then due and payable in any manner and in any order determined by Lender, in
Lender's discretion. Borrower agrees that neither Lender's acceptance of a
payment from Borrower in an amount that is less than all amounts then due and
payable nor Lender's application of such payment shall constitute or be deemed
to constitute either a waiver of the unpaid amounts or an accord and
satisfaction.
5. Security. The Indebtedness is secured, among other things, by a
multifamily mortgage, deed to secure debt or deed of trust dated as of the date
of this Note (the "Security Instrument"), and reference is made to the Security
Instrument for other rights of Lender as to collateral for the Indebtedness.
6. Acceleration. If an Event of Default has occurred and is continuing,
the entire unpaid principal balance, any accrued interest, the prepayment
premium payable under Paragraph 10, if any, and all other amounts payable under
this Note and any other Loan Document shall at once become due and payable, at
the option of Lender, without any prior notice to Borrower (except if notice is
required by applicable law, then after such notice). Lender may exercise this
option to accelerate regardless of any prior forbearance.
7. Late Charge. If any monthly amount payable under this Note or under the
Security Instrument or any other Loan Document is not received by Lender within
ten (10) days after the amount is due (unless applicable law requires a longer
period of time before a late charge may be imposed, in which event such longer
period shall be substituted), Borrower shall pay to Lender, immediately and
without demand by Lender, a late charge equal to five percent (5%) of such
amount (unless applicable law requires a lesser amount be charged, in which
event such lesser amount shall be substituted). Borrower acknowledges that its
failure to make timely payments will cause Lender to incur additional expenses
in servicing and processing the loan evidenced by this Note (the "Loan"), and
that it is extremely difficult and impractical to determine those additional
expenses. Borrower agrees that the late charge payable pursuant to this
Paragraph represents a fair and reasonable estimate, taking into account all
circumstances existing on the date of this Note, of the additional expenses
Lender will incur by reason of such late payment. The late charge is payable in
addition to, and not in lieu of, any interest payable at the Default Rate
pursuant to Paragraph 8.
8. Default Rate. So long as (a) any monthly installment under this Note
remains past due for thirty (30) days or more, or (b) any other Event of Default
has occurred and is continuing, interest under this Note shall accrue on the
unpaid principal balance from the earlier of the due date of the first unpaid
monthly installment or the occurrence of such other Event of Default, as
applicable, at a rate (the "Default Rate") equal to the lesser of four (4)
percentage points above the rate stated in the first paragraph of this Note and
the maximum interest rate which may be collected from Borrower under applicable
law. If the unpaid principal balance and all accrued interest are not paid in
full on the Maturity Date, the unpaid principal balance and all accrued interest
shall bear interest from the Maturity Date at the Default Rate. Borrower also
acknowledges that its failure to make timely payments will cause Lender to incur
additional expenses in servicing and processing the Loan, that, during the time
that any monthly installment under this Note is delinquent for more than thirty
(30) days, Lender will incur additional costs and expenses arising from its loss
of the use of the money due and from the adverse impact on Lender's ability to
meet its other obligations and to take advantage of other investment
opportunities, and that it is extremely difficult and impractical to determine
those additional costs and expenses. Borrower also acknowledges that, during the
time that any monthly installment under this Note is delinquent for more than
thirty (30) days or any other Event of Default has occurred and is continuing,
Lender's risk of nonpayment of this Note will be materially increased and Lender
is entitled to be compensated for such increased risk. Borrower agrees that the
increase in the rate of interest payable under this Note to the Default Rate
represents a fair and reasonable estimate, taking into account all circumstances
existing on the date of this Note, of the additional costs and expenses Lender
will incur by reason of the Borrower's delinquent payment and the additional
compensation Lender is entitled to receive for the increased risks of nonpayment
associated with a delinquent loan.
9. Limits on Personal Liability.
(a) Except as otherwise provided in this Paragraph 9, Borrower shall have
no personal liability under this Note, the Security Instrument or any other Loan
Document for the repayment of the Indebtedness or for the performance of any
other obligations of Borrower under the Loan Documents, and Lender's only
recourse for the satisfaction of the Indebtedness and the performance of such
obligations shall be Lender's exercise of its rights and remedies with respect
to the Mortgaged Property and any other collateral held by Lender as security
for the Indebtedness. This limitation on Borrower's liability shall not limit or
impair Lender's enforcement of its rights against any guarantor of the
Indebtedness or any guarantor of any obligations of Borrower.
(b) Borrower shall be personally liable to Lender for the repayment of a
portion of the Indebtedness equal to zero percent (0%) of the original principal
balance of this Note, plus any other amounts for which Borrower has personal
liability under this Paragraph 9.
(c) In addition to Borrower's personal liability under Paragraph 9(b),
Borrower shall be personally liable to Lender for the repayment of a further
portion of the Indebtedness equal to any loss or damage suffered by Lender as a
result of (1) failure of Borrower to pay to Lender upon demand after an Event of
Default all Rents to which Lender is entitled under Section 3(a) of the Security
Instrument and the amount of all security deposits collected by Borrower from
tenants then in residence; (2) failure of Borrower to apply all insurance
proceeds and condemnation proceeds as required by the Security Instrument; or
(3) failure of Borrower to comply with Section 14(d) or (e) of the Security
Instrument relating to the delivery of books and records, statements, schedules
and reports.
(d) For purposes of determining Borrower's personal liability under
Paragraph 9(b) and Paragraph 9(c), all payments made by Borrower or any
guarantor of this Note with respect to the Indebtedness and all amounts received
by Lender from the enforcement of its rights under the Security Instrument shall
be applied first to the portion of the Indebtedness for which Borrower has no
personal liability.
(e) Borrower shall become personally liable to Lender for the repayment of
all of the Indebtedness upon the occurrence of any of the following Events of
Default: (1) Borrower's acquisition of any property or operation of any business
not permitted by Section 33 of the Security Instrument; (2) a Transfer
(including, but not limited to, a lien or encumbrance) that is an Event of
Default under Section 21 of the Security Instrument, other than a Transfer
consisting solely of the involuntary removal or involuntary withdrawal of a
general partner in a limited partnership or a manager in a limited liability
company; or (3) fraud or written material misrepresentation by Borrower or any
officer, director, partner, member or employee of Borrower in connection with
the application for or creation of the Indebtedness or any request for any
action or consent by Lender.
(f) In addition to any personal liability for the Indebtedness, Borrower
shall be personally liable to Lender for (1) the performance of all of
Borrower's obligations under Section 18 of the Security Instrument (relating to
environmental matters); (2) the costs of any audit under Section 14(d) of the
Security Instrument; and (3) any costs and expenses incurred by Lender in
connection with the collection of any amount for which Borrower is personally
liable under this Paragraph 9, including fees and out of pocket expenses of
attorneys and expert witnesses and the costs of conducting any independent audit
of Borrower's books and records to determine the amount for which Borrower has
personal liability.
(g) To the extent that Borrower has personal liability under this
Paragraph 9, Lender may exercise its rights against Borrower personally without
regard to whether Lender has exercised any rights against the Mortgaged Property
or any other security, or pursued any rights against any guarantor, or pursued
any other rights available to Lender under this Note, the Security Instrument,
any other Loan Document or applicable law. For purposes of this Paragraph 9, the
term "Mortgaged Property" shall not include any funds that (1) have been applied
by Borrower as required or permitted by the Security Instrument prior to the
occurrence of an Event of Default or (2) Borrower was unable to apply as
required or permitted by the Security Instrument because of a bankruptcy,
receivership, or similar judicial proceeding. To the fullest extent permitted by
applicable law, in any action to enforce Borrower's personal liability under
this Paragraph 9, Borrower waives any right to set off the value of the
Mortgaged Property against such personal liability.
10. Voluntary and Involuntary Prepayments.
(a) A prepayment premium shall be payable in connection with any
prepayment (any receipt by Lender of principal, other than principal required to
be paid in monthly installments pursuant to Paragraph 3(b), prior to the
scheduled Maturity Date set forth in Paragraph 3(c) under this Note as provided
below:
(1) Borrower may voluntarily prepay all of the unpaid principal
balance of this Note on a Business Day designated as the date for such
prepayment in a written notice from Borrower to Lender given at least 30 days
prior to the date of such prepayment. Such prepayment shall be made by paying
(A) the amount of principal being prepaid, (B) all accrued interest, (C) all
other sums due Lender at the time of such prepayment, and (D) the prepayment
premium calculated pursuant to Paragraph 10(c). For all purposes including the
accrual of interest, any prepayment received by Lender on any day other than the
last calendar day of the month shall be deemed to have been received on the last
calendar day of such month. For purposes of this Note, a "Business Day" means
any day other than a Saturday, Sunday or any other day on which Lender is not
open for business. Unless expressly provided for in the Loan Documents, Borrower
shall not have the option to voluntarily prepay less than all of the unpaid
principal balance. However, if a partial prepayment is provided for in the Loan
Documents or is accepted by Lender in Lender's discretion, a prepayment premium
calculated pursuant to Paragraph 10(c) shall be due and payable by Borrower.
(2) Upon Lender's exercise of any right of acceleration under this
Note, Borrower shall pay to Lender, in addition to the entire unpaid principal
balance of this Note outstanding at the time of the acceleration, (A) all
accrued interest and all other sums due Lender, and (B) the prepayment premium
calculated pursuant to Paragraph 10(c).
(3) Any application by Lender of any collateral or other security to
the repayment of any portion of the unpaid principal balance of this Note prior
to the Maturity Date and in the absence of acceleration shall be deemed to be a
partial prepayment by Borrower, requiring the payment to Lender by Borrower of a
prepayment premium.
(b) Notwithstanding the provisions of Paragraph 10(a), no prepayment
premium shall be payable with respect to (A) any prepayment made during the
period from zero (0) days before the scheduled Maturity Date to the scheduled
Maturity Date, or (B) any prepayment occurring as a result of the application of
any insurance proceeds or condemnation award under the Security Instrument.
(c) Any prepayment premium payable under this Note shall be computed as
follows:
(1) If the prepayment is made between the date of this Note and the
date that is 120 months after the first day of the first calendar month
following the date of this Note (the "Yield Maintenance Period"), the prepayment
premium shall be whichever is the greater of subparagraphs (i) and (ii) below:
(i) 1.0% of the unpaid principal balance of this Note; or
(ii) the product obtained by multiplying:
(A) the amount of principal being prepaid, by (B) the excess
(if any) of the Monthly Note Rate over the
Assumed
Reinvestment Rate,
by
(C) the Present Value Factor.
For purposes of subparagraph (ii), the following definitions shall
apply:
Monthly Note Rate: one-twelfth (1/12) of the annual interest rate
of this Note, expressed as a decimal calculated to five digits.
Prepayment Date: in the case of a voluntary prepayment, the date on
which the prepayment is made; in the case of the application by
Lender of collateral or security to a portion of the principal
balance, the date of such application; and in any other case, the
date on which Lender accelerates the unpaid principal balance of
this Note.
Assumed Reinvestment Rate: one-twelfth (1/12) of the yield rate as
of the date 5 Business Days before the Prepayment Date, on the
3.625% U.S. Treasury Security due May 1, 2013, as reported in The
Wall Street Journal, expressed as a decimal calculated to five
digits. In the event that no yield is published on the applicable
date for the Treasury Security used to determine the Assumed
Reinvestment Rate, Lender, in its discretion, shall select the
non-callable Treasury Security maturing in the same year as the
Treasury Security specified above with the lowest yield published in
The Wall Street Journal as of the applicable date. If the
publication of such yield rates in The Wall Street Journal is
discontinued for any reason, Lender shall select a security with a
comparable rate and term to the Treasury Security used to determine
the Assumed Reinvestment Rate. The selection of an alternate
security pursuant to this Paragraph shall be made in Lender's
discretion.
Present Value Factor: the factor that discounts to present value the
costs resulting to Lender from the difference in interest rates
during the months remaining in the Yield Maintenance Period, using
the Assumed Reinvestment Rate as the discount rate, with monthly
compounding, expressed numerically as follows:
[OBJECT OMITTED]
n = number of months remaining in Yield Maintenance Period
ARR = Assumed Reinvestment Rate
(2) If the prepayment is made after the expiration of the Yield
Maintenance Period but before the period set forth in Paragraph 10(b)(A) above,
the prepayment premium shall be 1.0% of the unpaid principal balance of this
Note.
(d) Any permitted or required prepayment of less than the unpaid principal
balance of this Note shall not extend or postpone the due date of any subsequent
monthly installments or change the amount of such installments, unless Lender
agrees otherwise in writing.
(e) Borrower recognizes that any prepayment of the unpaid principal
balance of this Note, whether voluntary or involuntary or resulting from a
default by Borrower, will result in Lender's incurring loss, including
reinvestment loss, additional expense and frustration or impairment of Lender's
ability to meet its commitments to third parties. Borrower agrees to pay to
Lender upon demand damages for the detriment caused by any prepayment, and
agrees that it is extremely difficult and impractical to ascertain the extent of
such damages. Borrower therefore acknowledges and agrees that the formula for
calculating prepayment premiums set forth in this Note represents a reasonable
estimate of the damages Lender will incur because of a prepayment.
(f) Borrower further acknowledges that the prepayment premium provisions
of this Note are a material part of the consideration for the Loan, and
acknowledges that the terms of this Note are in other respects more favorable to
Borrower as a result of the Borrower's voluntary agreement to the prepayment
premium provisions.
11. Costs and Expenses. To the fullest extent allowed by applicable law,
Borrower shall pay all expenses and costs, including fees and out-of-pocket
expenses of attorneys (including Lender's in-house attorneys) and expert
witnesses and costs of investigation, incurred by Lender as a result of any
default under this Note or in connection with efforts to collect any amount due
under this Note, or to enforce the provisions of any of the other Loan
Documents, including those incurred in post-judgment collection efforts and in
any bankruptcy proceeding (including any action for relief from the automatic
stay of any bankruptcy proceeding) or judicial or non-judicial foreclosure
proceeding.
12. Forbearance. Any forbearance by Lender in exercising any right or
remedy under this Note, the Security Instrument, or any other Loan Document or
otherwise afforded by applicable law, shall not be a waiver of or preclude the
exercise of that or any other right or remedy. The acceptance by Lender of any
payment after the due date of such payment, or in an amount which is less than
the required payment, shall not be a waiver of Lender's right to require prompt
payment when due of all other payments or to exercise any right or remedy with
respect to any failure to make prompt payment. Enforcement by Lender of any
security for Borrower's obligations under this Note shall not constitute an
election by Lender of remedies so as to preclude the exercise of any other right
or remedy available to Lender.
13. Waivers. Presentment, demand, notice of dishonor, protest, notice of
acceleration, notice of intent to demand or accelerate payment or maturity,
presentment for payment, notice of nonpayment, grace, and diligence in
collecting the Indebtedness are waived by Borrower and all endorsers and
guarantors of this Note and all other third party obligors.
14. Loan Charges. Neither this Note nor any of the other Loan Documents
shall be construed to create a contract for the use, forbearance or detention of
money requiring payment of interest at a rate greater than the maximum interest
rate permitted to be charged under applicable law. If any applicable law
limiting the amount of interest or other charges permitted to be collected from
Borrower in connection with the Loan is interpreted so that any interest or
other charge provided for in any Loan Document, whether considered separately or
together with other charges provided for in any other Loan Document, violates
that law, and Borrower is entitled to the benefit of that law, that interest or
charge is hereby reduced to the extent necessary to eliminate that violation.
The amounts, if any, previously paid to Lender in excess of the permitted
amounts shall be applied by Lender to reduce the unpaid principal balance of
this Note. For the purpose of determining whether any applicable law limiting
the amount of interest or other charges permitted to be collected from Borrower
has been violated, all Indebtedness that constitutes interest, as well as all
other charges made in connection with the Indebtedness that constitute interest,
shall be deemed to be allocated and spread ratably over the stated term of the
Note. Unless otherwise required by applicable law, such allocation and spreading
shall be effected in such a manner that the rate of interest so computed is
uniform throughout the stated term of the Note.
