Form 8-K - CURRENT REPORT
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) July 22, 2004
SPRINGHILL LAKE INVESTORS LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
Maryland 0-14569 04-2848939
(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 July 22, 2004, Springhill Lake Investors Limited Partnership (the
"Partnership") refinanced the mortgage encumbering Springhill Lake Apartments
located in Greenbelt, Maryland. The new mortgage of $113,500,000 replaced
existing mortgage indebtedness of approximately $109,007,000. The new mortgage
bears interest at a variable rate and has a balloon payment of $113,500,000 due
on August 1, 2011. The interest rate on the variable rate loan is the Fannie Mae
discounted mortgage-backed security index plus 65 basis points. After repayment
of the existing mortgage, payment of closing costs, and funding of a repair
escrow account and operating reserves, the Partnership received net proceeds of
approximately $3,969,000. The Partnership also received a refund of
approximately $7,085,000 relating to the repair escrow required by the previous
lender. The Managing General Partner is evaluating the cash requirements of the
Registrant to determine what portion of the net proceeds and returned escrows
are available to distribute to the Partnership's partners.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
10(p) Form of Maryland Amended and Restated Multifamily Note
dated July 22, 2004 between Springhill Lake Investors
Limited Partnership and GMAC Commercial Mortgage
Corporation.*
(q) Form of Amended and Restated Limited Guaranty dated July
22, 2004 by AIMCO Properties, L.P., for the benefit of
GMAC Commercial Mortgage Corporation.*
(r) Form of Amended and Restated Payment Guaranty dated July
22, 2004 by the Operating Partnerships.*
(s) Form of Repair Escrow Agreement dated July 22, 2004
between Springhill Lake Investors Limited Partnership,
the Operating Partnerships and GMAC Commercial Mortgage
Corporation.*
(t) Form of Replacement Reserve Agreement dated July 22, 2004
between Springhill Lake Investors Limited Partnership,
the Operating Partnerships and GMAC Commercial Mortgage
Corporation.*
(u) Form of Maryland Amended and Restated Promissory Note
dated July 22, 2004 between Springhill Lake Investors
Limited Partnership and the Operating Partnerships.*
*Schedules and supplemental materials to the exhibit 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.
SPRINGHILL LAKE INVESTORS LIMITED PARTNERSHIP
By: AIMCO/Springhill Lake Investors GP, LLC
Managing General Partner
By: /s/Martha L. Long
Martha L. Long
Senior Vice President
Date: August 4, 2004
Exhibit 10(p)
FHLMC Loan No. 002708388
Springhill Lake Apartments
MARYLAND AMENDED
AND RESTATED PROMISSORY NOTE
REVISION DATE 7-01-2004
(REVISED FOR AMENDED/RESTATED MARYLAND IDOT)
THIS AMENDED AND RESTATED PROMISSORY NOTE is made and entered into as of
the 20th day of July, 2004, from FIRST SPRINGHILL LAKE LIMITED PARTNERSHIP, a
Maryland limited partnership, SECOND SPRINGHILL LAKE LIMITED PARTNERSHIP, a
Maryland limited partnership, THIRD SPRINGHILL LAKE LIMITED PARTNERSHIP, a
Maryland limited partnership, FOURTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a
Maryland limited partnership, FIFTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a
Maryland limited partnership, SIXTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a
Maryland limited partnership, SEVENTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a
Maryland limited partnership, EIGHTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a
Maryland limited partnership, NINTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a
Maryland limited partnership, SPRINGHILL COMMERCIAL LIMITED PARTNERSHIP, a
Maryland limited partnership and SPRINGFIELD FACILITIES, LLC, a Maryland limited
liability company, successor by merger to Springfield Facilities, Inc., a
Maryland corporation (collectively, "Borrower"), to SPRINGHILL LAKE INVESTORS
LIMITED PARTNERSHIP a Maryland limited partnership ("Lender").
PRELIMINARY STATEMENTS
A. A loan was made to Borrower in the original principal amount of One Hundred
Thirteen Million One Hundred Thousand and 00/100 Dollars ($113,100,000.00), the
repayment of which is evidenced by a Promissory Note dated as of November 1,
2002 (the "Original Note") from Borrower, as maker, to Lender, as payee.
B. Lender is the holder of the Original Note.
C. Borrower has confirmed to Lender that Borrower has no defenses to or offsets
of any kind against any of the indebtedness due under the Original Note.
D. Borrower has requested and Lender has agreed to make certain amendments to
the Original Note, including changing the interest rate and the terms of
payment. The Original Note is hereby being amended and restated in its entirety
to reflect such amendments.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender agree that the Original Note is hereby amended
and restated in its entirety as follows (as amended and restated, this "Note"):
Freddie Mac Loan No.002708388
Springhill Lake Apartments
PROMISSORY NOTE
(Adjustable Rate - 7-1-2004)
US $113,500,000.00 Effective Date: As of July 20, 2004
FOR VALUE RECEIVED, FIRST SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland
limited partnership, SECOND SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland
limited partnership, THIRD SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland
limited partnership, FOURTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland
limited partnership, FIFTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland
limited partnership, SIXTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland
limited partnership, SEVENTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland
limited partnership, EIGHTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland
limited partnership, NINTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland
limited partnership, SPRINGHILL COMMERCIAL LIMITED PARTNERSHIP, a Maryland
limited partnership, and SPRINGFIELD FACILITIES, LLC, a Maryland limited
liability company, successor by merger to Springfield Facilities, Inc., a
Maryland corporation (collectively, "Borrower") jointly and severally (if more
than one) promises to pay to the order of SPRINGHILL LAKE INVESTORS LIMITED
PARTNERSHIP, a Maryland limited partnership, (together with any subsequent
holder of this Note, "Lender"), the principal sum of One Hundred Thirteen
Million Five Hundred Thousand Dollars (US $113,500,000.00), with interest on the
unpaid principal balance at the Adjustable Interest Rate (as hereinafter
defined).