15. Commercial Purpose. Borrower represents that the Indebtedness is being
incurred by Borrower solely for the purpose of carrying on a business or
commercial enterprise, and not for personal, family, household, or agricultural
purposes.
16. Counting of Days. Except where otherwise specifically provided, any
reference in this Note to a period of "days" means calendar days, not Business
Days.
17. Governing Law. This Note shall be governed by the law of the
jurisdiction in which the Land is located.
18. Captions. The captions of the paragraphs of this Note are for
convenience only and shall be disregarded in construing this Note.
19. Notices; Written Modifications. All notices, demands and other
communications required or permitted to be given by Lender to Borrower pursuant
to this Note shall be given in accordance with Section 31 of the Security
Instrument. Any modification or amendment to this Note shall be ineffective
unless in writing signed by the party sought to be charged with such
modification or amendment; provided, however, that in the event of a Transfer
under the terms of the Security Instrument, any or some or all of the
Modifications to Multifamily Note may be modified or rendered void by Lender at
Lender's option by notice to Borrower/transferee.
20. Consent to Jurisdiction and Venue. Borrower agrees that any
controversy arising under or in relation to this Note shall be litigated
exclusively in the jurisdiction in which the Land is located (the "Property
Jurisdiction"). The state and federal courts and authorities with jurisdiction
in the Property Jurisdiction shall have exclusive jurisdiction over all
controversies which shall arise under or in relation to this Note. Borrower
irrevocably consents to service, jurisdiction, and venue of such courts for any
such litigation and waives any other venue to which it might be entitled by
virtue of domicile, habitual residence or otherwise.
21. WAIVER OF TRIAL BY JURY. BORROWER AND LENDER EACH (A) AGREES NOT TO
ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS NOTE OR THE
RELATIONSHIP BETWEEN THE PARTIES AS LENDER AND BORROWER THAT IS TRIABLE OF RIGHT
BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE
TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND
VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
ATTACHED EXHIBIT. The following Exhibit is attached to this Note:
|X| Exhibit A Modifications to Multifamily Note
IN WITNESS WHEREOF, Borrower has signed and delivered this Note under seal
or has caused this Note to be signed and delivered under seal by its duly
authorized representative. Borrower intends that this Note shall be deemed to be
signed and delivered as a sealed instrument.
CENTURY PROPERTIES FUND XIX
a California limited partnership
By: Fox Partners II
a California general partnership
General Partner
By: Fox Capital Management Corporation
a California corporation
Managing Partner
By /s/Patti K. Fielding (Seal)
Patti K. Fielding
Executive Vice President
94-2887133
Borrower's Employer ID Number
Pay to the Order of FEDERAL HOME LOAN MORTGAGE CORPORATION, without recourse.
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
an Ohio corporation
By: /s/Janette M. O'Brien
Janette M. O'Brien
Vice President
Exhibit 10.17
REPLACEMENT RESERVE AGREEMENT
(REVISION DATE 01-31-2003)
(FHLMC Loan No. 180552724)
This REPLACEMENT RESERVE AGREEMENT ("Agreement") is made and entered into,
to be effective as of June 25, 2003, by and between CENTURY PROPERTIES FUND XIX,
a California limited partnership ("Borrower"), and KEYCORP REAL ESTATE CAPITAL
MARKETS, INC., an Ohio corporation ("Lender") and its successors and assigns.
W I T N E S S E T H:
WHEREAS, Lender has agreed to make and Borrower has agreed to accept the
Loan, which is to be evidenced by the Note and secured by the Security
Instrument encumbering the Land and the Improvements. The Land is described on
Exhibit "A" attached to this Agreement; and
WHEREAS, as a condition of making the Loan, Lender is requiring Borrower
to establish the Replacement Reserve Fund for the funding of Capital
Replacements throughout the Loan term.
NOW, THEREFORE, for and in consideration of the Loan, the mutual promises
and covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lender and Borrower
agree as follows:
1. Definitions. The following terms used in this Agreement shall have the
meanings set forth below in this Section 1. Any term used in this
Agreement and not defined shall have the meaning given to that term in the
Security Instrument.
(a) "Capital Replacement" means the replacement of those items listed on
Exhibit "B" of this Agreement and such other replacements of
equipment, major components or capital systems related to the
Improvements as may be approved in writing or required by Lender.
(b) "Disbursement Period" means the interval between disbursements from
the Replacement Reserve Fund, which interval shall be no shorter
than once a quarter.
(c) "Improvements" means the buildings, Personal Property and
improvements situated upon the Land, currently constituting a
multifamily apartment project known as Vinings Peak Apartments.
(d) "Initial Deposit" means the amount of Zero Dollars ($0) made as of
the date of this Agreement.
(e) Inspection Fee means a fee for performing any inspection required by
this Agreement in an amount not to exceed Five Hundred and No/100ths
Dollars ($500.00) per inspection.
(f) Investment Fee means a one time fee for establishing the Replacement
Reserve Fund in the amount of Five Hundred and No/100ths Dollars
($500.00).
(g) "Loan" means the loan from Lender to Borrower in the original
principal amount of Eight Million Four Hundred Seventy Thousand and
No/100ths Dollars ($8,470,000), as evidenced by the Note and secured
by the Security Instrument.
(h) "Minimum Disbursement Request Amount" means Seven Thousand Five
Hundred and No/100ths Dollars ($7,500.00).
(i) "Monthly Deposit" means the amount of Eleven Thousand Six Hundred
Sixty-Seven and No/100ths Dollars ($11,667.00) per month to be
deposited into the Replacement Reserve Fund in accordance with this
Agreement.
(j) "Property" means the Land and Improvements.
(k) "Replacement Reserve Deposit" means the Initial Deposit, the Monthly
Deposit and/or the Revised Monthly Deposit, as appropriate.
(l) "Replacement Reserve Fund" means the account established pursuant to
this Agreement to defray the costs of Capital Replacements.
(m) "Review Period" means the period ending 120 months after the first
monthly payment date.
(n) "Revised Monthly Deposit" means the amount per month that Lender
determines Borrower must deposit in the Replacement Reserve Fund
during any Subsequent Review Period.
(o) "Security Instrument" means the mortgage, deed of trust, deed to
secure debt, or other similar security instrument encumbering the
Property and securing Borrower's performance of its Loan
obligations.
(p) "Subsequent Review Period" means the period of 12 months commencing
either (i) at the termination of the Review Period or (ii) at the
termination of a prior Subsequent Review Period. There may be more
than one Subsequent Review Period.
2. Replacement Reserve Fund.
(a) Establishment; Funding.
(i) Upon the closing of the Loan, the parties shall establish the
Replacement Reserve Fund and, if required by Lender, Borrower
shall pay the Initial Deposit to Lender for deposit into the
Replacement Reserve Fund.
(ii) Commencing on the date the first installment of principal
and/or interest is due under the Note and continuing on the
same day of each successive month until the end of the Review
Period, Borrower shall pay the Monthly Deposit to Lender for
deposit into the Replacement Reserve Fund, together with its
regular monthly payments of principal and interest as required
by the Note and Security Instrument.
(iii) Prior to the end of the Review Period, Lender will assess the
physical condition of the Property. Lender may adjust the
Monthly Deposit at the termination of the Review Period to
reflect Lender's determination of the condition of the
Property. Upon written notice from Lender or Loan Servicer,
Borrower shall begin paying the Revised Monthly Deposit on the
first monthly payment date of the Subsequent Review Period and
shall continue paying the Revised Monthly Deposit until Lender
further adjusts the Replacement Reserve Deposit during a
Subsequent Review Period, if applicable. If Lender does not
provide Borrower with written notice of a Revised Monthly
Deposit, Borrower shall continue to pay the Monthly Deposit or
the Revised Monthly Deposit then in effect.
(b) Investment of Deposits. Borrower and Lender agree that Lender
shall hold all moneys deposited into the Replacement Reserve Fund
in an interest bearing account, and any interest earned on such
moneys shall be added to the principal balance of the Replacement
Reserve Fund and disbursed in accordance with the provisions of
this Agreement. Borrower acknowledges and agrees that it shall
not have the right to direct Lender as to any specific investment
of moneys in the Replacement Reserve Fund. Lender shall not be
responsible for any losses resulting from investment of moneys in
the Replacement Reserve Fund or for obtaining any specific level
or percentage of earnings on such investment. Lender shall be
entitled to deduct the Investment Fee from the Replacement
Reserve Fund for establishing the Replacement Reserve.
(c) Use. Subject to the pledge and security interest and other rights of
Lender set forth in this Agreement, the Replacement Reserve Fund
shall be maintained for the payment of the costs of the Capital
Replacements identified on Exhibit B.
(d) Deferral of Deposits. Notwithstanding subsections 2(a)
through (c) above, Lender defers its right to require Borrower to
make the Replacement Reserve Deposit. However, at the end of the
Review Period or any Subsequent Review Period, Lender reserves
the right to require that Borrower begin making the Replacement
Reserve Deposit if Lender reasonably determines that the physical
condition of the Property warrants that Borrower begin making
such deposit. Lender's determination to require such deposit
shall not depend on the existence of any of the events set forth
in subsection (e) below.
(e) Reinstatement of Deposits. Notwithstanding subsection 2(d) above,
Lender reserves the right to require at any time, upon written
notice to Borrower, that Borrower begin making the Replacement
Reserve Deposit if Lender reasonably determines that any of the
following events have occurred:
(i) Borrower's default under the Note, Security Instrument, or any
other document delivered in connection with the Loan, or
(ii) the occurrence of a Transfer which is prohibited under the
terms of the Security Instrument or which requires Lender's
consent, or
(iii) Borrower's failure to maintain the Property in a satisfactory
manner and/or in accordance with the requirements of the
Security Instrument.
3. Performance of Capital Replacements; Disbursements.
(a) Requests for Disbursement. Lender shall disburse funds from the
Replacement Reserve Fund, in its sole discretion, as follows: (i)
Borrower's Request. If Borrower determines, at any time or
from time to time, that a Capital Replacement is necessary or
desirable, Borrower shall perform such Capital Replacement and
request from Lender, in writing, reimbursement for such
Capital Replacement. Borrower's request for reimbursement
shall include (A) a detailed description of the Capital
Replacement performed, together with evidence, satisfactory to
Lender, that the cost of such Capital Replacement has been
paid and (B) lien waivers from each contractor and material
supplier supplying labor or materials for such Capital
Replacement, if required by Lender.
(ii) Lender's Request. If Lender shall reasonably determine at any
time or from time to time, that a Capital Replacement is
necessary for the proper maintenance of the Property, it shall
so notify Borrower, in writing, requesting that Borrower
obtain and submit to Lender bids for all labor and materials
required in connection with such Capital Replacement. Borrower
shall submit such bids and a time schedule for completing each
Capital Replacement to Lender within thirty (30) days after
Borrower's receipt of Lender's written notice. Borrower shall
perform such Capital Replacement and request from Lender, in
writing, reimbursement for such Capital Replacement.
Borrower's request for reimbursement shall include (A) a
detailed description of the Capital Replacement performed,
together with evidence, satisfactory to Lender, that the cost
of such Capital Replacement has been paid and (B) lien waivers
from each contractor and material supplier supplying labor or
materials for such Capital Replacement, if required by Lender.
(b) Conditions Precedent. Disbursement from the Replacement Reserve Fund
shall be made no more frequently than once every Disbursement Period
and, except for the final disbursement, no disbursement shall be
made in an amount less than the Minimum Disbursement Request Amount.
Disbursements shall be made only if the following conditions
precedent have been satisfied, as reasonably determined by Lender:
(i) Payment for Capital Replacement. The Capital Replacement
has been performed and/or installed on the Property in a
good and workmanlike manner with suitable materials (or in
the case of a partial disbursement, performed and/or
installed on the Property to an acceptable stage) and paid
for by Borrower as evidenced by copies of all applicable
paid invoices or bills submitted to Lender by Borrower at
the time Borrower requests disbursement from the
Replacement Reserve Fund.
(ii) No Default. There is no condition, event or act that would
constitute a default (with or without notice and/or lapse of
time) under this Agreement or any other Loan Document.
(iii) Representations and Warranties. All representations and
warranties of Borrower set forth in this Agreement and in the
Loan Documents are true in all material respects.
(iv) Continuing Compliance. Borrower is in full compliance with the
provisions of this Agreement, the other Loan Documents and any
request or demand by Lender permitted hereby.
(v) No Lien Claim. No lien or claim based on furnishing labor or
materials has been filed or asserted against the Property,
unless Borrower has properly provided bond or other security
against loss in accordance with applicable law.
(vi) Approvals. All licenses, permits, and approvals of
governmental authorities required for the Capital Replacement
as completed to the applicable stage have been obtained.
(vii) Legal Compliance. The Capital Replacement as completed to the
applicable stage does not violate any laws, ordinance, rules
or regulations, or building lines or restrictions applicable
to the Property.
4. Right to Complete Capital Replacements. If Borrower abandons or fails
to proceed diligently to undertake and/or complete any Capital
Replacement in a timely fashion or is otherwise in default under this
Agreement for 30 days after written notice of such failure by Lender to
Borrower, Lender shall have the right (but not the obligation) to enter
upon the Property and take over and cause the completion of such
Capital Replacement. However, no such notice or grace period shall
apply in the case of such failure which could, in Lender's judgment,
absent immediate exercise by Lender of a right or remedy under this
Agreement, result in harm to Lender or impairment of the security given
under the Security Instrument or any other Loan Document. Any
contracts entered into or indebtedness incurred upon the exercise of
such right may be in the name of Borrower, and Lender is hereby
irrevocably appointed the attorney in fact of Borrower, such
appointment being coupled with an interest, to enter into such
contracts, incur such obligations, enforce any contracts or agreements
made by or on behalf of Borrower (including the prosecution and defense
of all actions and proceedings in connection with the Capital
Replacement and the payment, settlement or compromise of all bills and
claims for materials and work performed in connection with the Capital
Replacement) and do any and all things necessary or proper to complete
any Capital Replacement including signing Borrower's name to any
contracts and documents as may be deemed necessary by Lender. In no
event shall Lender be required to expend its own funds to complete any
Capital Replacement, but Lender may, in its sole discretion, advance
such funds. Any funds advanced shall be added to the outstanding
balance of the Loan, secured by the Security Instrument and payable to
Lender by Borrower in accordance with the provisions of the Security
Instrument pertaining to the protection of Lender's security and
advances made by Lender. Borrower waives any and all claims it may
have against Lender for materials used, work performed or resultant
damage to the Property.
5. Inspection. Lender or any representative of Lender may periodically
inspect any Capital Replacement in process and upon completion during
normal business hours or at any other reasonable time upon reasonable
prior written notice to Borrower (except in an emergency, as determined
by Lender in its discretion or after an Event of Default, in which
event no such prior notice shall be require). Lender shall be entitled
to deduct the Inspection Fee from the Replacement Reserve Fund for
performing any such inspection. If Lender, in its sole discretion,
retains a professional inspection engineer or other qualified third
party to inspect any Capital Replacement, Lender also shall be entitled
to deduct from the Replacement Reserve Fund an amount sufficient to pay
all reasonable fees and expenses charged by such third party inspector.
6. Insufficient Account. If Borrower requests disbursement from the
Replacement Reserve Fund for a Capital Replacement in accordance with this
Agreement in an amount which exceeds the amount on deposit in the
Replacement Reserve Fund, Lender shall disburse to Borrower only the
amount on deposit in the Replacement Reserve Fund. Borrower shall pay all
additional amounts required in connection with any such Capital
Replacement from Borrower's own funds.
7. Security Agreement. To secure Borrower's obligations under this
Agreement and to further secure Borrower's obligations under the Note,
Security Instrument and other Loan Documents, Borrower hereby conveys,
pledges, transfers and grants to Lender a security interest pursuant to
the Uniform Commercial Code of the Property Jurisdiction or any other
applicable law in and to all money in the Replacement Reserve Fund, as
same may increase or decrease from time to time, all interest and
dividends thereon and all proceeds thereof.
8. Post Default. If Borrower defaults in the performance of its
obligations under this Agreement or under the Note, Security Instrument
or any other Loan Document, after the expiration of any applicable
notice or cure period, Lender shall have all remedies available to them
under Article 9 of the Uniform Commercial Code of the Property
Jurisdiction and under any other applicable law. In addition, Lender
may retain all money in the Replacement Reserve Fund, including
interest, and in Lender's discretion, may apply such amounts, without
restriction and without any specific order of priority, to the payment
of any and all indebtedness or obligations of Borrower set forth in the
Note, Security Instrument or any other Loan Document, including, but
not limited to, principal, interest, taxes, insurance, reasonable
attorneys' fees and costs (including those of Lender's in-house
counsel) and disbursements actually incurred and/or repairs to the
Property.
9. Termination. If not sooner terminated by written concurrence of the
parties, this Agreement shall terminate upon the payment in full of the
Loan and all indebtedness incurred in connection therewith and upon such
termination, Lender shall pay to Borrower all funds remaining in the
Replacement Reserve Fund.
10. No Amendment. Nothing contained in this Agreement shall be construed to
amend, modify, alter, change or supersede the terms and provisions of the
Note, Security Instrument or any other Loan Document; and, if there is a
conflict between the terms and provisions of this Agreement and those of
the Note, Security Instrument, or any other Loan Document then the terms
and provisions of the Note, Security Instrument or such other Loan
Document shall control.
11. Release; Indemnity.
(a) Release. Borrower covenants and agrees that, in performing any
of its duties under this Agreement, none of Lender, any Loan
Servicer, or any of their respective agents or employees shall be
liable for any losses, claims, damages, liabilities and expenses
that may be incurred by any of them as a result of such
performance, except that no such party will be released from
liability for any losses, claim, damages, liabilities or expenses
arising out of the willful misconduct or gross negligence of such
party.
(b) Indemnity. Borrower hereby agrees to indemnify and hold harmless
Lender, Loan Servicer and their respective agents and employees
against any and all losses, claims, damages, liabilities and
expenses including, without limitation, reasonable attorneys'
fees and costs (including those of Lender's in-house counsel) and
disbursements, which may be imposed or incurred by any of them in
connection with this Agreement except that no such party will be
indemnified from liability for any losses, claims, damages,
liabilities or expenses arising out of the willful misconduct or
gross negligence of such party.
12. Choice of Law. This Agreement shall be construed and enforced in
accordance with the laws of the Property Jurisdiction.
13. Successors and Assigns. Lender may assign its rights and interests
under this Agreement in whole or in part and upon any such assignment,
all the terms and provisions of this Agreement shall inure to the
benefit of such assignee to the extent so assigned. The terms used to
designate any of the parties herein shall be deemed to include the
heirs, legal representatives, successors and assigns of such parties;
and the term "Lender" shall also include any lawful owner, holder or
pledgee of the Note. Reference herein to "person" or "persons" shall
be deemed to include individuals and entities. Borrower may not assign
or delegate its rights, interests, or obligations under this Agreement
without first obtaining Lender's prior written consent.
14. Attorneys' Fees. In the event that Lender engages the services of an
attorney at law to enforce the provisions of this Agreement against
Borrower, then Borrower shall pay all costs of such enforcement, including
any reasonable attorneys' fees and costs (including those of Lender's
in-house counsel) and disbursements actually incurred.
15. Compliance with Laws; Insurance Requirements.
(a) Compliance with Laws. Borrower shall ensure that all Capital
Replacements comply with all applicable laws, ordinances, rules and
regulations of all governmental authorities having jurisdiction over
the Property and applicable insurance requirements including,
without limitation, applicable building codes, special use permits,
environmental regulations, and requirements of insurance
underwriters.
(b) Insurance Requirements. In addition to any insurance required
under the Loan Documents, Borrower shall provide or cause to be
provided workers' compensation, builder's risk (if required by
Lender), and public liability insurance and other insurance
required under applicable law in connection with any of the
Capital Replacements. All such policies that can be endorsed
with standard mortgage clauses making losses payable to Lender or
its assigns shall be so endorsed. The originals of such policies
shall be deposited with Loan Servicer.
16. Remedies Cumulative. In the event of Borrower's default under this
Agreement, Lender may exercise all or any one or more of its rights and
remedies available under this Agreement, at law or in equity. Such
rights and remedies shall be cumulative and concurrent, and may be
enforced separately, successively or together, and Lender's exercise of
any particular right or remedy shall not in any way prevent Lender from
exercising any other right or remedy available to Lender. Lender may
exercise any such remedies from time to time as often as Lender chooses.
17. Determinations by Lender. Unless otherwise provided in this Agreement,
in any instance where the consent or approval of Lender may be given or
is required, or where any determination, judgment or decision is to be
rendered by Lender under this Agreement, the granting, withholding or
denial of such consent or approval and the rendering of such
determination, judgment or decision shall be made or exercised by
Lender (or its designated representative) at its sole and exclusive
option and in its sole and absolute discretion.
18. Completion of Capital Replacements. Lender's disbursement of moneys
from the Replacement Reserve Fund or other acknowledgment of completion
of any Capital Replacement in a manner satisfactory to Lender shall not
be deemed a certification by Lender that the Capital Replacement has
been completed in accordance with applicable building, zoning or other
codes, ordinances, statutes, laws, regulations or requirements of any
governmental authority or agency. Borrower shall at all times have the
sole responsibility for ensuring that all Capital Replacements are
completed in accordance with all such governmental requirements.
19. No Agency or Partnership. Nothing contained in this Agreement shall
constitute Lender as a joint venturer, partner or agent of Borrower, or
render Lender liable for any debts, obligations, acts, omissions,
representations or contracts of Borrower.
20. Entire Agreement. This Agreement and the other Loan Documents
represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral
agreements. There are no oral agreements between the parties. All
prior or contemporaneous agreements, understandings, representations
and statements, oral or written, are merged into this Agreement and the
other Loan Documents. Neither this Agreement nor any of its provisions
may be waived, modified, amended, discharged or terminated except in
writing signed by the party against which the enforcement of the
waiver, modification, amendment, discharge or termination is sought,
and then only to the extent set forth in writing; provided, however,
that in the event of a Transfer requiring Lender's consent under the
terms of the Security Instrument, one or more or all of the
Modifications to Agreement set forth in Exhibit C (if any) may be
modified or rendered void by Lender at Lender's option by notice to
Borrower/transferee.
21. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original document and all of which
together shall constitute one agreement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
ATTACHED EXHIBITS. The following Exhibits are attached to this
Agreement:
|X | Exhibit A Legal Description of the Land (required)
|X | Exhibit B Capital Replacements (required)
|X | Exhibit C Modifications to Agreement
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first written above.
BORROWER:
CENTURY PROPERTIES FUND XIX
a California limited partnership
By: Fox Partners II
a California general partnership
General Partner
By: Fox Capital Management Corporation
a California corporation
Managing Partner
By: /s/Patti K. Fielding
Patti K. Fielding
Executive Vice President
Taxpayer Identification No.: 94-2887133
LENDER:
KEYCORP REAL ESTATE CAPITAL
MARKETS, INC.
an Ohio corporation
By: /s/Janette M. O'Brien
Janette M. O'Brien
Vice President
Exhibit 10.18
REPAIR ESCROW AGREEMENT
(REVISION DATE 01-31-2003)
(FHLMC Loan No. 180552724)
This REPAIR ESCROW AGREEMENT ("Agreement") is made and entered into, to be
effective as of June 25, 2003, by and between CENTURY PROPERTIES FUND XIX, a
California limited partnership ("Borrower"), and KEYCORP REAL ESTATE CAPITAL
MARKETS, INC., an Ohio corporation ("Lender") and its successors and assigns.
W I T N E S S E T H:
WHEREAS, Lender has agreed to make and Borrower has agreed to accept the
Loan, which is to be evidenced by the Note and secured by the Security
Instrument encumbering the Land described on Exhibit "A" attached to this
Agreement;
WHEREAS, as a condition of making the Loan, Lender is requiring Borrower
to make the Repairs to the Improvements, which Repairs are generally described
in the Schedule of Work attached to this Agreement as Exhibit "B"; and
WHEREAS, in order to assure that the Repairs are made and paid for in a
timely manner, Lender is requiring Borrower to establish the Repair Escrow Fund
with Lender pursuant to the terms of this Agreement.
NOW, THEREFORE, for and in consideration of the Loan, the mutual promises
and covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lender and Borrower
agree as follows:
1. Definitions. The following terms used in this Agreement shall have the
meanings set forth below in this Section. Any term used in this Agreement
and not defined shall have the meaning given to that term in the Security
Instrument.
(a) "Completion Date" means the date that is 90 days after the effective
date of this Agreement or, September 24, 2003.
(b) "Disbursement Request" means Borrower's written requests to Lender
in the form attached to this Agreement as Exhibit "C" for the
disbursement of money from the Repair Escrow Fund pursuant to
Section 3 below, which requests shall not be made more often than
once every thirty (30) days during the term of this Agreement.
(c) "Improvements" means the buildings and improvements situated upon
the Land, currently constituting a multifamily apartment project
known as Vinings Peak Apartments.
(d) "Loan" means the loan from Lender to Borrower in the original
principal amount of Eight Million Four Hundred Seventy Thousand and
No/100ths Dollars ($8,470,000.00), as evidenced by the Note and
secured by the Security Instrument.
(e) "Minimum Disbursement Request Amount" means Seven Thousand Five
Hundred and No/100ths Dollars ($7,500.00).
(f) "Property" means the Land and Improvements.
(g) "Repairs" means the repairs to be made to the Property , as
described on the Schedule of Work or as otherwise required by Lender
in accordance with this Agreement.
(h) "Repair Escrow Deposit" means the sum of Three Hundred Thirty-Four
Thousand Thirty-Three and No/100ths Dollars ($334,033.00) deposited
into escrow with Lender as of the effective date of this Agreement,
together with interest, if any, to be held in accordance with the
provisions of this Agreement.
(i) "Repair Escrow Fund" means the account established by this Agreement
into which the Repair Escrow Deposit is deposited.
(j) "Schedule of Work" means the schedule of work for the Repairs
attached to this Agreement as Exhibit "B".
(k) "Security Instrument" means the mortgage, deed of trust, deed to
secure debt, or other similar security instrument encumbering the
Property and securing Borrower's performance of its Loan
obligations.
2. Repair Escrow Fund.
(a) Establishment. Lender acknowledges that Borrower has established
the Repair Escrow Fund by depositing the amount of the Repair
Escrow Deposit with Lender. Borrower and Lender agree that all
moneys deposited into the Repair Escrow Fund shall be held by
Lender in an interest bearing account if Lender estimates that
the Repairs will require longer than ninety (90) days to
complete. Lender shall not be required to hold the Repair Escrow
Deposit in an interest bearing account if the Repairs are
required to be completed in ninety (90) days or less. Any
interest earned on such moneys shall be added to the principal
balance of the Repair Escrow Fund and disbursed in accordance
with the provisions of this Agreement. Lender shall be entitled
to deduct from the Repair Escrow Fund a one- time fee in the
amount of Five Hundred and No/100ths Dollars ($500.00) for
establishing the Repair Escrow Fund. Lender shall not be
responsible for any losses resulting from investment of moneys in
the Repair Escrow Fund or for obtaining any specific level or
percentage of earnings on such investment.
(b) Use. The Repair Escrow Deposit shall, except as otherwise stated in
this Agreement, be used for the purpose of paying, or reimbursing
Borrower for, the costs of the Repairs.
3. Disbursements. From time to time, as construction and completion of
the Repairs progresses, upon Borrower's submission of a Disbursement
Request in the form attached to this Agreement as Exhibit C, and
provided that Borrower is in full compliance with all the applicable
conditions set forth in this Agreement and in the other Loan Documents,
Lender shall make disbursements from the Repair Escrow Fund for payment
or reimbursement of the actual costs of the Repairs. Borrower must
sign the Borrower's Disbursement Request and Borrower must include
with its Disbursement Request a report setting out the progress of the
Repairs and any other reports or information relating to the
construction of the Repairs that may be reasonably requested by
Lender. Borrower must include with each Disbursement Request copies
of any applicable invoices and/or bills and appropriate lien waivers
for the prior period for which disbursement was made, executed by all
contractors and suppliers supplying labor or materials for the
Repairs. Unless waived by Lender in writing, Borrower must also
include a report prepared by the professional engineer employed by
Lender as to the status of the Repairs. Except for the final
Disbursement Request, no Disbursement Request shall be for an amount
less than the Minimum Disbursement Request Amount.
4. Reporting Requirements; Completion. Prior to receiving the final
disbursement from the Repair Escrow Fund, Borrower must deliver to Lender,
in addition to the information required by Section 3 above, the following:
(a) Contractor's Certificate. A certificate signed by each major
contractor and supplier of materials, as reasonably determined by
Lender, engaged to provide labor or materials for the Repairs to
the effect that such contractor or supplier has been paid in full
for all work completed and that the portion of the Repairs
provided by such contractor or supplier has been fully completed
in accordance with the plans and specifications (if any) provided
to it by Borrower and that such portion of the Repairs is in
compliance with all applicable building codes and other rules and
regulations promulgated by applicable regulatory or governmental
authorities;
(b) Borrower's Certificate. A certificate signed by Borrower to the
effect that the Repairs have been fully paid for, that all money
disbursed hereunder has been used for the Repairs and no claim or
claims exist against the Borrower or against the Property out of
which a lien based on furnishing labor or material exists or
might ripen. Borrower may except from the certificate described
in the preceding sentence any claim or claims that Borrower
intends to contest, provided that any such claim or claims are
described in Borrower's certificate and Borrower certifies to
Lender that the money in the Repair Escrow Fund is sufficient to
make payment of the full amount which might in any event be
payable in order to satisfy such claim or claims. If required by
Lender, Borrower also shall certify to Lender that such portion
of the Repairs is in compliance with all applicable zoning
ordinances;
(c) Engineer's Certificate. A certificate signed by the professional
engineer employed by Lender to the effect that the Repairs have been
completed in a good and workmanlike manner in compliance with the
Schedule of Work and all applicable building codes, zoning
ordinances and other rules and regulations promulgated by applicable
regulatory or governmental authorities; and
(d) Other Certificates. Any other certificates of approval, acceptance
or compliance required by Lender from or by the city, county, state
or federal governmental authorities having jurisdiction over the
Property and the Repairs.
5. Indirect and Excess Disbursements. Lender, in its sole judgment, is
authorized to hold, use and disburse from the Repair Escrow Fund to pay
any and all costs, charges and expenses whatsoever and howsoever
incurred or required in connection with the construction and completion
of the Repairs, or in the payment or performance of any obligation of
Borrower to Lender. If Lender, for purposes specified in this Section
5, shall elect to pay any portion of the money in the Repair Escrow
Fund to parties other than Borrower, then Lender may do so, at any time
and from time to time, and the amount of advances to which Borrower
shall be entitled under this Agreement shall be correspondingly reduced.
6. Schedule of Work. All disbursements from the Repair Escrow Fund shall be
limited to the costs of those items set forth on the Schedule of Work
attached to this Agreement as Exhibit "B".