1. Defined Terms.
As used in this Note:
"Adjustable Interest Rate" means the variable annual interest rate
calculated for each Interest Adjustment Period so as to equal the
Index Rate for such Interest Adjustment Period (truncated at the
fifth (5th) decimal place if necessary) plus the Margin. However, in
no event will the Adjustable Interest Rate exceed the Capped
Interest Rate.
"Amortization Period" means a period of 0 full consecutive calendar
months.
"Base Recourse" means a portion of the Indebtedness equal to zero
percent (0%) of the original principal balance of this Note.
"Business Day" means any day other than a Saturday, a Sunday or any
other day on which Lender is not open for business.
"Capped Interest Rate" is not applicable, there is no Capped
Interest Rate for the Loan.
"Default Rate" means a variable annual interest rate equal to four
(4) percentage points above the Adjustable Interest Rate in effect
from time to time. However, at no time will the Default Rate exceed
the Maximum Interest Rate.
"Index Rate" means, for any Interest Adjustment Period, the
Reference Bill Index Rate for such Interest Adjustment Period.
"Installment Due Date" means, for any monthly installment of
interest only or principal and interest, the date on which such
monthly installment is due and payable pursuant to Section 3 of this
Note. The "First Installment Due Date" under this Note is September
1, 2004.
"Interest Adjustment Period" means each successive one (1) calendar
month period until the entire indebtedness due under this Note (the
"Indebtedness") is paid in full, except that the first Interest
Adjustment Period is the period from the date of this Note through
July 31, 2004. Therefore, the second Interest Adjustment Period
shall be the period from August 1, 2004 through August 31, 2004, and
so on until the entire Indebtedness is paid in full.
"Lender" means the holder from time to time of this Note.
"LIBOR Index" means the British Bankers Association's (BBA) one (1)
month LIBOR Rate for United States Dollar deposits, as displayed on
the LIBOR Index Page used to establish the LIBOR Index Rate.
"LIBOR Index Rate" means, for any Interest Adjustment Period after
the first Interest Adjustment Period, the BBA's LIBOR Rate for the
LIBOR Index released by the BBA most recently preceding the first
day of such Interest Adjustment Period, as such LIBOR Rate is
displayed on the LIBOR Index Page. The LIBOR Index Rate for the
first Interest Adjustment Period means the British Bankers
Association's (BBA) LIBOR Rate for the LIBOR Index released by the
BBA most recently preceding the first day of the month in which the
first Interest Adjustment Period begins, as such LIBOR Rate is
displayed on the LIBOR Index Page. "LIBOR Index Page" is the
Bloomberg L.P., page "BBAM", or such other page for the LIBOR Index
as may replace page BBAM on that service, or at the option of Lender
(i) the applicable page for the LIBOR Index on another service which
electronically transmits or displays BBA LIBOR Rates, or (ii) any
publication of LIBOR rates available from the BBA. In the event the
BBA ceases to set or publish a LIBOR rate/interest settlement rate
for the LIBOR Index, Lender will designate an alternative index, and
such alternative index shall constitute the LIBOR Index Rate.
"Loan" means the loan evidenced by this Note.
"Lockout Period" means the period from the date of this Note through
the day preceding the sixth (6th) Installment Due Date under this
Note.
"Margin" means sixty three one hundredths (.63) percentage points
(63 basis points).
"Maturity Date" means the earlier of (i) August 1, 2011 (the
"Scheduled Maturity Date"), and (ii) the date on which the unpaid
principal balance of this Note becomes due and payable by
acceleration or the exercise by Lender of any right or remedy under
this Note.
"Maximum Interest Rate" means the rate of interest that results in
the maximum amount of interest allowed by applicable law.
"Reference Bills(R)" means the unsecured general obligations of the
Federal Home Loan Mortgage Corporation ("Freddie Mac") designated by
Freddie Mac as "Reference Bills(R)" and having original durations to
maturity most comparable to the term of the Reference Bill Index,
and issued by Freddie Mac at regularly scheduled auctions. In the
event Freddie Mac shall at any time cease to designate any unsecured
general obligations of Freddie Mac as "Reference Bills", then at the
option of Lender (i) Lender may select from time to time another
unsecured general obligation of Freddie Mac having original
durations to maturity most comparable to the term of the Reference
Bill Index and issued by Freddie Mac at regularly scheduled
auctions, and the term "Reference Bills" as used in this Note shall
mean such other unsecured general obligations as selected by Lender;
or (ii) for any one or more Interest Adjustment Periods, Lender may
use the applicable LIBOR Index Rate as the Index Rate for such
Interest Adjustment Period(s).
"Reference Bill Index" means the one (1) month Reference Bills.
One-month reference bills have original durations to maturity of
approximately 30 days.
"Reference Bill Index Rate" means, for any Interest Adjustment
Period after the first Interest Adjustment Period, the Money Market
Yield for the Reference Bills as established by the Reference Bill
auction conducted by Freddie Mac most recently preceding the first
day of such Interest Adjustment Period, as displayed on the
Reference Bill Index Page. The Reference Bill Index Rate for the
first Interest Adjustment Period means the Money Market Yield for
the Reference Bills as established by the Reference Bill auction
conducted by Freddie Mac most recently preceding the first day of
the month in which the first Interest Adjustment Period begins, as
displayed on the Reference Bill Index Page. The "Reference Bill
Index Page" is the Freddie Mac Debt Securities Web Page (accessed
via the Freddie Mac internet site at www.freddiemac.com), or at the
option of Lender, any publication of Reference Bills auction results
available from Freddie Mac. However, if Freddie Mac has not
conducted a Reference Bill auction within the 60-calendar day period
prior to the first day of an Interest Adjustment Period, the
Reference Bill Index Rate for such Interest Adjustment Period will
be the LIBOR Index Rate for such Interest Adjustment Period.