7. Repairs. Borrower covenants and agrees with Lender as follows:
(a) Commencement of Work. Except as set forth on Exhibit D, prior to
the recordation of the Security Instrument, no work of any kind
has been or will be commenced or performed upon the Property and
no materials or equipment have been or will be delivered to or
upon the Property. In the event that any work of any kind has
been commenced or performed upon the Property, or in the event
that any materials or equipment have been ordered or delivered to
or upon the Property, then (i) prior to the execution of the
Security Instrument the Borrower shall fully disclose in writing
to the title insurance company issuing the mortgagee title
insurance policy insuring the lien of the Security Instrument
that work has been commenced or performed on the Property, or
materials or equipment have been ordered or delivered to or upon
the Property, (ii) prior to the execution of the Security
Instrument Borrower shall have obtained and delivered to Lender
and the title company issuing the mortgagee title insurance
policy insuring the lien of the Security Instrument lien waivers
from all contractors, subcontractors, suppliers, or any other
applicable party, pertaining to all work commenced or performed
on the Property, or materials or equipment ordered or delivered
to or upon the Property, and (iii) the final mortgagee's title
insurance policy insuring the lien of the Security Instrument
shall take no exception from coverage for any mechanics or
materialmen's liens.
(b) Construction. Borrower will commence the Repairs as soon as
practicable after the date of this Agreement and will diligently
proceed with and complete the Repairs on or before the Completion
Date in a workmanlike manner and in accordance with the Schedule of
Work, good building practices and all applicable laws, ordinances,
rules and regulations.
(c) Changes in Schedule of Work. Without the prior written consent of
Lender, Borrower will make no departures from or alterations to the
Schedule of Work.
(d) Inspections. Borrower will permit Lender or any person
designated by Lender (including without limitation a professional
inspection engineer) and any interested governmental authority,
at any time and from time to time, to inspect the Repairs and
Improvements and to examine and copy all of Borrower's books and
records and all contracts and bills pertaining to the Repairs and
Improvements. Lender shall be entitled to deduct from the Repair
Escrow Fund reasonable fees for performing any such inspections
and/or an amount sufficient to reimburse Lender for all fees and
expenses charged by any professional inspection engineer employed
by Lender in connection with any such inspection. Borrower
agrees to cause the replacement of any material or work that is
defective, unworkmanlike, does not comply with any applicable
law, ordinance, rule or regulation, or does not comply with the
requirements of this Agreement, as determined by Lender. Prior
to and as a condition of the final disbursement of funds from the
Repair Escrow Fund, Lender shall inspect or cause to be inspected
the Repairs and the Improvements to determine that all Repairs,
including but not limited to interior and exterior repairs, have
been completed in a manner acceptable to Lender.
(e) Purchases. Without the prior written consent of Lender, no
materials, machinery, equipment, fixtures or any other part of
the Repairs shall be purchased or installed under conditional
sale contracts or lease agreements, or any other arrangement
wherein title to such Repairs is retained or subjected to a
purchase money security interest, or the right is reserved or
accrues to anyone to remove or repossess any such Repairs, or to
consider them as personal property.
8. Lien Protection. Borrower shall promptly pay or cause to be paid, when
due, all costs, charges and expenses incurred in connection with the
construction and completion of the Repairs, and shall keep the Property
free and clear of any and all liens other than the lien of the Security
Instrument and any other junior lien which may be consented to by Lender.
9. Adverse Claims. Borrower shall promptly advise Lender in writing of any
litigation, liens, or claims affecting the Property and of all complaints
and charges made by any governmental authority or any governmental
department, bureau, commission or agency exercising supervision or control
over Borrower or its business, which may delay or adversely affect the
Repairs.
10. Compliance With Laws; Insurance Requirements.
(a) Compliance With Laws. All Repairs shall comply with all applicable
laws, ordinances, rules and regulations of all governmental
authorities having jurisdiction over the Property, and with all
applicable insurance requirements including, without limitation,
applicable building codes, special use permits, environmental
regulations, and requirements of insurance underwriters.
(b) Insurance Requirements. In addition to any insurance required
under the Loan Documents, Borrower shall provide or cause to be
provided workers' compensation, builder's risk (if required by
Lender), and public liability insurance and other insurance
required under applicable law in connection with any of the
Repairs. All such policies shall be in form and amount
satisfactory to Lender. All such policies that can be endorsed
with standard mortgage clauses making losses payable to Lender or
its assigns shall be so endorsed. The originals of such policies
shall be deposited with Lender.
11. Use of Repair Escrow Fund. Borrower will accept disbursements from the
Repair Escrow Fund in accordance with the provisions of this Agreement and
will use, or cause to be used, each such disbursement solely to pay for
materials, labor and services, or to pay costs and expenses for which such
disbursement is requested.
12. Conditions Precedent. Lender shall not be obligated to make any
disbursement from the Repair Escrow Fund to or for the benefit of Borrower
unless at the time of each Disbursement Request all of the following
conditions prevail:
(a) No Default. There shall exist no condition, event or act that would
constitute a default (with or without notice and/or lapse of time)
under this Agreement or any other Loan Document.
(b) Representations and Warranties. All representations and warranties
of Borrower set forth in this Agreement and in the Loan Documents
are true.
(c) Continuing Compliance. Borrower shall be in full compliance with the
provisions of this Agreement, the other Loan Documents and any
request or demand by Lender permitted hereby.
(d) No Lien Claim. No lien or claim based on furnishing labor or
materials has been filed or asserted against the Property, unless
Borrower has properly provided bond or other security against loss
in accordance with applicable law.
(e) Approvals. All licenses, permits, and approvals of governmental
authorities required for the Repairs as completed to the applicable
stage have been obtained.
(f) Legal Compliance. The Repairs as completed to the applicable stage
do not violate any laws, ordinances, rules or regulations, or
building lines or restrictions applicable to the Property.
13. Right to Complete Repairs. If Borrower abandons or fails to proceed
diligently with the Repairs or otherwise is in default under this
Agreement, Lender shall have the right (but not the obligation) to
enter upon the Property and take over and cause the completion of the
Repairs. Any contracts entered into or indebtedness incurred upon the
exercise of such right may be in the name of Borrower, and Lender is
hereby irrevocably appointed the attorney in fact of Borrower, such
appointment being coupled with an interest, to enter into such
contracts, incur such obligations, enforce any contracts or agreements
made by or on behalf of Borrower (including the prosecution and defense
of all actions and proceedings in connection with the Repairs and the
payment, settlement, or compromise of all claims for materials and work
performed in connection with the Repairs) and do any and all things
necessary or proper to complete the Repairs including signing
Borrower's name to any contracts and documents as may be deemed
necessary by Lender. In no event shall Lender be required to expend
its own funds to complete the Repairs, but Lender may, in Lender's sole
discretion, advance such funds. Any funds advanced shall be added to
the outstanding balance of the Note, secured by the Security Instrument
and payable to Lender by Borrower in accordance with the provisions of
the Security Instrument pertaining to the protection of Lender's
security and advances made by Lender. Borrower waives any and all
claims it may have against Lender for materials used, work performed or
resultant damage to the Property.
14. Insufficient Account. If Lender determines in its reasonable discretion
that the money in the Repair Escrow Fund is insufficient to pay for the
Repairs, Lender shall so notify Borrower, in writing, and as soon as
possible (but in no event later than twenty (20) days after such notice)
Borrower shall pay to Lender an amount, in cash, equal to such deficiency,
which amount shall be placed in the Repair Escrow Fund by Lender.
15. Security Agreement. To secure Borrower's obligations under this
Agreement and to further secure Borrower's obligations under the Note,
Security Instrument and other Loan Documents, Borrower hereby conveys,
pledges, transfers and grants to Lender a security interest pursuant to
the Uniform Commercial Code of the Jurisdiction and other applicable
laws in and to all money in the Repair Escrow Fund as such may increase
or decrease from time to time, and all interest and dividends thereon
and all proceeds thereof.
16. Post Default. If Borrower defaults in the performance of its
obligations under this Agreement or under the Note, Security Instrument
or any other Loan Document, Lender shall have all remedies available
to them under Article 9 of the Uniform Commercial Code of the
Jurisdiction and under any other applicable laws and, in addition, may
retain all moneys in the Repair Escrow Fund, including interest, and in
Lender's discretion, may apply such amounts, without restriction and
without any specific order of priority, to the payment of any and all
indebtedness or obligations of Borrower set forth in the Note, Security
Instrument or other Loan Documents, including, but not limited to,
principal, interest, taxes, insurance, reasonable attorneys' fees
actually incurred and/or repairs to the Property.
17. Termination. This Agreement shall terminate upon the completion of the
Repairs in accordance with this Agreement and Lender's satisfaction, and
the full disbursement by Lender of the Repair Escrow Fund. In the event
there are funds remaining in the Repair Escrow Fund after the Repairs have
been completed in accordance with this Agreement, and provided no default
by Borrower exists under this Agreement or under any other Loan Documents,
such funds remaining in the Repair Escrow Fund shall be refunded by Lender
to the Borrower.
18. No Amendment. Nothing contained in this Agreement shall be construed to
amend, modify, alter, change or supersede the terms and provisions of the
Note, Security Instrument or any other Loan Document and, if there shall
exist a conflict between the terms and provisions of this Agreement and
those of the Note, Security Instrument or other Loan Documents, then the
terms and provisions of the Note, Security Instrument and other Loan
Documents shall control.
19. Release; Indemnity.
(a) Release. Borrower covenants and agrees that, in performing any of
its duties under this Agreement, none of Lender, and Loan Servicer
or any of their respective agents or employees, shall be liable for
any losses, costs or damages which may be incurred by any of them as
a result thereof, except that no party will be released from
liability for any losses, costs or damages arising out of the
willful misconduct or gross negligence of such party.
(b) Indemnity. Borrower hereby agrees to indemnify and hold harmless
Lender, Loan Servicer, and their respective agents and employees,
against any and all losses, claims, damages, liabilities and
expenses including, without limitation, reasonable attorneys'
fees and costs, which may be imposed or incurred by any of them
in connection with this Agreement, except that no such party will
be indemnified from any losses, claims, damages, liabilities and
expenses arising out of the willful misconduct or gross
negligence of such party.
20. Choice of Law. This Agreement shall be construed and enforced in
accordance with the laws of the Property Jurisdiction.
21. Successors and Assigns. Lender may assign its rights and interests
under this Agreement in whole or in part and upon any such assignment,
all the terms and provisions of this Agreement shall inure to the
benefit of such assignee to the extent so assigned. The terms used to
designate any of the parties herein shall be deemed to include the
heirs, legal representatives, successors and assigns of such parties;
and the term "Lender" shall also include any lawful owner, holder or
pledgee of the Note. Reference herein to "person" or "persons" shall
be deemed to include individuals and entities. Borrower may not assign
its rights, interests, or obligations under this Agreement without
first obtaining Lender's prior written consent.
22. Attorneys' Fees. In the event that Lender shall engage the services of an
attorney at law to enforce the provisions of this Agreement against
Borrower, then Borrower shall pay all costs of such enforcement, including
any reasonable attorneys' fees and costs (including those of Lender's
in-house counsel) actually incurred.
23. Remedies Cumulative. In the event of Borrower's default under this
Agreement, Lender may exercise all or any one or more of its rights and
remedies available under this Agreement, at law or in equity. Such
rights and remedies shall be cumulative and concurrent, and may be
enforced separately, successively or together, and Lender's exercise of
any particular right or remedy shall not in any way prevent Lender from
exercising any other right or remedy available to Lender. Lender may
exercise any such remedies from time to time as often as may be deemed
necessary by Lender.
24. Determinations by Lender. In any instance where the consent or
approval of Lender may be given or is required, or where any
determination, judgment or decision is to be rendered by Lender under
this Agreement, the granting, withholding or denial of such consent or
approval and the rendering of such determination, judgment or decision
shall be made or exercised by Lender (or its designated representative)
at its sole and exclusive option and in its sole and absolute
discretion.
25. Completion of Repairs. Lender's disbursement of moneys in the Repair
Escrow Fund or other acknowledgment of completion of any Repair in a
manner satisfactory to Lender shall not be deemed a certification by
Lender that the Repair has been completed in accordance with applicable
building, zoning or other codes, ordinances, statutes, laws,
regulations or requirements of any governmental authority or agency.
Borrower shall at all times have the sole responsibility for insuring
that all Repairs are completed in accordance with all such governmental
requirements.
26. No Agency or Partnership. Nothing contained in this Agreement shall
constitute Lender as a joint venturer, partner or agent of Borrower, or
render Lender liable for any debts, obligations, acts, omissions,
representations or contracts of Borrower.
27. Entire Agreement. This Agreement and the other Loan Documents
represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral
agreements. There are no unwritten oral agreements between the
parties. All prior or contemporaneous agreements, understandings,
representations, and statements, oral or written, are merged into this
Agreement and the other Loan Documents. Neither this Agreement nor any
of its provisions may be waived, modified, amended, discharged, or
terminated except in writing signed by the party against which the
enforcement of the waiver, modification, amendment, discharge, or
termination is sought, and then only to the extent set forth in that
writing; provided, however, that in the event of a Transfer requiring
Lender's consent under the terms of the Security Instrument, any one or
more, or all, of the Modifications to Agreement set forth in Exhibit
"E" (if any) may be modified or rendered void by Lender at Lender's
option by notice to Borrower/transferee.
28. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original document and all of which
together shall constitute one agreement.
ATTACHED EXHIBITS. The following Exhibits are attached to this
Agreement:
|X | Exhibit A Legal Description of Land (required)
|X | Exhibit B Schedule of Work (required)
|X | Exhibit C Disbursement Request (required)
|X | Exhibit D Work Performed or Commenced and Material or
Equipment Ordered (required, if none, state "NONE")
| | Exhibit E Modifications to Agreement
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
BORROWER:
CENTURY PROPERTIES FUND XIX
a California limited partnership
By: Fox Partners II
a California general partnership
General Partner
By: Fox Capital Management Corporation
a California corporation
Managing Partner
By: /s/Patti K. Fielding
Patti K. Fielding
Executive Vice President
Taxpayer Identification No.: 94-2887133
LENDER:
KEYCORP REAL ESTATE CAPITAL
MARKETS, INC.
an Ohio corporation
By: /s/Janette M. O'Brien
Janette M. O'Brien
Vice President
Exhibit 10.19
Freddie Mac Loan No. 002703483
MULTIFAMILY NOTE
(MULTISTATE - REVISION DATE 11-01-2000)
US $7,500,000.00 as of June 25, 2003
FOR VALUE RECEIVED, the undersigned ("Borrower") jointly and severally (if
more than one) promises to pay to the order of KEYCORP REAL ESTATE CAPITAL
MARKETS, INC., an Ohio corporation, the principal sum of Seven Million Five
Hundred Thousand and No/100ths Dollars (US $7,500,000.00), with interest on the
unpaid principal balance at the annual rate of four and forty-one one-hundredths
percent (4.41%).
1. Defined Terms. As used in this Note, (i) the term "Lender" means the
holder of this Note, and (ii) the term "Indebtedness" means the principal of,
interest on, and any other amounts due at any time under, this Note, the
Security Instrument or any other Loan Document, including prepayment premiums,
late charges, default interest, and advances to protect the security of the
Security Instrument under Section 12 of the Security Instrument. "Event of
Default" and other capitalized terms used but not defined in this Note shall
have the meanings given to such terms in the Security Instrument.
2. Address for Payment. All payments due under this Note shall be payable
at Key Commercial Mortgage, PO Box 145404, Cincinnati, OH 45250, or such other
place as may be designated by written notice to Borrower from or on behalf of
Lender.
3. Payment of Principal and Interest. Principal and interest shall be paid
as follows:
(a) Unless disbursement of principal is made by Lender to Borrower on the
first day of the month, interest for the period beginning on the date of
disbursement and ending on and including the last day of the month in which such
disbursement is made shall be payable simultaneously with the execution of this
Note. Interest under this Note shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
(b) Consecutive monthly installments of principal and interest, each in
the amount of Forty-Seven Thousand Eighty-Five and 12/100ths Dollars (US
$47,085.12), shall be payable on the first day of each month beginning on August
1, 2003, until the entire unpaid principal balance evidenced by this Note is
fully paid.
(c) Any accrued interest remaining past due for 30 days or more may, at
Lender's discretion, be added to and become part of the unpaid principal balance
and shall bear interest at the rate or rates specified in this Note, and any
reference below to "accrued interest" shall refer to accrued interest which has
not become part of the unpaid principal balance. Any remaining principal and
interest shall be due and payable on July 1, 2013 or on any earlier date on
which the unpaid principal balance of this Note becomes due and payable, by
acceleration or otherwise (the "Maturity Date"). The unpaid principal balance
shall continue to bear interest after the Maturity Date at the Default Rate set
forth in this Note until and including the date on which it is paid in full.
(d) Any regularly scheduled monthly installment of principal and interest
that is received by Lender before the date it is due shall be deemed to have
been received on the due date solely for the purpose of calculating interest
due.
4. Application of Payments. If at any time Lender receives, from Borrower
or otherwise, any amount applicable to the Indebtedness which is less than all
amounts due and payable at such time, Lender may apply that payment to amounts
then due and payable in any manner and in any order determined by Lender, in
Lender's discretion. Borrower agrees that neither Lender's acceptance of a
payment from Borrower in an amount that is less than all amounts then due and
payable nor Lender's application of such payment shall constitute or be deemed
to constitute either a waiver of the unpaid amounts or an accord and
satisfaction.
5. Security. The Indebtedness is secured, among other things, by a
multifamily mortgage, deed to secure debt or deed of trust dated as of the date
of this Note (the "Security Instrument"), and reference is made to the Security
Instrument for other rights of Lender as to collateral for the Indebtedness.
6. Acceleration. If an Event of Default has occurred and is continuing,
the entire unpaid principal balance, any accrued interest, the prepayment
premium payable under Paragraph 10, if any, and all other amounts payable under
this Note and any other Loan Document shall at once become due and payable, at
the option of Lender, without any prior notice to Borrower (except if notice is
required by applicable law, then after such notice). Lender may exercise this
option to accelerate regardless of any prior forbearance.
7. Late Charge. If any monthly amount payable under this Note or under the
Security Instrument or any other Loan Document is not received by Lender within
ten (10) days after the amount is due (unless applicable law requires a longer
period of time before a late charge may be imposed, in which event such longer
period shall be substituted), Borrower shall pay to Lender, immediately and
without demand by Lender, a late charge equal to five percent (5%) of such
amount (unless applicable law requires a lesser amount be charged, in which
event such lesser amount shall be substituted). Borrower acknowledges that its
failure to make timely payments will cause Lender to incur additional expenses
in servicing and processing the loan evidenced by this Note (the "Loan"), and
that it is extremely difficult and impractical to determine those additional
expenses. Borrower agrees that the late charge payable pursuant to this
Paragraph represents a fair and reasonable estimate, taking into account all
circumstances existing on the date of this Note, of the additional expenses
Lender will incur by reason of such late payment. The late charge is payable in
addition to, and not in lieu of, any interest payable at the Default Rate
pursuant to Paragraph 8.
8. Default Rate. So long as (a) any monthly installment under this Note
remains past due for thirty (30) days or more, or (b) any other Event of Default
has occurred and is continuing, interest under this Note shall accrue on the
unpaid principal balance from the earlier of the due date of the first unpaid
monthly installment or the occurrence of such other Event of Default, as
applicable, at a rate (the "Default Rate") equal to the lesser of four (4)
percentage points above the rate stated in the first paragraph of this Note and
the maximum interest rate which may be collected from Borrower under applicable
law. If the unpaid principal balance and all accrued interest are not paid in
full on the Maturity Date, the unpaid principal balance and all accrued interest
shall bear interest from the Maturity Date at the Default Rate. Borrower also
acknowledges that its failure to make timely payments will cause Lender to incur
additional expenses in servicing and processing the Loan, that, during the time
that any monthly installment under this Note is delinquent for more than thirty
(30) days, Lender will incur additional costs and expenses arising from its loss
of the use of the money due and from the adverse impact on Lender's ability to
meet its other obligations and to take advantage of other investment
opportunities, and that it is extremely difficult and impractical to determine
those additional costs and expenses. Borrower also acknowledges that, during the
time that any monthly installment under this Note is delinquent for more than
thirty (30) days or any other Event of Default has occurred and is continuing,
Lender's risk of nonpayment of this Note will be materially increased and Lender
is entitled to be compensated for such increased risk. Borrower agrees that the
increase in the rate of interest payable under this Note to the Default Rate
represents a fair and reasonable estimate, taking into account all circumstances
existing on the date of this Note, of the additional costs and expenses Lender
will incur by reason of the Borrower's delinquent payment and the additional
compensation Lender is entitled to receive for the increased risks of nonpayment
associated with a delinquent loan.
9. Limits on Personal Liability.
(a) Except as otherwise provided in this Paragraph 9, Borrower shall have
no personal liability under this Note, the Security Instrument or any other Loan
Document for the repayment of the Indebtedness or for the performance of any
other obligations of Borrower under the Loan Documents, and Lender's only
recourse for the satisfaction of the Indebtedness and the performance of such
obligations shall be Lender's exercise of its rights and remedies with respect
to the Mortgaged Property and any other collateral held by Lender as security
for the Indebtedness. This limitation on Borrower's liability shall not limit or
impair Lender's enforcement of its rights against any guarantor of the
Indebtedness or any guarantor of any obligations of Borrower.
(b) Borrower shall be personally liable to Lender for the repayment of a
portion of the Indebtedness equal to zero percent (0%) of the original principal
balance of this Note, plus any other amounts for which Borrower has personal
liability under this Paragraph 9.
(c) In addition to Borrower's personal liability under Paragraph 9(b),
Borrower shall be personally liable to Lender for the repayment of a further
portion of the Indebtedness equal to any loss or damage suffered by Lender as a
result of (1) failure of Borrower to pay to Lender upon demand after an Event of
Default all Rents to which Lender is entitled under Section 3(a) of the Security
Instrument and the amount of all security deposits collected by Borrower from
tenants then in residence; (2) failure of Borrower to apply all insurance
proceeds and condemnation proceeds as required by the Security Instrument; or
(3) failure of Borrower to comply with Section 14(d) or (e) of the Security
Instrument relating to the delivery of books and records, statements, schedules
and reports.
(d) For purposes of determining Borrower's personal liability under
Paragraph 9(b) and Paragraph 9(c), all payments made by Borrower or any
guarantor of this Note with respect to the Indebtedness and all amounts received
by Lender from the enforcement of its rights under the Security Instrument shall
be applied first to the portion of the Indebtedness for which Borrower has no
personal liability.
(e) Borrower shall become personally liable to Lender for the repayment of
all of the Indebtedness upon the occurrence of any of the following Events of
Default: (1) Borrower's acquisition of any property or operation of any business
not permitted by Section 33 of the Security Instrument; (2) a Transfer
(including, but not limited to, a lien or encumbrance) that is an Event of
Default under Section 21 of the Security Instrument, other than a Transfer
consisting solely of the involuntary removal or involuntary withdrawal of a
general partner in a limited partnership or a manager in a limited liability
company; or (3) fraud or written material misrepresentation by Borrower or any
officer, director, partner, member or employee of Borrower in connection with
the application for or creation of the Indebtedness or any request for any
action or consent by Lender.
(f) In addition to any personal liability for the Indebtedness, Borrower
shall be personally liable to Lender for (1) the performance of all of
Borrower's obligations under Section 18 of the Security Instrument (relating to
environmental matters); (2) the costs of any audit under Section 14(d) of the
Security Instrument; and (3) any costs and expenses incurred by Lender in
connection with the collection of any amount for which Borrower is personally
liable under this Paragraph 9, including fees and out of pocket expenses of
attorneys and expert witnesses and the costs of conducting any independent audit
of Borrower's books and records to determine the amount for which Borrower has
personal liability.
(g) To the extent that Borrower has personal liability under this
Paragraph 9, Lender may exercise its rights against Borrower personally without
regard to whether Lender has exercised any rights against the Mortgaged Property
or any other security, or pursued any rights against any guarantor, or pursued
any other rights available to Lender under this Note, the Security Instrument,
any other Loan Document or applicable law. For purposes of this Paragraph 9, the
term "Mortgaged Property" shall not include any funds that (1) have been applied
by Borrower as required or permitted by the Security Instrument prior to the
occurrence of an Event of Default or (2) Borrower was unable to apply as
required or permitted by the Security Instrument because of a bankruptcy,
receivership, or similar judicial proceeding. To the fullest extent permitted by
applicable law, in any action to enforce Borrower's personal liability under
this Paragraph 9, Borrower waives any right to set off the value of the
Mortgaged Property against such personal liability.
10. Voluntary and Involuntary Prepayments.
(a) A prepayment premium shall be payable in connection with any
prepayment (any receipt by Lender of principal, other than principal required to
be paid in monthly installments pursuant to Paragraph 3(b), prior to the
scheduled Maturity Date set forth in Paragraph 3(c) under this Note as provided
below:
(1) Borrower may voluntarily prepay all of the unpaid principal
balance of this Note on a Business Day designated as the date for such
prepayment in a written notice from Borrower to Lender given at least 30 days
prior to the date of such prepayment. Such prepayment shall be made by paying
(A) the amount of principal being prepaid, (B) all accrued interest, (C) all
other sums due Lender at the time of such prepayment, and (D) the prepayment
premium calculated pursuant to Paragraph 10(c). For all purposes including the
accrual of interest, any prepayment received by Lender on any day other than the
last calendar day of the month shall be deemed to have been received on the last
calendar day of such month. For purposes of this Note, a "Business Day" means
any day other than a Saturday, Sunday or any other day on which Lender is not
open for business. Unless expressly provided for in the Loan Documents, Borrower
shall not have the option to voluntarily prepay less than all of the unpaid
principal balance. However, if a partial prepayment is provided for in the Loan
Documents or is accepted by Lender in Lender's discretion, a prepayment premium
calculated pursuant to Paragraph 10(c) shall be due and payable by Borrower.
(2) Upon Lender's exercise of any right of acceleration under this
Note, Borrower shall pay to Lender, in addition to the entire unpaid principal
balance of this Note outstanding at the time of the acceleration, (A) all
accrued interest and all other sums due Lender, and (B) the prepayment premium
calculated pursuant to Paragraph 10(c).
(3) Any application by Lender of any collateral or other security to
the repayment of any portion of the unpaid principal balance of this Note prior
to the Maturity Date and in the absence of acceleration shall be deemed to be a
partial prepayment by Borrower, requiring the payment to Lender by Borrower of a
prepayment premium.
(b) Notwithstanding the provisions of Paragraph 10(a), no prepayment
premium shall be payable with respect to (A) any prepayment made during the
period from zero (0) days before the scheduled Maturity Date to the scheduled
Maturity Date, or (B) any prepayment occurring as a result of the application of
any insurance proceeds or condemnation award under the Security Instrument.
(c) Any prepayment premium payable under this Note shall be computed as
follows:
(1) If the prepayment is made between the date of this Note and the
date that is 120 months after the first day of the first calendar month
following the date of this Note (the "Yield Maintenance Period"), the prepayment
premium shall be whichever is the greater of subparagraphs (i) and (ii) below:
(i) 1.0% of the unpaid principal balance of this Note; or
(ii) the product obtained by multiplying:
(A) the amount of principal being prepaid, by (B) the excess
(if any) of the Monthly Note Rate over the
Assumed
Reinvestment Rate,
by
(C) the Present Value Factor.
For purposes of subparagraph (ii), the following definitions shall
apply:
Monthly Note Rate: one-twelfth (1/12) of the annual interest rate
of this Note, expressed as a decimal calculated to five digits.
Prepayment Date: in the case of a voluntary prepayment, the date on
which the prepayment is made; in the case of the application by
Lender of collateral or security to a portion of the principal
balance, the date of such application; and in any other case, the
date on which Lender accelerates the unpaid principal balance of
this Note.
Assumed Reinvestment Rate: one-twelfth (1/12) of the yield rate as
of the date 5 Business Days before the Prepayment Date, on the
3.625% U.S. Treasury Security due May 1, 2013, as reported in The
Wall Street Journal, expressed as a decimal calculated to five
digits. In the event that no yield is published on the applicable
date for the Treasury Security used to determine the Assumed
Reinvestment Rate, Lender, in its discretion, shall select the
non-callable Treasury Security maturing in the same year as the
Treasury Security specified above with the lowest yield published in
The Wall Street Journal as of the applicable date. If the
publication of such yield rates in The Wall Street Journal is
discontinued for any reason, Lender shall select a security with a
comparable rate and term to the Treasury Security used to determine
the Assumed Reinvestment Rate. The selection of an alternate
security pursuant to this Paragraph shall be made in Lender's
discretion.
Present Value Factor: the factor that discounts to present value the
costs resulting to Lender from the difference in interest rates
during the months remaining in the Yield Maintenance Period, using
the Assumed Reinvestment Rate as the discount rate, with monthly
compounding, expressed numerically as follows:
[OBJECT OMITTED]
n = number of months remaining in Yield Maintenance Period
ARR = Assumed Reinvestment Rate
(2) If the prepayment is made after the expiration of the Yield
Maintenance Period but before the period set forth in Paragraph 10(b)(A) above,
the prepayment premium shall be 1.0% of the unpaid principal balance of this
Note.
(d) Any permitted or required prepayment of less than the unpaid principal
balance of this Note shall not extend or postpone the due date of any subsequent
monthly installments or change the amount of such installments, unless Lender
agrees otherwise in writing.
(e) Borrower recognizes that any prepayment of the unpaid principal
balance of this Note, whether voluntary or involuntary or resulting from a
default by Borrower, will result in Lender's incurring loss, including
reinvestment loss, additional expense and frustration or impairment of Lender's
ability to meet its commitments to third parties. Borrower agrees to pay to
Lender upon demand damages for the detriment caused by any prepayment, and
agrees that it is extremely difficult and impractical to ascertain the extent of
such damages. Borrower therefore acknowledges and agrees that the formula for
calculating prepayment premiums set forth in this Note represents a reasonable
estimate of the damages Lender will incur because of a prepayment.
(f) Borrower further acknowledges that the prepayment premium provisions
of this Note are a material part of the consideration for the Loan, and
acknowledges that the terms of this Note are in other respects more favorable to
Borrower as a result of the Borrower's voluntary agreement to the prepayment
premium provisions.
11. Costs and Expenses. To the fullest extent allowed by applicable law,
Borrower shall pay all expenses and costs, including fees and out-of-pocket
expenses of attorneys (including Lender's in-house attorneys) and expert
witnesses and costs of investigation, incurred by Lender as a result of any
default under this Note or in connection with efforts to collect any amount due
under this Note, or to enforce the provisions of any of the other Loan
Documents, including those incurred in post-judgment collection efforts and in
any bankruptcy proceeding (including any action for relief from the automatic
stay of any bankruptcy proceeding) or judicial or non-judicial foreclosure
proceeding.
12. Forbearance. Any forbearance by Lender in exercising any right or
remedy under this Note, the Security Instrument, or any other Loan Document or
otherwise afforded by applicable law, shall not be a waiver of or preclude the
exercise of that or any other right or remedy. The acceptance by Lender of any
payment after the due date of such payment, or in an amount which is less than
the required payment, shall not be a waiver of Lender's right to require prompt
payment when due of all other payments or to exercise any right or remedy with
respect to any failure to make prompt payment. Enforcement by Lender of any
security for Borrower's obligations under this Note shall not constitute an
election by Lender of remedies so as to preclude the exercise of any other right
or remedy available to Lender.