"Remaining Amortization Period" means, at any point in time, the
number of consecutive calendar months equal to the number of months
in the Amortization Period minus the number of scheduled monthly
installments of principal and interest that have elapsed since the
date of this Note.
"Security Instrument" means the multifamily mortgage, deed to secure
debt or deed of trust effective as of the effective date of this
Note, from Borrower to or for the benefit of Lender and securing
this Note.
"Window Period" means the seventy eight (78) consecutive calendar
month period prior to the Scheduled Maturity Date.
"Yield Maintenance Period" means the period from and including the
day following the expiration of the Lockout Period (or if there is
no Lockout Period, from and including the date of this Note) until
but not including N/A.
2. Address for Payment. All payments due under this Note shall be payable
at c/o AIMCO, Stanford Place 3, 4582 S. Ulster Street Parkway, Suite 1100,
Denver, Colorado 80237, or such other place as may be designated by Notice to
Borrower from or on behalf of Lender.
3. Payments.
(a) Interest will accrue on the outstanding principal balance of
this Note at the Adjustable Interest Rate, subject to the provisions of Section
8 of this Note.
(b) Interest under this Note shall be computed, payable and
allocated on the basis of an actual/360 interest calculation schedule (interest
is payable for the actual number of days in each month, and each month's
interest is calculated by multiplying the unpaid principal amount of this Note
as of the first day of the month for which interest in being calculated by the
applicable Adjustable Interest Rate, dividing the product by 360, and
multiplying the quotient by the number of days in the month for which interest
is being calculated). For convenience in determining the amount of a monthly
installment of principal and interest under this Note, Lender will use a 30/360
interest calculation payment schedule (each year is treated as consisting of
twelve 30-day months). However, as provided above, the portion of the monthly
installment actually payable as and allocated to interest will be based upon an
actual/360 interest calculation schedule, and the amount of each installment
attributable to principal and the amount attributable to interest will vary
based upon the number of days in the month for which such installment is paid.
Each monthly payment of principal and interest will first be applied to pay in
full interest due, and the balance of the monthly payment paid by Borrower will
be credited to principal.
(c) Unless disbursement of principal is made by Lender to Borrower
on the first day of a calendar month, interest for the period beginning on the
date of disbursement and ending on and including the last day of such calendar
month shall be payable by Borrower simultaneously with the execution of this
Note. If disbursement of principal is made by Lender to Borrower on the first
day of a calendar month, then no payment will be due from Borrower at the time
of the execution of this Note. The Installment Due Date for the first monthly
installment payment under Section 3(d) of interest only or principal and
interest, as applicable, will be the First Installment Due Date set forth in
Section 1(a) of this Note. Except as provided in this Section 3(c) and in
Section 10, accrued interest will be payable in arrears.
(d) Beginning on the First Installment Due Date, and continuing
until and including the monthly installment due on the Maturity Date, accrued
interest only shall be payable by Borrower in consecutive monthly installments
due and payable on the first day of each calendar month. The amount of the
monthly installment of interest only payable pursuant to this Section 3(d) on an
Installment Due Date shall equal the product of (i) annual interest on the
unpaid principal balance of this Note as of the first day of the Interest
Adjustment Period immediately preceding the Installment Due Date at the
Adjustable Interest Rate in effect for such Interest Adjustment Period, divided
by 360, multiplied by (ii) the number of days in such Interest Adjustment
Period.
(e) All remaining Indebtedness, including all principal and
interest, shall be due and payable by Borrower on the Maturity Date.
(f) Lender shall provide Borrower with notice, given in the manner
specified in this Note, of the amount of each monthly installment due under this
Note. However, if Lender has not provided Borrower with prior notice of the
monthly payment due on any Installment Due Date, then Borrower shall pay on that
Installment Due Date an amount equal to the monthly installment payment for
which Borrower last received notice. If Lender at any time determines that
Borrower has paid one or more monthly installments in an incorrect amount
because of the operation of the preceding sentence, or because Lender has
miscalculated the Adjustable Interest Rate or has otherwise miscalculated the
amount of any monthly installment, then Lender shall give notice to Borrower of
such determination. If such determination discloses that Borrower has paid less
than the full amount due for the period for which the determination was made,
Borrower, within 30 calendar days after receipt of the notice from Lender, shall
pay to Lender the full amount of the deficiency. If such determination discloses
that Borrower has paid more than the full amount due for the period for which
the determination was made, then the amount of the overpayment shall be credited
to the next installment(s) of interest only or principal and interest, as
applicable, due under this Note (or, if an Event of Default has occurred and is
continuing, such overpayment shall be credited against any amount owing by
Borrower to Lender).
(g) All payments under this Note shall be made in immediately
available U.S. funds.
(h) Any regularly scheduled monthly installment of interest only or
principal and interest payable pursuant to this Section 3 that is received by
Lender before the date it is due shall be deemed to have been received on the
due date for the purpose of calculating interest due.
(i) Any accrued interest remaining past due for 30 days or more, at
Lender's discretion, may be added to and become part of the unpaid principal
balance of this Note and any reference to "accrued interest" shall refer to
accrued interest which has not become part of the unpaid principal balance. Any
amount added to principal pursuant to this Note shall bear interest at the
applicable rate or rates specified in this Note and shall be payable with such
interest upon demand by Lender and absent such demand, as provided in this Note
for the payment of principal and interest.