13. Waivers. Presentment, demand, notice of dishonor, protest, notice of
acceleration, notice of intent to demand or accelerate payment or maturity,
presentment for payment, notice of nonpayment, grace, and diligence in
collecting the Indebtedness are waived by Borrower and all endorsers and
guarantors of this Note and all other third party obligors.
14. Loan Charges. Neither this Note nor any of the other Loan Documents
shall be construed to create a contract for the use, forbearance or detention of
money requiring payment of interest at a rate greater than the maximum interest
rate permitted to be charged under applicable law. If any applicable law
limiting the amount of interest or other charges permitted to be collected from
Borrower in connection with the Loan is interpreted so that any interest or
other charge provided for in any Loan Document, whether considered separately or
together with other charges provided for in any other Loan Document, violates
that law, and Borrower is entitled to the benefit of that law, that interest or
charge is hereby reduced to the extent necessary to eliminate that violation.
The amounts, if any, previously paid to Lender in excess of the permitted
amounts shall be applied by Lender to reduce the unpaid principal balance of
this Note. For the purpose of determining whether any applicable law limiting
the amount of interest or other charges permitted to be collected from Borrower
has been violated, all Indebtedness that constitutes interest, as well as all
other charges made in connection with the Indebtedness that constitute interest,
shall be deemed to be allocated and spread ratably over the stated term of the
Note. Unless otherwise required by applicable law, such allocation and spreading
shall be effected in such a manner that the rate of interest so computed is
uniform throughout the stated term of the Note.
15. Commercial Purpose. Borrower represents that the Indebtedness is being
incurred by Borrower solely for the purpose of carrying on a business or
commercial enterprise, and not for personal, family, household, or agricultural
purposes.
16. Counting of Days. Except where otherwise specifically provided, any
reference in this Note to a period of "days" means calendar days, not Business
Days.
17. Governing Law. This Note shall be governed by the law of the
jurisdiction in which the Land is located.
18. Captions. The captions of the paragraphs of this Note are for
convenience only and shall be disregarded in construing this Note.
19. Notices; Written Modifications. All notices, demands and other
communications required or permitted to be given by Lender to Borrower pursuant
to this Note shall be given in accordance with Section 31 of the Security
Instrument. Any modification or amendment to this Note shall be ineffective
unless in writing signed by the party sought to be charged with such
modification or amendment; provided, however, that in the event of a Transfer
under the terms of the Security Instrument, any or some or all of the
Modifications to Multifamily Note may be modified or rendered void by Lender at
Lender's option by notice to Borrower/transferee.
20. Consent to Jurisdiction and Venue. Borrower agrees that any
controversy arising under or in relation to this Note shall be litigated
exclusively in the jurisdiction in which the Land is located (the "Property
Jurisdiction"). The state and federal courts and authorities with jurisdiction
in the Property Jurisdiction shall have exclusive jurisdiction over all
controversies which shall arise under or in relation to this Note. Borrower
irrevocably consents to service, jurisdiction, and venue of such courts for any
such litigation and waives any other venue to which it might be entitled by
virtue of domicile, habitual residence or otherwise.
21. WAIVER OF TRIAL BY JURY. BORROWER AND LENDER EACH (A) AGREES NOT TO
ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS NOTE OR THE
RELATIONSHIP BETWEEN THE PARTIES AS LENDER AND BORROWER THAT IS TRIABLE OF RIGHT
BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE
TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND
VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
ATTACHED EXHIBIT. The following Exhibit is attached to this Note:
|X| Exhibit A Modifications to Multifamily Note
IN WITNESS WHEREOF, Borrower has signed and delivered this Note under seal
or has caused this Note to be signed and delivered under seal by its duly
authorized representative. Borrower intends that this Note shall be deemed to be
signed and delivered as a sealed instrument.
CENTURY PROPERTIES FUND XIX
a California limited partnership
By: Fox Partners II
a California general partnership
General Partner
By: Fox Capital Management Corporation
a California corporation
Managing Partner
By: /s/Patti K. Fielding (Seal)
Patti K. Fielding
Executive Vice President
94-2887133
Borrower's Employer ID Number
Pay to the Order of FEDERAL HOME LOAN MORTGAGE CORPORATION, without recourse.
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
an Ohio corporation
By: /s/Janette M. O'Brien
Janette M. O'Brien
Vice President
Exhibit 10.20
REPLACEMENT RESERVE AGREEMENT
(REVISION DATE 01-31-2003)
(FHLMC Loan No. 002703483)
This REPLACEMENT RESERVE AGREEMENT ("Agreement") is made and entered into,
to be effective as of June 25, 2003, by and between CENTURY PROPERTIES FUND XIX,
a California limited partnership ("Borrower"), and KEYCORP REAL ESTATE CAPITAL
MARKETS, INC., an Ohio corporation ("Lender") and its successors and assigns.
W I T N E S S E T H:
WHEREAS, Lender has agreed to make and Borrower has agreed to accept the
Loan, which is to be evidenced by the Note and secured by the Security
Instrument encumbering the Land and the Improvements. The Land is described on
Exhibit "A" attached to this Agreement; and
WHEREAS, as a condition of making the Loan, Lender is requiring Borrower
to establish the Replacement Reserve Fund for the funding of Capital
Replacements throughout the Loan term.
NOW, THEREFORE, for and in consideration of the Loan, the mutual promises
and covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lender and Borrower
agree as follows:
1. Definitions. The following terms used in this Agreement shall have the
meanings set forth below in this Section 1. Any term used in this
Agreement and not defined shall have the meaning given to that term in the
Security Instrument.
(a) "Capital Replacement" means the replacement of those items listed on
Exhibit "B" of this Agreement and such other replacements of
equipment, major components or capital systems related to the
Improvements as may be approved in writing or required by Lender.
(b) "Disbursement Period" means the interval between disbursements from
the Replacement Reserve Fund, which interval shall be no shorter
than once a quarter.
(c) "Improvements" means the buildings, Personal Property and
improvements situated upon the Land, currently constituting a
multifamily apartment project known as Wood Lake Apartments.
(d) "Initial Deposit" means the amount of Zero Dollars ($0) made as of
the date of this Agreement.
(e) Inspection Fee means a fee for performing any inspection required by
this Agreement in an amount not to exceed Five Hundred and No/100ths
Dollars ($500.00) per inspection.
(f) Investment Fee means a one time fee for establishing the Replacement
Reserve Fund in the amount of Five Hundred and No/100ths Dollars
($500.00).
(g) "Loan" means the loan from Lender to Borrower in the original
principal amount of Seven Million Five Hundred Thousand and
No/100ths Dollars ($7,500,000.00), as evidenced by the Note and
secured by the Security Instrument.
(h) "Minimum Disbursement Request Amount" means Seven Thousand Five
Hundred and No/100ths Dollars ($7,500.00).
(i) "Monthly Deposit" means the amount of Nine Thousand One Hundred
Eighty-Five and No/100ths Dollars ($9,185.00) per month to be
deposited into the Replacement Reserve Fund in accordance with this
Agreement.
(j) "Property" means the Land and Improvements.
(k) "Replacement Reserve Deposit" means the Initial Deposit, the Monthly
Deposit and/or the Revised Monthly Deposit, as appropriate.
(l) "Replacement Reserve Fund" means the account established pursuant to
this Agreement to defray the costs of Capital Replacements.
(m) "Review Period" means the period ending 120 months after the first
monthly payment date.
(n) "Revised Monthly Deposit" means the amount per month that Lender
determines Borrower must deposit in the Replacement Reserve Fund
during any Subsequent Review Period.
(o) "Security Instrument" means the mortgage, deed of trust, deed to
secure debt, or other similar security instrument encumbering the
Property and securing Borrower's performance of its Loan
obligations.
(p) "Subsequent Review Period" means the period of 12 months commencing
either (i) at the termination of the Review Period or (ii) at the
termination of a prior Subsequent Review Period. There may be more
than one Subsequent Review Period.
2. Replacement Reserve Fund.
(a) Establishment; Funding.
(i) Upon the closing of the Loan, the parties shall establish the
Replacement Reserve Fund and, if required by Lender, Borrower
shall pay the Initial Deposit to Lender for deposit into the
Replacement Reserve Fund.
(ii) Commencing on the date the first installment of principal
and/or interest is due under the Note and continuing on the
same day of each successive month until the end of the Review
Period, Borrower shall pay the Monthly Deposit to Lender for
deposit into the Replacement Reserve Fund, together with its
regular monthly payments of principal and interest as required
by the Note and Security Instrument.
(iii) Prior to the end of the Review Period, Lender will assess the
physical condition of the Property. Lender may adjust the
Monthly Deposit at the termination of the Review Period to
reflect Lender's determination of the condition of the
Property. Upon written notice from Lender or Loan Servicer,
Borrower shall begin paying the Revised Monthly Deposit on the
first monthly payment date of the Subsequent Review Period and
shall continue paying the Revised Monthly Deposit until Lender
further adjusts the Replacement Reserve Deposit during a
Subsequent Review Period, if applicable. If Lender does not
provide Borrower with written notice of a Revised Monthly
Deposit, Borrower shall continue to pay the Monthly Deposit or
the Revised Monthly Deposit then in effect.
(b) Investment of Deposits. Borrower and Lender agree that Lender
shall hold all moneys deposited into the Replacement Reserve Fund
in an interest bearing account, and any interest earned on such
moneys shall be added to the principal balance of the Replacement
Reserve Fund and disbursed in accordance with the provisions of
this Agreement. Borrower acknowledges and agrees that it shall
not have the right to direct Lender as to any specific investment
of moneys in the Replacement Reserve Fund. Lender shall not be
responsible for any losses resulting from investment of moneys in
the Replacement Reserve Fund or for obtaining any specific level
or percentage of earnings on such investment. Lender shall be
entitled to deduct the Investment Fee from the Replacement
Reserve Fund for establishing the Replacement Reserve.
(c) Use. Subject to the pledge and security interest and other rights of
Lender set forth in this Agreement, the Replacement Reserve Fund
shall be maintained for the payment of the costs of the Capital
Replacements identified on Exhibit B.
(d) Deferral of Deposits. Notwithstanding subsections 2(a)
through (c) above, Lender defers its right to require Borrower to
make the Replacement Reserve Deposit. However, at the end of the
Review Period or any Subsequent Review Period, Lender reserves
the right to require that Borrower begin making the Replacement
Reserve Deposit if Lender reasonably determines that the physical
condition of the Property warrants that Borrower begin making
such deposit. Lender's determination to require such deposit
shall not depend on the existence of any of the events set forth
in subsection (e) below.
(e) Reinstatement of Deposits. Notwithstanding subsection 2(d) above,
Lender reserves the right to require at any time, upon written
notice to Borrower, that Borrower begin making the Replacement
Reserve Deposit if Lender reasonably determines that any of the
following events have occurred:
(i) Borrower's default under the Note, Security Instrument, or any
other document delivered in connection with the Loan, or
(ii) the occurrence of a Transfer which is prohibited under the
terms of the Security Instrument or which requires Lender's
consent, or
(iii) Borrower's failure to maintain the Property in a satisfactory
manner and/or in accordance with the requirements of the
Security Instrument.
3. Performance of Capital Replacements; Disbursements.
(a) Requests for Disbursement. Lender shall disburse funds from the
Replacement Reserve Fund, in its sole discretion, as follows: (i)
Borrower's Request. If Borrower determines, at any time or
from time to time, that a Capital Replacement is necessary or
desirable, Borrower shall perform such Capital Replacement and
request from Lender, in writing, reimbursement for such
Capital Replacement. Borrower's request for reimbursement
shall include (A) a detailed description of the Capital
Replacement performed, together with evidence, satisfactory to
Lender, that the cost of such Capital Replacement has been
paid and (B) lien waivers from each contractor and material
supplier supplying labor or materials for such Capital
Replacement, if required by Lender.
(ii) Lender's Request. If Lender shall reasonably determine at any
time or from time to time, that a Capital Replacement is
necessary for the proper maintenance of the Property, it shall
so notify Borrower, in writing, requesting that Borrower
obtain and submit to Lender bids for all labor and materials
required in connection with such Capital Replacement. Borrower
shall submit such bids and a time schedule for completing each
Capital Replacement to Lender within thirty (30) days after
Borrower's receipt of Lender's written notice. Borrower shall
perform such Capital Replacement and request from Lender, in
writing, reimbursement for such Capital Replacement.
Borrower's request for reimbursement shall include (A) a
detailed description of the Capital Replacement performed,
together with evidence, satisfactory to Lender, that the cost
of such Capital Replacement has been paid and (B) lien waivers
from each contractor and material supplier supplying labor or
materials for such Capital Replacement, if required by Lender.
(b) Conditions Precedent. Disbursement from the Replacement Reserve Fund
shall be made no more frequently than once every Disbursement Period
and, except for the final disbursement, no disbursement shall be
made in an amount less than the Minimum Disbursement Request Amount.
Disbursements shall be made only if the following conditions
precedent have been satisfied, as reasonably determined by Lender:
(i) Payment for Capital Replacement. The Capital Replacement
has been performed and/or installed on the Property in a
good and workmanlike manner with suitable materials (or in
the case of a partial disbursement, performed and/or
installed on the Property to an acceptable stage) and paid
for by Borrower as evidenced by copies of all applicable
paid invoices or bills submitted to Lender by Borrower at
the time Borrower requests disbursement from the
Replacement Reserve Fund.
(ii) No Default. There is no condition, event or act that would
constitute a default (with or without notice and/or lapse of
time) under this Agreement or any other Loan Document.
(iii) Representations and Warranties. All representations and
warranties of Borrower set forth in this Agreement and in the
Loan Documents are true in all material respects.
(iv) Continuing Compliance. Borrower is in full compliance with the
provisions of this Agreement, the other Loan Documents and any
request or demand by Lender permitted hereby.
(v) No Lien Claim. No lien or claim based on furnishing labor or
materials has been filed or asserted against the Property,
unless Borrower has properly provided bond or other security
against loss in accordance with applicable law.
(vi) Approvals. All licenses, permits, and approvals of
governmental authorities required for the Capital Replacement
as completed to the applicable stage have been obtained.
(vii) Legal Compliance. The Capital Replacement as completed to the
applicable stage does not violate any laws, ordinance, rules
or regulations, or building lines or restrictions applicable
to the Property.
4. Right to Complete Capital Replacements. If Borrower abandons or fails
to proceed diligently to undertake and/or complete any Capital
Replacement in a timely fashion or is otherwise in default under this
Agreement for 30 days after written notice of such failure by Lender to
Borrower, Lender shall have the right (but not the obligation) to enter
upon the Property and take over and cause the completion of such
Capital Replacement. However, no such notice or grace period shall
apply in the case of such failure which could, in Lender's judgment,
absent immediate exercise by Lender of a right or remedy under this
Agreement, result in harm to Lender or impairment of the security given
under the Security Instrument or any other Loan Document. Any
contracts entered into or indebtedness incurred upon the exercise of
such right may be in the name of Borrower, and Lender is hereby
irrevocably appointed the attorney in fact of Borrower, such
appointment being coupled with an interest, to enter into such
contracts, incur such obligations, enforce any contracts or agreements
made by or on behalf of Borrower (including the prosecution and defense
of all actions and proceedings in connection with the Capital
Replacement and the payment, settlement or compromise of all bills and
claims for materials and work performed in connection with the Capital
Replacement) and do any and all things necessary or proper to complete
any Capital Replacement including signing Borrower's name to any
contracts and documents as may be deemed necessary by Lender. In no
event shall Lender be required to expend its own funds to complete any
Capital Replacement, but Lender may, in its sole discretion, advance
such funds. Any funds advanced shall be added to the outstanding
balance of the Loan, secured by the Security Instrument and payable to
Lender by Borrower in accordance with the provisions of the Security
Instrument pertaining to the protection of Lender's security and
advances made by Lender. Borrower waives any and all claims it may
have against Lender for materials used, work performed or resultant
damage to the Property.