(j) In accordance with Section 14, interest charged under this Note
cannot exceed the Maximum Interest Rate. If the Adjustable Interest Rate at any
time exceeds the Maximum Interest Rate, resulting in the charging of interest
hereunder to be limited to the Maximum Interest Rate, then any subsequent
reduction in the Adjustable Interest Rate shall not reduce the rate at which
interest under this Note accrues below the Maximum Interest Rate until the total
amount of interest accrued hereunder equals the amount of interest which would
have accrued had the Adjustable Interest Rate at all times been in effect.
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 the amount received 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. Reserved.
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 Section 10, if any, and all other amounts payable under this Note
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.
(a) If any monthly installment of interest or principal and interest
or other amount payable under this Note is not received in full by Lender within
five (5) days after the installment or other amount is due, counting from and
including the date such installment or other 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 installment or other amount due (unless applicable law
requires a lesser amount be charged, in which event such lesser amount shall be
substituted).
(b) Borrower acknowledges that its failure to make timely payments
will cause Lender to incur additional expenses in servicing and processing 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 Section 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 Section 8.
8. Default Rate.
(a) So long as (i) any monthly installment under this Note remains
past due for thirty (30) days or more or (ii) any other Event of Default has
occurred and is continuing, then notwithstanding anything in Section 3 of this
Note to the contrary, interest under this Note shall accrue on the unpaid
principal balance from the Installment Due Date of the first such unpaid monthly
installment or the occurrence of such other Event of Default, as applicable, at
the Default Rate.
(b) From and after the Maturity Date, the unpaid principal balance
shall continue to bear interest at the Default Rate until and including the date
on which the entire principal balance is paid in full.
(c) Borrower acknowledges that (i) its failure to make timely
payments will cause Lender to incur additional expenses in servicing and
processing the Loan, (ii) during the time that any monthly installment under
this Note is delinquent for thirty (30) days or more, 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 (iii) 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 thirty (30) days or more 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. Reserved.
10. Voluntary and Involuntary Prepayments.
(a) Any receipt by Lender of principal due under this Note prior to
the Scheduled Maturity Date, other than principal required to be paid in monthly
installments pursuant to Section 3, constitutes a prepayment of principal under
this Note. Without limiting the foregoing, any application by Lender, prior to
the Scheduled Maturity Date, of any proceeds of collateral or other security to
the repayment of any portion of the unpaid principal balance of this Note
constitutes a prepayment under this Note.
(b) Borrower may not voluntarily prepay any portion of the principal
balance of this Note during the Lockout Period, if a Lockout Period is
applicable to this Note. However, if any portion of the principal balance of
this Note is prepaid during the Lockout Period by reason of the application by
Lender of any proceeds of collateral or other security to any portion of the
unpaid principal balance of this Note or following a determination that the
prohibition on voluntary prepayments during the Lockout Period is in
contravention of applicable law, then Borrower must also pay to Lender upon
demand by Lender, a prepayment premium equal to five percent (5.0%) of the
amount of principal being prepaid.
(c) Following the end of the Lockout Period, 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 Notice from
Borrower to Lender given at least 30 days prior to the date of such prepayment.
Unless otherwise expressly provided in the Loan Documents, Borrower may not
voluntarily prepay less than all of the unpaid principal balance of this Note.
(d) Borrower acknowledges that Lender has agreed that principal may
be prepaid other than on the last calendar day of a month only because, for the
purposes of 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 the month in which the prepayment occurs.
(e) In order to voluntarily prepay all or any part of the principal
of this Note, Borrower must also pay to Lender, together with the amount of
principal being prepaid, (i) all accrued and unpaid interest due under this
Note, plus (ii) all other sums due to Lender at the time of such prepayment,
plus (ii) any prepayment premium calculated pursuant to Section 10(f).
(f) Reserved.
(g) Notwithstanding any other provision of this Section 10, no
prepayment premium shall be payable with respect to any prepayment made during
the Window Period.
(h) Unless Lender agrees otherwise in writing, a 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.
(i) Borrower recognizes that any prepayment of any of the unpaid
principal balance of this Note, whether voluntary or involuntary or resulting
from an Event of 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.
Borrower further acknowledges that any lockout and the prepayment premium
provisions of this Note are a material part of the consideration for the Loan,
and 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 lockout and prepayment
premium provisions.
11. Costs and Expenses. To the fullest extent allowed by applicable law,
Borrower shall pay all expenses and costs, including attorneys' fees and costs
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, 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).
12. Forbearance. Any forbearance by Lender in exercising any right or
remedy under this Note 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. Borrower and all endorsers and guarantors of this Note and
all other third party obligors waive 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 under this Note.
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. 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 this Note,
whether considered separately or together with other charges, 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 this 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 this Note.
15. Commercial Purpose. Borrower represents that Borrower is incurring the
Indebtedness 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 State of
Maryland.
18. Captions. The captions of the Sections 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 (a "Notice") under or concerning this Note shall be in writing.
Notices to Borrower shall be addressed to c/o AIMCO, Stanford Place 3, 4582
Ulster Street Parkway, Suite 1100, Denver, Colorado 80237, and Notices to Lender
shall be addressed to the then-current address for payments to Lender under this
Note. A Notice shall be deemed given on the earliest to occur of (i) the date
when the Notice is received by the addressee; (ii) the first Business Day after
the Notice is delivered to a recognized overnight courier service, with
arrangements made for payment of charges for next Business Day delivery; or
(iii) the third Business Day after the Notice is deposited in the United States
mail with postage prepaid, certified mail, return receipt requested. As used in
this Note, the term "Business Day" means any day other than a Saturday, a Sunday
or any other on which the U.S. Postal Service is not open for business. Any
party may change the address to which Notices intended for it are to be directed
by means of Notice given to the other party. Each party agrees that it will not
refuse or reject delivery of any Notice given in accordance with this Section
19, that it will acknowledge, in writing, the receipt of any Notice upon request
by the other party and that any Notice rejected or refused by it shall be deemed
for purposes of this Section 19 to have been received by the rejecting party on
the date so refused or rejected, as conclusively established by the records of
the U.S. Postal Service or the courier service.