5. Inspection. Lender or any representative of Lender may periodically
inspect any Capital Replacement in process and upon completion during
normal business hours or at any other reasonable time upon reasonable
prior written notice to Borrower (except in an emergency, as determined
by Lender in its discretion or after an Event of Default, in which
event no such prior notice shall be require). Lender shall be entitled
to deduct the Inspection Fee from the Replacement Reserve Fund for
performing any such inspection. If Lender, in its sole discretion,
retains a professional inspection engineer or other qualified third
party to inspect any Capital Replacement, Lender also shall be entitled
to deduct from the Replacement Reserve Fund an amount sufficient to pay
all reasonable fees and expenses charged by such third party inspector.
6. Insufficient Account. If Borrower requests disbursement from the
Replacement Reserve Fund for a Capital Replacement in accordance with this
Agreement in an amount which exceeds the amount on deposit in the
Replacement Reserve Fund, Lender shall disburse to Borrower only the
amount on deposit in the Replacement Reserve Fund. Borrower shall pay all
additional amounts required in connection with any such Capital
Replacement from Borrower's own funds.
7. Security Agreement. To secure Borrower's obligations under this
Agreement and to further secure Borrower's obligations under the Note,
Security Instrument and other Loan Documents, Borrower hereby conveys,
pledges, transfers and grants to Lender a security interest pursuant to
the Uniform Commercial Code of the Property Jurisdiction or any other
applicable law in and to all money in the Replacement Reserve Fund, as
same may increase or decrease from time to time, all interest and
dividends thereon and all proceeds thereof.
8. Post Default. If Borrower defaults in the performance of its
obligations under this Agreement or under the Note, Security Instrument
or any other Loan Document, after the expiration of any applicable
notice or cure period, Lender shall have all remedies available to them
under Article 9 of the Uniform Commercial Code of the Property
Jurisdiction and under any other applicable law. In addition, Lender
may retain all money in the Replacement Reserve Fund, including
interest, and in Lender's discretion, may apply such amounts, without
restriction and without any specific order of priority, to the payment
of any and all indebtedness or obligations of Borrower set forth in the
Note, Security Instrument or any other Loan Document, including, but
not limited to, principal, interest, taxes, insurance, reasonable
attorneys' fees and costs (including those of Lender's in-house
counsel) and disbursements actually incurred and/or repairs to the
Property.
9. Termination. If not sooner terminated by written concurrence of the
parties, this Agreement shall terminate upon the payment in full of the
Loan and all indebtedness incurred in connection therewith and upon such
termination, Lender shall pay to Borrower all funds remaining in the
Replacement Reserve Fund.
10. No Amendment. Nothing contained in this Agreement shall be construed to
amend, modify, alter, change or supersede the terms and provisions of the
Note, Security Instrument or any other Loan Document; and, if there is a
conflict between the terms and provisions of this Agreement and those of
the Note, Security Instrument, or any other Loan Document then the terms
and provisions of the Note, Security Instrument or such other Loan
Document shall control.
11. Release; Indemnity.
(a) Release. Borrower covenants and agrees that, in performing any
of its duties under this Agreement, none of Lender, any Loan
Servicer, or any of their respective agents or employees shall be
liable for any losses, claims, damages, liabilities and expenses
that may be incurred by any of them as a result of such
performance, except that no such party will be released from
liability for any losses, claim, damages, liabilities or expenses
arising out of the willful misconduct or gross negligence of such
party.
(b) Indemnity. Borrower hereby agrees to indemnify and hold harmless
Lender, Loan Servicer and their respective agents and employees
against any and all losses, claims, damages, liabilities and
expenses including, without limitation, reasonable attorneys'
fees and costs (including those of Lender's in-house counsel) and
disbursements, which may be imposed or incurred by any of them in
connection with this Agreement except that no such party will be
indemnified from liability for any losses, claims, damages,
liabilities or expenses arising out of the willful misconduct or
gross negligence of such party.
12. Choice of Law. This Agreement shall be construed and enforced in
accordance with the laws of the Property Jurisdiction.
13. Successors and Assigns. Lender may assign its rights and interests
under this Agreement in whole or in part and upon any such assignment,
all the terms and provisions of this Agreement shall inure to the
benefit of such assignee to the extent so assigned. The terms used to
designate any of the parties herein shall be deemed to include the
heirs, legal representatives, successors and assigns of such parties;
and the term "Lender" shall also include any lawful owner, holder or
pledgee of the Note. Reference herein to "person" or "persons" shall
be deemed to include individuals and entities. Borrower may not assign
or delegate its rights, interests, or obligations under this Agreement
without first obtaining Lender's prior written consent.
14. Attorneys' Fees. In the event that Lender engages the services of an
attorney at law to enforce the provisions of this Agreement against
Borrower, then Borrower shall pay all costs of such enforcement, including
any reasonable attorneys' fees and costs (including those of Lender's
in-house counsel) and disbursements actually incurred.
15. Compliance with Laws; Insurance Requirements.
(a) Compliance with Laws. Borrower shall ensure that all Capital
Replacements comply with all applicable laws, ordinances, rules and
regulations of all governmental authorities having jurisdiction over
the Property and applicable insurance requirements including,
without limitation, applicable building codes, special use permits,
environmental regulations, and requirements of insurance
underwriters.
(b) Insurance Requirements. In addition to any insurance required
under the Loan Documents, Borrower shall provide or cause to be
provided workers' compensation, builder's risk (if required by
Lender), and public liability insurance and other insurance
required under applicable law in connection with any of the
Capital Replacements. All such policies that can be endorsed
with standard mortgage clauses making losses payable to Lender or
its assigns shall be so endorsed. The originals of such policies
shall be deposited with Loan Servicer.
16. Remedies Cumulative. In the event of Borrower's default under this
Agreement, Lender may exercise all or any one or more of its rights and
remedies available under this Agreement, at law or in equity. Such
rights and remedies shall be cumulative and concurrent, and may be
enforced separately, successively or together, and Lender's exercise of
any particular right or remedy shall not in any way prevent Lender from
exercising any other right or remedy available to Lender. Lender may
exercise any such remedies from time to time as often as Lender chooses.
17. Determinations by Lender. Unless otherwise provided in this Agreement,
in any instance where the consent or approval of Lender may be given or
is required, or where any determination, judgment or decision is to be
rendered by Lender under this Agreement, the granting, withholding or
denial of such consent or approval and the rendering of such
determination, judgment or decision shall be made or exercised by
Lender (or its designated representative) at its sole and exclusive
option and in its sole and absolute discretion.
18. Completion of Capital Replacements. Lender's disbursement of moneys
from the Replacement Reserve Fund or other acknowledgment of completion
of any Capital Replacement in a manner satisfactory to Lender shall not
be deemed a certification by Lender that the Capital Replacement has
been completed in accordance with applicable building, zoning or other
codes, ordinances, statutes, laws, regulations or requirements of any
governmental authority or agency. Borrower shall at all times have the
sole responsibility for ensuring that all Capital Replacements are
completed in accordance with all such governmental requirements.
19. No Agency or Partnership. Nothing contained in this Agreement shall
constitute Lender as a joint venturer, partner or agent of Borrower, or
render Lender liable for any debts, obligations, acts, omissions,
representations or contracts of Borrower.
20. Entire Agreement. This Agreement and the other Loan Documents
represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral
agreements. There are no oral agreements between the parties. All
prior or contemporaneous agreements, understandings, representations
and statements, oral or written, are merged into this Agreement and the
other Loan Documents. Neither this Agreement nor any of its provisions
may be waived, modified, amended, discharged or terminated except in
writing signed by the party against which the enforcement of the
waiver, modification, amendment, discharge or termination is sought,
and then only to the extent set forth in writing; provided, however,
that in the event of a Transfer requiring Lender's consent under the
terms of the Security Instrument, one or more or all of the
Modifications to Agreement set forth in Exhibit C (if any) may be
modified or rendered void by Lender at Lender's option by notice to
Borrower/transferee.
21. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original document and all of which
together shall constitute one agreement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
ATTACHED EXHIBITS. The following Exhibits are attached to this
Agreement:
|X | Exhibit A Legal Description of the Land (required)
|X | Exhibit B Capital Replacements (required)
| | Exhibit C Modifications to Agreement
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first written above.
BORROWER:
CENTURY PROPERTIES FUND XIX
a California limited partnership
By: Fox Partners II
a California general partnership
General Partner
By: Fox Capital Management Corporation
a California corporation
Managing Partner
By: /s/Patti K. Fielding
Name: Patti K. Fielding
Title: Executive Vice President
Taxpayer Identification No.: 94-2887133
LENDER:
KEYCORP REAL ESTATE CAPITAL
MARKETS, INC.
an Ohio corporation
By: /s/Janette M. O'Brien
Janette M. O'Brien
Vice President
Exhibit 10.21
REPAIR ESCROW AGREEMENT
(REVISION DATE 01-31-2003)
(FHLMC Loan No. 002703483)
This REPAIR ESCROW AGREEMENT ("Agreement") is made and entered into, to be
effective as of June 25, 2003, by and between CENTURY PROPERTIES FUND XIX, a
California limited partnership ("Borrower"), and KEYCORP REAL ESTATE CAPITAL
MARKETS, INC., an Ohio corporation ("Lender") and its successors and assigns.
W I T N E S S E T H:
WHEREAS, Lender has agreed to make and Borrower has agreed to accept the
Loan, which is to be evidenced by the Note and secured by the Security
Instrument encumbering the Land described on Exhibit "A" attached to this
Agreement;
WHEREAS, as a condition of making the Loan, Lender is requiring Borrower
to make the Repairs to the Improvements, which Repairs are generally described
in the Schedule of Work attached to this Agreement as Exhibit "B"; and
WHEREAS, in order to assure that the Repairs are made and paid for in a
timely manner, Lender is requiring Borrower to establish the Repair Escrow Fund
with Lender pursuant to the terms of this Agreement.
NOW, THEREFORE, for and in consideration of the Loan, the mutual promises
and covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lender and Borrower
agree as follows:
1. Definitions. The following terms used in this Agreement shall have the
meanings set forth below in this Section. Any term used in this Agreement
and not defined shall have the meaning given to that term in the Security
Instrument.
(a) "Completion Date" means the date that is 90 days after the effective
date of this Agreement or, September 24, 2003.
(b) "Disbursement Request" means Borrower's written requests to Lender
in the form attached to this Agreement as Exhibit "C" for the
disbursement of money from the Repair Escrow Fund pursuant to
Section 3 below, which requests shall not be made more often than
once every thirty (30) days during the term of this Agreement.
(c) "Improvements" means the buildings and improvements situated upon
the Land, currently constituting a multifamily apartment project
known as Wood Lake Apartments.
(d) "Loan" means the loan from Lender to Borrower in the original
principal amount of Seven Million Five Hundred Thousand and
No/100ths Dollars ($7,500,000.00), as evidenced by the Note and
secured by the Security Instrument.
(e) "Minimum Disbursement Request Amount" means Seven Thousand Five
Hundred and No/100ths Dollars ($7,500.00).
(f) "Property" means the Land and Improvements.
(g) "Repairs" means the repairs to be made to the Property , as
described on the Schedule of Work or as otherwise required by Lender
in accordance with this Agreement.
(h) "Repair Escrow Deposit" means the sum of Two Hundred Ninety-Four
Thousand Three Hundred Seventy-Five and No/100ths Dollars ($294,375)
deposited into escrow with Lender as of the effective date of this
Agreement, together with interest, if any, to be held in accordance
with the provisions of this Agreement.
(i) "Repair Escrow Fund" means the account established by this Agreement
into which the Repair Escrow Deposit is deposited.
(j) "Schedule of Work" means the schedule of work for the Repairs
attached to this Agreement as Exhibit "B".
(k) "Security Instrument" means the mortgage, deed of trust, deed to
secure debt, or other similar security instrument encumbering the
Property and securing Borrower's performance of its Loan
obligations.
2. Repair Escrow Fund.
(a) Establishment. Lender acknowledges that Borrower has established
the Repair Escrow Fund by depositing the amount of the Repair
Escrow Deposit with Lender. Borrower and Lender agree that all
moneys deposited into the Repair Escrow Fund shall be held by
Lender in an interest bearing account if Lender estimates that
the Repairs will require longer than ninety (90) days to
complete. Lender shall not be required to hold the Repair Escrow
Deposit in an interest bearing account if the Repairs are
required to be completed in ninety (90) days or less. Any
interest earned on such moneys shall be added to the principal
balance of the Repair Escrow Fund and disbursed in accordance
with the provisions of this Agreement. Lender shall be entitled
to deduct from the Repair Escrow Fund a one- time fee in the
amount of Five Hundred and No/100ths Dollars ($500.00) for
establishing the Repair Escrow Fund. Lender shall not be
responsible for any losses resulting from investment of moneys in
the Repair Escrow Fund or for obtaining any specific level or
percentage of earnings on such investment.
(b) Use. The Repair Escrow Deposit shall, except as otherwise stated in
this Agreement, be used for the purpose of paying, or reimbursing
Borrower for, the costs of the Repairs.
3. Disbursements. From time to time, as construction and completion of
the Repairs progresses, upon Borrower's submission of a Disbursement
Request in the form attached to this Agreement as Exhibit C, and
provided that Borrower is in full compliance with all the applicable
conditions set forth in this Agreement and in the other Loan Documents,
Lender shall make disbursements from the Repair Escrow Fund for payment
or reimbursement of the actual costs of the Repairs. Borrower must
sign the Borrower's Disbursement Request and Borrower must include
with its Disbursement Request a report setting out the progress of the
Repairs and any other reports or information relating to the
construction of the Repairs that may be reasonably requested by
Lender. Borrower must include with each Disbursement Request copies
of any applicable invoices and/or bills and appropriate lien waivers
for the prior period for which disbursement was made, executed by all
contractors and suppliers supplying labor or materials for the
Repairs. Unless waived by Lender in writing, Borrower must also
include a report prepared by the professional engineer employed by
Lender as to the status of the Repairs. Except for the final
Disbursement Request, no Disbursement Request shall be for an amount
less than the Minimum Disbursement Request Amount.
4. Reporting Requirements; Completion. Prior to receiving the final
disbursement from the Repair Escrow Fund, Borrower must deliver to Lender,
in addition to the information required by Section 3 above, the following:
(a) Contractor's Certificate. A certificate signed by each major
contractor and supplier of materials, as reasonably determined by
Lender, engaged to provide labor or materials for the Repairs to
the effect that such contractor or supplier has been paid in full
for all work completed and that the portion of the Repairs
provided by such contractor or supplier has been fully completed
in accordance with the plans and specifications (if any) provided
to it by Borrower and that such portion of the Repairs is in
compliance with all applicable building codes and other rules and
regulations promulgated by applicable regulatory or governmental
authorities;
(b) Borrower's Certificate. A certificate signed by Borrower to the
effect that the Repairs have been fully paid for, that all money
disbursed hereunder has been used for the Repairs and no claim or
claims exist against the Borrower or against the Property out of
which a lien based on furnishing labor or material exists or
might ripen. Borrower may except from the certificate described
in the preceding sentence any claim or claims that Borrower
intends to contest, provided that any such claim or claims are
described in Borrower's certificate and Borrower certifies to
Lender that the money in the Repair Escrow Fund is sufficient to
make payment of the full amount which might in any event be
payable in order to satisfy such claim or claims. If required by
Lender, Borrower also shall certify to Lender that such portion
of the Repairs is in compliance with all applicable zoning
ordinances;
(c) Engineer's Certificate. A certificate signed by the professional
engineer employed by Lender to the effect that the Repairs have been
completed in a good and workmanlike manner in compliance with the
Schedule of Work and all applicable building codes, zoning
ordinances and other rules and regulations promulgated by applicable
regulatory or governmental authorities; and
(d) Other Certificates. Any other certificates of approval, acceptance
or compliance required by Lender from or by the city, county, state
or federal governmental authorities having jurisdiction over the
Property and the Repairs.