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.
20. Consent to Jurisdiction and Venue. Borrower agrees that any
controversy arising under or in relation to this Note may be litigated in the
State of Maryland. The state and federal courts and authorities with
jurisdiction in the State of Maryland shall have jurisdiction over all
controversies that 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. However, nothing in this
Note is intended to limit any right that Lender may have to bring any suit,
action or proceeding relating to matters arising under this Note in any court
which has jurisdiction over the parties or matters at issue under applicable
law.
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 Exhibit noted below, if marked with an "X" in the
space provided, is attached to this Note:
[_X_] Exhibit A Modifications to Promissory Note
IN WITNESS WHEREOF, and in consideration of the Lender's agreement to lend
Borrower the principal amount set forth above, 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.
WITNESS: FIRST SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
_________________________
Print Name: By: Springhill Lake Investors
Limited Partnership, a Maryland
limited partnership, its sole
general partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a Delaware
limited liability company, its
sole general partner
By: AIMCO Properties, L.P., a
Delaware limited
partnership, its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
WITNESS:
SECOND SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
___________________
Print Name: ___________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a Delaware
limited liability company, its
sole general partner
By: AIMCO Properties, L.P., a
Delaware limited
partnership, its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
WITNESS:
THIRD SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
________________________
Print Name: ____________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a Delaware
limited liability company, its
sole general partner
By: AIMCO Properties, L.P., a
Delaware limited
partnership, its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
WITNESS:
FOURTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
_______________________
Print Name: __________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a Delaware
limited liability company, its
sole general partner
By: AIMCO Properties, L.P., a
Delaware limited
partnership, its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
WITNESS:
FIFTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
________________________
Print Name: ______________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a Delaware
limited liability company, its
sole general partner
By: AIMCO Properties, L.P., a
Delaware limited
partnership, its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
WITNESS:
SIXTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
____________________
Print Name: ______________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a Delaware
limited liability company, its
sole general partner
By: AIMCO Properties, L.P., a
Delaware limited
partnership, its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
WITNESS:
SEVENTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
_________________________
Print Name: ___________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a Delaware
limited liability company, its
sole general partner
By: AIMCO Properties, L.P., a
Delaware limited
partnership, its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
WITNESS:
EIGHTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
____________________________
Print Name: ____________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a Delaware
limited liability company, its
sole general partner
By: AIMCO Properties, L.P., a
Delaware limited
partnership, its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
WITNESS:
NINTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
_______________________
Print Name: _______________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a Delaware
limited liability company, its
sole general partner
By: AIMCO Properties, L.P., a
Delaware limited
partnership, its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
WITNESS:
SPRINGHILL COMMERCIAL LIMITED
PARTNERSHIP, a Maryland limited
partnership
______________________
Print Name: ____________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a Delaware
limited liability company, its
sole general partner
By: AIMCO Properties, L.P., a
Delaware limited
partnership, its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
SPRINGFIELD FACILITIES, LLC, a Maryland
limited liability company (successor
by merger to Springfield Facilities,
Inc., a Maryland corporation)
By: Springhill Commercial Limited
Partnership, a Maryland limited
partnership, its sole member
By: Springhill Lake Investors
Limited Partnership, a
Maryland limited partnership,
its sole general partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a
Delaware limited
liability company, its
general partner
By: AIMCO Properties,
L.P., a Delaware
limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware
corporation, its
sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
ALLONGE ATTACHED TO AND MADE A PART OF PROMISSORY NOTE DATED AS OF JULY 20,
2004, FROM FIRST SPRINGHILL LAKE LIMITED PARTNERSHIP, SECOND SPRINGHILL LAKE
LIMITED PARTNERSHIP, THIRD SPRINGHILL LAKE LIMITED PARTNERSHIP, FOURTH
SPRINGHILL LAKE LIMITED PARTNERSHIP, FIFTH SPRINGHILL LAKE LIMITED PARTNERSHIP,
SIXTH SPRINGHILL LAKE LIMITED PARTNERSHIP, SEVENTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, EIGHTH SPRINGHILL LAKE LIMITED PARTNERSHIP, NINTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, SPRINGHILL COMMERCIAL LIMITED PARTNERSHIP, AND SPRINGFIELD
FACILITIES, LLC, (SUCCESSOR BY MERGER TO SPRINGFIELD FACILITIES, INC.),
COLLECTIVELY, AS BORROWER, TO THE ORDER OF SPRINGHILL LAKE INVESTORS LIMITED
PARTNERSHIP, AS LENDER
Pay to the order of GMAC Commercial Mortgage Corporation with full recourse.
WITNESS: SPRINGHILL LAKE INVESTORS LIMITED
PARTNERSHIP, a Maryland limited
partnership
________________________
Print Name: ____________ By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited
partnership, its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
Payments of principal, interest (including at the Default Rate), late charges,
or prepayment premium received by GMAC Commercial Mortgage Corporation
("Mortgage Lender") or any subsequent holder of this Note under this Note shall
be credited against the corresponding payment of principal, interest, late
charges or prepayment premium due under that certain $113,500,000.00 Amended and
Restated Multifamily Note dated as of July 20, 2004 from Springhill Lake
Investors Limited Partnership, to the order of Mortgage Lender (the "Multifamily
Note"). If the Multifamily Note is paid in full, then Springhill Lake Investors
Limited Partnership will have the right and option to purchase this Note from
the then holder of this Note for $1.