5. Indirect and Excess Disbursements. Lender, in its sole judgment, is
authorized to hold, use and disburse from the Repair Escrow Fund to pay
any and all costs, charges and expenses whatsoever and howsoever
incurred or required in connection with the construction and completion
of the Repairs, or in the payment or performance of any obligation of
Borrower to Lender. If Lender, for purposes specified in this Section
5, shall elect to pay any portion of the money in the Repair Escrow
Fund to parties other than Borrower, then Lender may do so, at any time
and from time to time, and the amount of advances to which Borrower
shall be entitled under this Agreement shall be correspondingly reduced.
6. Schedule of Work. All disbursements from the Repair Escrow Fund shall be
limited to the costs of those items set forth on the Schedule of Work
attached to this Agreement as Exhibit "B".
7. Repairs. Borrower covenants and agrees with Lender as follows:
(a) Commencement of Work. Except as set forth on Exhibit D, prior to
the recordation of the Security Instrument, no work of any kind
has been or will be commenced or performed upon the Property and
no materials or equipment have been or will be delivered to or
upon the Property. In the event that any work of any kind has
been commenced or performed upon the Property, or in the event
that any materials or equipment have been ordered or delivered to
or upon the Property, then (i) prior to the execution of the
Security Instrument the Borrower shall fully disclose in writing
to the title insurance company issuing the mortgagee title
insurance policy insuring the lien of the Security Instrument
that work has been commenced or performed on the Property, or
materials or equipment have been ordered or delivered to or upon
the Property, (ii) prior to the execution of the Security
Instrument Borrower shall have obtained and delivered to Lender
and the title company issuing the mortgagee title insurance
policy insuring the lien of the Security Instrument lien waivers
from all contractors, subcontractors, suppliers, or any other
applicable party, pertaining to all work commenced or performed
on the Property, or materials or equipment ordered or delivered
to or upon the Property, and (iii) the final mortgagee's title
insurance policy insuring the lien of the Security Instrument
shall take no exception from coverage for any mechanics or
materialmen's liens.
(b) Construction. Borrower will commence the Repairs as soon as
practicable after the date of this Agreement and will diligently
proceed with and complete the Repairs on or before the Completion
Date in a workmanlike manner and in accordance with the Schedule of
Work, good building practices and all applicable laws, ordinances,
rules and regulations.
(c) Changes in Schedule of Work. Without the prior written consent of
Lender, Borrower will make no departures from or alterations to the
Schedule of Work.
(d) Inspections. Borrower will permit Lender or any person
designated by Lender (including without limitation a professional
inspection engineer) and any interested governmental authority,
at any time and from time to time, to inspect the Repairs and
Improvements and to examine and copy all of Borrower's books and
records and all contracts and bills pertaining to the Repairs and
Improvements. Lender shall be entitled to deduct from the Repair
Escrow Fund reasonable fees for performing any such inspections
and/or an amount sufficient to reimburse Lender for all fees and
expenses charged by any professional inspection engineer employed
by Lender in connection with any such inspection. Borrower
agrees to cause the replacement of any material or work that is
defective, unworkmanlike, does not comply with any applicable
law, ordinance, rule or regulation, or does not comply with the
requirements of this Agreement, as determined by Lender. Prior
to and as a condition of the final disbursement of funds from the
Repair Escrow Fund, Lender shall inspect or cause to be inspected
the Repairs and the Improvements to determine that all Repairs,
including but not limited to interior and exterior repairs, have
been completed in a manner acceptable to Lender.
(e) Purchases. Without the prior written consent of Lender, no
materials, machinery, equipment, fixtures or any other part of
the Repairs shall be purchased or installed under conditional
sale contracts or lease agreements, or any other arrangement
wherein title to such Repairs is retained or subjected to a
purchase money security interest, or the right is reserved or
accrues to anyone to remove or repossess any such Repairs, or to
consider them as personal property.
8. Lien Protection. Borrower shall promptly pay or cause to be paid, when
due, all costs, charges and expenses incurred in connection with the
construction and completion of the Repairs, and shall keep the Property
free and clear of any and all liens other than the lien of the Security
Instrument and any other junior lien which may be consented to by Lender.
9. Adverse Claims. Borrower shall promptly advise Lender in writing of any
litigation, liens, or claims affecting the Property and of all complaints
and charges made by any governmental authority or any governmental
department, bureau, commission or agency exercising supervision or control
over Borrower or its business, which may delay or adversely affect the
Repairs.
10. Compliance With Laws; Insurance Requirements.
(a) Compliance With Laws. All Repairs shall comply with all applicable
laws, ordinances, rules and regulations of all governmental
authorities having jurisdiction over the Property, and with all
applicable insurance requirements including, without limitation,
applicable building codes, special use permits, environmental
regulations, and requirements of insurance underwriters.
(b) Insurance Requirements. In addition to any insurance required
under the Loan Documents, Borrower shall provide or cause to be
provided workers' compensation, builder's risk (if required by
Lender), and public liability insurance and other insurance
required under applicable law in connection with any of the
Repairs. All such policies shall be in form and amount
satisfactory to Lender. All such policies that can be endorsed
with standard mortgage clauses making losses payable to Lender or
its assigns shall be so endorsed. The originals of such policies
shall be deposited with Lender.
11. Use of Repair Escrow Fund. Borrower will accept disbursements from the
Repair Escrow Fund in accordance with the provisions of this Agreement and
will use, or cause to be used, each such disbursement solely to pay for
materials, labor and services, or to pay costs and expenses for which such
disbursement is requested.
12. Conditions Precedent. Lender shall not be obligated to make any
disbursement from the Repair Escrow Fund to or for the benefit of Borrower
unless at the time of each Disbursement Request all of the following
conditions prevail:
(a) No Default. There shall exist no condition, event or act that would
constitute a default (with or without notice and/or lapse of time)
under this Agreement or any other Loan Document.
(b) Representations and Warranties. All representations and warranties
of Borrower set forth in this Agreement and in the Loan Documents
are true.
(c) Continuing Compliance. Borrower shall be in full compliance with the
provisions of this Agreement, the other Loan Documents and any
request or demand by Lender permitted hereby.
(d) No Lien Claim. No lien or claim based on furnishing labor or
materials has been filed or asserted against the Property, unless
Borrower has properly provided bond or other security against loss
in accordance with applicable law.
(e) Approvals. All licenses, permits, and approvals of governmental
authorities required for the Repairs as completed to the applicable
stage have been obtained.
(f) Legal Compliance. The Repairs as completed to the applicable stage
do not violate any laws, ordinances, rules or regulations, or
building lines or restrictions applicable to the Property.
13. Right to Complete Repairs. If Borrower abandons or fails to proceed
diligently with the Repairs or otherwise is in default under this
Agreement, Lender shall have the right (but not the obligation) to
enter upon the Property and take over and cause the completion of the
Repairs. Any contracts entered into or indebtedness incurred upon the
exercise of such right may be in the name of Borrower, and Lender is
hereby irrevocably appointed the attorney in fact of Borrower, such
appointment being coupled with an interest, to enter into such
contracts, incur such obligations, enforce any contracts or agreements
made by or on behalf of Borrower (including the prosecution and defense
of all actions and proceedings in connection with the Repairs and the
payment, settlement, or compromise of all claims for materials and work
performed in connection with the Repairs) and do any and all things
necessary or proper to complete the Repairs including signing
Borrower's name to any contracts and documents as may be deemed
necessary by Lender. In no event shall Lender be required to expend
its own funds to complete the Repairs, but Lender may, in Lender's sole
discretion, advance such funds. Any funds advanced shall be added to
the outstanding balance of the Note, secured by the Security Instrument
and payable to Lender by Borrower in accordance with the provisions of
the Security Instrument pertaining to the protection of Lender's
security and advances made by Lender. Borrower waives any and all
claims it may have against Lender for materials used, work performed or
resultant damage to the Property.
14. Insufficient Account. If Lender determines in its reasonable discretion
that the money in the Repair Escrow Fund is insufficient to pay for the
Repairs, Lender shall so notify Borrower, in writing, and as soon as
possible (but in no event later than twenty (20) days after such notice)
Borrower shall pay to Lender an amount, in cash, equal to such deficiency,
which amount shall be placed in the Repair Escrow Fund by Lender.
15. Security Agreement. To secure Borrower's obligations under this
Agreement and to further secure Borrower's obligations under the Note,
Security Instrument and other Loan Documents, Borrower hereby conveys,
pledges, transfers and grants to Lender a security interest pursuant to
the Uniform Commercial Code of the Jurisdiction and other applicable
laws in and to all money in the Repair Escrow Fund as such may increase
or decrease from time to time, and all interest and dividends thereon
and all proceeds thereof.
16. Post Default. If Borrower defaults in the performance of its
obligations under this Agreement or under the Note, Security Instrument
or any other Loan Document, Lender shall have all remedies available
to them under Article 9 of the Uniform Commercial Code of the
Jurisdiction and under any other applicable laws and, in addition, may
retain all moneys in the Repair Escrow Fund, including interest, and in
Lender's discretion, may apply such amounts, without restriction and
without any specific order of priority, to the payment of any and all
indebtedness or obligations of Borrower set forth in the Note, Security
Instrument or other Loan Documents, including, but not limited to,
principal, interest, taxes, insurance, reasonable attorneys' fees
actually incurred and/or repairs to the Property.
17. Termination. This Agreement shall terminate upon the completion of the
Repairs in accordance with this Agreement and Lender's satisfaction, and
the full disbursement by Lender of the Repair Escrow Fund. In the event
there are funds remaining in the Repair Escrow Fund after the Repairs have
been completed in accordance with this Agreement, and provided no default
by Borrower exists under this Agreement or under any other Loan Documents,
such funds remaining in the Repair Escrow Fund shall be refunded by Lender
to the Borrower.
18. No Amendment. Nothing contained in this Agreement shall be construed to
amend, modify, alter, change or supersede the terms and provisions of the
Note, Security Instrument or any other Loan Document and, if there shall
exist a conflict between the terms and provisions of this Agreement and
those of the Note, Security Instrument or other Loan Documents, then the
terms and provisions of the Note, Security Instrument and other Loan
Documents shall control.
19. Release; Indemnity.
(a) Release. Borrower covenants and agrees that, in performing any of
its duties under this Agreement, none of Lender, and Loan Servicer
or any of their respective agents or employees, shall be liable for
any losses, costs or damages which may be incurred by any of them as
a result thereof, except that no party will be released from
liability for any losses, costs or damages arising out of the
willful misconduct or gross negligence of such party.
(b) Indemnity. Borrower hereby agrees to indemnify and hold harmless
Lender, Loan Servicer, and their respective agents and employees,
against any and all losses, claims, damages, liabilities and
expenses including, without limitation, reasonable attorneys'
fees and costs, which may be imposed or incurred by any of them
in connection with this Agreement, except that no such party will
be indemnified from any losses, claims, damages, liabilities and
expenses arising out of the willful misconduct or gross
negligence of such party.
20. Choice of Law. This Agreement shall be construed and enforced in
accordance with the laws of the Property Jurisdiction.
21. Successors and Assigns. Lender may assign its rights and interests
under this Agreement in whole or in part and upon any such assignment,
all the terms and provisions of this Agreement shall inure to the
benefit of such assignee to the extent so assigned. The terms used to
designate any of the parties herein shall be deemed to include the
heirs, legal representatives, successors and assigns of such parties;
and the term "Lender" shall also include any lawful owner, holder or
pledgee of the Note. Reference herein to "person" or "persons" shall
be deemed to include individuals and entities. Borrower may not assign
its rights, interests, or obligations under this Agreement without
first obtaining Lender's prior written consent.
22. Attorneys' Fees. In the event that Lender shall engage the services of an
attorney at law to enforce the provisions of this Agreement against
Borrower, then Borrower shall pay all costs of such enforcement, including
any reasonable attorneys' fees and costs (including those of Lender's
in-house counsel) actually incurred.
23. Remedies Cumulative. In the event of Borrower's default under this
Agreement, Lender may exercise all or any one or more of its rights and
remedies available under this Agreement, at law or in equity. Such
rights and remedies shall be cumulative and concurrent, and may be
enforced separately, successively or together, and Lender's exercise of
any particular right or remedy shall not in any way prevent Lender from
exercising any other right or remedy available to Lender. Lender may
exercise any such remedies from time to time as often as may be deemed
necessary by Lender.
24. Determinations by Lender. In any instance where the consent or
approval of Lender may be given or is required, or where any
determination, judgment or decision is to be rendered by Lender under
this Agreement, the granting, withholding or denial of such consent or
approval and the rendering of such determination, judgment or decision
shall be made or exercised by Lender (or its designated representative)
at its sole and exclusive option and in its sole and absolute
discretion.
25. Completion of Repairs. Lender's disbursement of moneys in the Repair
Escrow Fund or other acknowledgment of completion of any Repair in a
manner satisfactory to Lender shall not be deemed a certification by
Lender that the Repair has been completed in accordance with applicable
building, zoning or other codes, ordinances, statutes, laws,
regulations or requirements of any governmental authority or agency.
Borrower shall at all times have the sole responsibility for insuring
that all Repairs are completed in accordance with all such governmental
requirements.
26. No Agency or Partnership. Nothing contained in this Agreement shall
constitute Lender as a joint venturer, partner or agent of Borrower, or
render Lender liable for any debts, obligations, acts, omissions,
representations or contracts of Borrower.
27. Entire Agreement. This Agreement and the other Loan Documents
represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral
agreements. There are no unwritten oral agreements between the
parties. All prior or contemporaneous agreements, understandings,
representations, and statements, oral or written, are merged into this
Agreement and the other Loan Documents. Neither this Agreement nor any
of its provisions may be waived, modified, amended, discharged, or
terminated except in writing signed by the party against which the
enforcement of the waiver, modification, amendment, discharge, or
termination is sought, and then only to the extent set forth in that
writing; provided, however, that in the event of a Transfer requiring
Lender's consent under the terms of the Security Instrument, any one or
more, or all, of the Modifications to Agreement set forth in Exhibit
"E" (if any) may be modified or rendered void by Lender at Lender's
option by notice to Borrower/transferee.
28. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original document and all of which
together shall constitute one agreement.
ATTACHED EXHIBITS. The following Exhibits are attached to this
Agreement:
|X | Exhibit A Legal Description of Land (required)
|X | Exhibit B Schedule of Work (required)
|X | Exhibit C Disbursement Request (required)
|X | Exhibit D Work Performed or Commenced and Material or
Equipment Ordered (required, if none, state "NONE")
| | Exhibit E Modifications to Agreement
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
BORROWER:
CENTURY PROPERTIES FUND XIX
a California limited partnership
By: Fox Partners II
a California general partnership
General Partner
By: Fox Capital Management Corporation
a California corporation
Managing Partner
By: /s/Patti K. Fielding
Patti K. Fielding
Executive Vice President
Taxpayer Identification No.: 94-2887133
LENDER:
KEYCORP REAL ESTATE CAPITAL
MARKETS, INC.
an Ohio corporation
By: /s/Janette M. O'Brien
Janette M. O'Brien
Vice President