Pay to the order of Federal Home Loan Mortgage Corporation, without recourse.
GMAC COMMERCIAL MORTGAGE CORPORATION, WITNESS:
a California corporation
________________
Print Name:
By: /s/Max W. Foore (SEAL)
Max W. Foore
Vice President
Exhibit 10(q)
Freddie Mac Loan No. 002708388
Springhill Lake Apartments
LIMITED GUARANTY
(MULTISTATE - REVISION DATE 11-01-2000)
(REVISED FOR AMENDED/RESTATED MARYLAND IDOT)
This Limited Guaranty ("Guaranty") is entered into as of July 22, 2004, by
the undersigned person(s) (the "Guarantor" whether one or more), for the benefit
of GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation, and any
subsequent holder of the Note (the "Lender").
RECITALS
A. SPRINGHILL LAKE INVESTORS LIMITED PARTNERSHIP, a Maryland limited
partnership ("Borrower") has requested that Lender make a loan to Borrower in
the amount of $113,500,000.00 (the "Loan"). The Loan will be evidenced by an
Amended and Restated Multifamily Note from Borrower to Lender dated as of the
date of this Guaranty (the "Note"). The Note is guaranteed by an Amended and
Restated Guaranty ("Grantor's Guaranty") executed by FIRST SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, SECOND SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, THIRD SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, FOURTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, FIFTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, SIXTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, SEVENTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, EIGHTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, NINTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, SPRINGHILL COMMERCIAL
LIMITED PARTNERSHIP, a Maryland limited partnership ("Springhill Commercial")
and SPRINGFIELD FACILITIES, LLC, a Maryland limited liability company, successor
by merger to Springfield Facilities, Inc., a Maryland corporation (collectively,
"Grantor") and dated of even date herewith. Grantor's obligations under the Loan
Documents (defined below) are secured by an Amended and Restated Multifamily
Indemnity Deed of Trust, Assignment of Rents and Security Agreement and
Confirmation of Trustee, effective as of the date as the Note (the "Security
Instrument"), encumbering the real property described in the Security Instrument
(the "Property"). The Note is also secured by an Ownership Interest Pledge (the
"Pledge") executed by Borrower and Springhill Commercial (together, "Pledgor").
The Note, the Grantor's Guaranty, the Security Instrument, and the Pledge are
among the "Loan Documents" as that term is used herein and defined in the
Security Instrument.
B. As a condition to making the Loan to Borrower, Lender requires that the
Guarantor execute this Guaranty.
C. Guarantor represents to Lender that Guarantor has a direct or indirect
ownership in Borrower and Grantor and will derive a material financial benefit
from the making of the Loan.
NOW, THEREFORE, in order to induce Lender to make the Loan to Borrower,
and in consideration thereof, Guarantor agrees as follows:
1. "Indebtedness" and other capitalized terms used but not defined in
this Guaranty shall have the meanings assigned to them in the
Security Instrument.
2. Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Lender the full and prompt payment when due, whether
at maturity or earlier, by reason of acceleration or otherwise, and
at all times thereafter, and the full and prompt performance when
due, of all of the following:
(a) A portion of the Indebtedness equal to zero percent (0%) of the
original principal balance of the Note (the "Base Guaranty").
(b) In addition to the Base Guaranty, all other amounts for which either
or both Borrower and Grantor is personally liable under Sections
9(c), 9(d) and 9(f) of the Note or Sections 6(c), 6(d), and 6(f) of
the Security Instrument.
(c) The payment and performance of all of Borrower's and Grantor's
obligations under Section 18 of the Security Instrument.
(d) The entire Indebtedness, in the event that (i) Borrower or
Grantor or Pledgor becomes subject to any bankruptcy,
reorganization, receivership, insolvency or other similar
proceeding (other than a proceeding initiated by Lender)
pursuant to any federal or state law affecting debtor and
creditor rights, or (ii) an order for relief is entered against
Borrower, Grantor, or Pledgor in any such proceeding (other than
in a proceeding initiated by Lender).
(e) All costs and expenses, including reasonable fees and out of pocket
expenses of attorneys and expert witnesses, incurred by Lender in
enforcing its rights under this Guaranty.
(f) The amount of all recordation, transfer, documentary, or
similar taxes, if any, that may be due because of the making of
the loan evidenced by the Note, the execution, delivery or
recordation of the Security Instrument, the execution or delivery
of the Grantor's Guaranty or this Guaranty, the occurrence of any
Event of Default under the Security Instrument, or otherwise
arising out of the loan transaction to which the Loan Documents
pertain, plus all interest, penalties and fines that may be or
may become due.
(g) If the Base Guaranty is stated in Paragraph 2(a) to be 100% of
the original or unpaid principal balance of the Note, then: (i)
the Base Guaranty shall mean and include the full and complete
guaranty of payment and performance of the entire Indebtedness
and of all Borrower's obligations under the Loan Documents; and
(ii) for so long as the Base Guaranty remains in effect (there
shall be no limit to the duration of the Base Guaranty unless
otherwise expressly provided in this Guaranty), the obligations
guaranteed pursuant to Paragraphs 2(b), 2(c) and 2(d) shall be
part of, and not in addition to or in limitation of, the Base
Guaranty. If this Guaranty is titled as a "Limited" Guaranty,
such title shall not affect the interpretation or application of
this Paragraph 2(g). If the Base Guaranty is stated in Paragraph
2(a) to be other than 100% of the original or unpaid principal
balance of the Note, then this Paragraph 2(g) shall be completely
inapplicable and shall be treated as if not a part of this
Guaranty.
If Guarantor is not liable for the entire Indebtedness, then for purposes of
determining Guarantor's liability under this Guaranty, all payments made by
Borrower or Grantor 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 neither Borrower nor
Guarantor has personal liability.
3. The obligations of Guarantor under this Guaranty shall survive any
foreclosure proceeding, any foreclosure sale, any delivery of any deed in lieu
of foreclosure, and any release of record of the Security Instrument, and, in
addition, the obligations of Guarantor relating to Borrower's and Grantor's
obligations under Section 18 of the Security Instrument shall survive any
repayment or discharge of the Indebtedness.
4. Guarantor's obligations under this Guaranty constitute an unconditional
guaranty of payment and performance and not merely a guaranty of collection.
5. The obligations of Guarantor under this Guaranty shall be performed
without demand by Lender and shall be unconditional irrespective of the
genuineness, validity, regularity or enforceability of the Note, the Security
Instrument, or any other Loan Document, and without regard to any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety, a guarantor, a borrower or a mortgagor. Guarantor hereby waives the
benefit of all principles or provisions of law, statutory or otherwise, which
are or might be in conflict with the terms of this Guaranty and agrees that
Guarantor's obligations shall not be affected by any circumstances, whether or
not referred to in this Guaranty, which might otherwise constitute a legal or
equitable discharge of a surety, a guarantor, a borrower or a mortgagor.
Guarantor hereby waives the benefits of any right of discharge under any and all
statutes or other laws relating to a guarantor, a surety, a borrower or a
mortgagor, and any other rights of a surety, a guarantor, a borrower or a
mortgagor thereunder. Without limiting the generality of the foregoing,
Guarantor hereby waives, to the fullest extent permitted by law, diligence in
collecting the Indebtedness, presentment, demand for payment, protest, all
notices with respect to the Note and this Guaranty which may be required by
statute, rule of law or otherwise to preserve Lender's rights against Guarantor
under this Guaranty, including, but not limited to, notice of acceptance, notice
of any amendment of the Loan Documents, notice of the occurrence of any default
or Event of Default, notice of intent to accelerate, notice of acceleration,
notice of dishonor, notice of foreclosure, notice of protest, and notice of the
incurring by Borrower or Grantor of any obligation or indebtedness. Guarantor
also waives, to the fullest extent permitted by law, all rights to require
Lender to (a) proceed against Borrower or any other guarantor of Borrower's or
Grantor's payment or performance with respect to the Indebtedness (an "Other
Guarantor") (b) if Borrower, Grantor or any Other Guarantor is a partnership,
proceed against any general partner of Borrower, Grantor or the Other Guarantor,
(c) proceed against or exhaust any collateral held by Lender to secure the
repayment of the Indebtedness, or (d) pursue any other remedy it may now or
hereafter have against Borrower or Grantor, or, if Borrower or Grantor is a
partnership, any general partner of Borrower or Grantor. Guarantor further
waives, to the fullest extent permitted by applicable law, any right to revoke
this Guaranty as to any future advances by Lender under the Security Instrument
to protect Lender's interest in the Property.
6. At any time or from time to time and any number of times, without
notice to Guarantor and without affecting the liability of Guarantor, (a) the
time for payment of the principal of or interest on the Indebtedness may be
extended or the Indebtedness may be renewed in whole or in part; (b) the time
for Borrower's or Grantor's performance of or compliance with any covenant or
agreement contained in the Note, the Grantor's Guaranty, the Security Instrument
or any other Loan Document, whether presently existing or hereinafter entered
into, may be extended or such performance or compliance may be waived; (c) the
maturity of the Indebtedness may be accelerated as provided in the Note, the
Security Instrument, or any other Loan Document; (d) the Note, the Security
Instrument, or any other Loan Document may be modified or amended by Lender and
Borrower in any respect, including, but not limited to, an increase in the
principal amount; and (e) any security for the Indebtedness may be modified,
exchanged, surrendered or otherwise dealt with or additional security may be
pledged or mortgaged for the Indebtedness.
7. If more than one person executes this Guaranty, the obligations of
those persons under this Guaranty shall be joint and several. Lender, in its
sole and absolute discretion, may (a) bring suit against Guarantor, or any one
or more of the persons constituting Guarantor, and Grantor and any Other
Guarantor, jointly and severally, or against any one or more of them; (b)
compromise or settle with any one or more of the persons constituting Guarantor
for such consideration as Lender may deem proper; (c) release one or more of the
persons constituting Guarantor, or Grantor or any Other Guarantor, from
liability; and (d) otherwise deal with Guarantor and Grantor and any Other
Guarantor, or any one or more of them, in any manner, and no such action shall
impair the rights of Lender to collect from Guarantor any amount guaranteed by
Guarantor under this Guaranty. Nothing contained in this paragraph shall in any
way affect or impair the rights or obligations of Guarantor with respect to any
Other Guarantor.
8. Any indebtedness of Borrower or Grantor held by Guarantor now or in the
future is and shall be subordinated to the Indebtedness and any such
indebtedness of Borrower or Grantor shall be collected, enforced and received by
Guarantor, as trustee for Lender, but without reducing or affecting in any
manner the liability of Guarantor under the other provisions of this Guaranty.
9. Guarantor shall have no right of, and hereby waives any claim for,
subrogation or reimbursement against Borrower or Grantor or any general partner
of Borrower or Grantor by reason of any payment by Guarantor under this
Guaranty, whether such right or claim arises at law or in equity or under any
contract or statute, until the Indebtedness has been paid in full and there has
expired the maximum possible period thereafter during which any payment made by
Borrower or Grantor to Lender with respect to the Indebtedness could be deemed a
preference under the United States Bankruptcy Code.
10. If any payment by Borrower or Grantor is held to constitute a
preference under any applicable bankruptcy, insolvency, or similar laws, or if
for any other reason Lender is required to refund any sums to Borrower or
Grantor, such refund shall not constitute a release of any liability of
Guarantor under this Guaranty. It is the intention of Lender and Guarantor that
Guarantor's obligations under this Guaranty shall not be discharged except by
Guarantor's performance of such obligations and then only to the extent of such
performance.
11. Guarantor shall from time to time, upon request by Lender, deliver to
Lender such financial statements as Lender may reasonably require.
12. Lender may assign its rights under this Guaranty in whole or in part
and upon any such assignment, all the terms and provisions of this Guaranty
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 include, in addition to Lender, any lawful owner, holder or
pledgee of the Note. Reference herein to "person" or "persons" shall be deemed
to include individuals and entities.
13. This Guaranty 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 Guaranty and the other Loan Documents. Guarantor acknowledges that
Guarantor has received copies of the Note and all other Loan Documents. Neither
this Guaranty nor any of its provisions may be waived, modified, amended,
discharged, or terminated except by an agreement 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
agreement.
14. Guarantor agrees that any controversy arising under or in relation to
this Guaranty shall be litigated exclusively in the jurisdiction where 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 Guaranty, the Note, the Security Instrument or any other Loan Document.
Guarantor 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.
15. GUARANTOR AND LENDER EACH (A) AGREES NOT TO ELECT A TRIAL BY JURY WITH
RESPECT TO ANY ISSUE ARISING OUT OF THIS GUARANTY OR THE RELATIONSHIP BETWEEN
THE PARTIES AS GUARANTOR AND LENDER 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 Guaranty:
|X| Exhibit A Modifications to Guaranty
IN WITNESS WHEREOF, Guarantor has signed and delivered this Guaranty under
seal or has caused this Guaranty to be signed and delivered under seal by its
duly authorized representative. Guarantor intends that this Guaranty shall be
deemed to be signed and delivered as a sealed instrument.
GUARANTOR:
AIMCO PROPERTIES, L.P., a Delaware
limited partnership
By: AIMCO-GP, Inc., a Delaware
corporation, its general partner
By: /s/Patti K. Fielding
Patti K. Fielding
Executive Vice President
Exhibit 10(r)
FHLMC Loan No. 002708388
Springhill Lake Apartments
AMENDED AND RESTATED
GUARANTY
MARYLAND IDOT - 100% PROPERTY OWNER GUARANTY
REVISION DATE 4-7-03
(REVISED FOR AMENDED/RESTATED MARYLAND IDOT)
This Amended and Restated Guaranty ("Guaranty") is entered into to be
effective as of July 22, 2004, by the undersigned person(s) (the "Guarantor"
jointly and severally if more than one), for the benefit of GMAC COMMERCIAL
MORTGAGE CORPORATION, a California corporation (the "Lender").
RECITALS
A. A loan (the "Loan") was made by SPRINGHILL LAKE INVESTORS LIMITED
PARTNERSHIP, a Maryland limited partnership ("Borrower") in the original
principal amount of One Hundred Thirteen Million One Hundred Thousand and 00/100
Dollars ($113,100,000.00), the repayment of which is evidenced by a
Consolidated, Amended and Restated Multifamily Note dated as of November 1, 2002
(the "Original Note") from Borrower, as maker, to Lender, as payee.
B. Borrower's obligations under the Original Note are guaranteed by a
Consolidated, Amended and Restated Payment Guaranty dated as of November 1, 2002
(the "Original Guaranty") from Guarantor to Lender.
C. Lender is the current holder of the Original Note and the Original Guaranty.
D. Borrower has requested and Lender has agreed to make certain amendments to
the Original Note, including changing the interest rate and the terms of
payment. The amended Loan will be evidenced by an Amended and Restated
Multifamily Note from Borrower to Lender dated effective as of the effective
date of this Guaranty (the "Note").
E. This Guaranty will be secured by an Amended and Restated Multifamily
Indemnity Deed of Trust, Assignment of Rents and Security Agreement and
Confirmation of Trustee dated effective as of the effective date of this
Guaranty (the "Security Instrument"), encumbering the Mortgaged Property
described in the Security Instrument.
F. As a condition to amending the Loan, Lender requires that the Guarantor
execute this Guaranty.
NOW, THEREFORE, in order to induce Lender to amend the Loan to Borrower,
and in consideration thereof, Guarantor agrees as follows:
1. Defined Terms. "Indebtedness," "Loan Documents" and "Property
Jurisdiction" and other capitalized terms used but not defined
in this Guaranty shall have the meanings assigned to them in
the Security Instrument.
2. Scope of Guaranty. Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to Lender the full
and complete payment when due of the entire Indebtedness and
each and every installment thereof, and the full and timely
performance of all Borrower's obligations under the Loan
Documents.
3. Intentionally Omitted.
4. Guarantor's Obligations Survive Foreclosure. The obligations
of Guarantor under this Guaranty shall survive any foreclosure
proceeding, any foreclosure sale, any delivery of any deed in
lieu of foreclosure, and any release of record of the Security
Instrument, and, in addition, the obligations of Guarantor
under Section 18 of the Security Instrument shall survive any
repayment or discharge of the Indebtedness. Notwithstanding
the foregoing, if Lender has never been a
mortgagee-in-possession of or held title to the Mortgaged
Property, Guarantor shall have no obligation under this
Guaranty relating to obligations under Section 18 of the
Security Instrument after the date of the release of record of
the lien of the Security Instrument as a result of the payment
in full of the Indebtedness on the Maturity Date or by
voluntary prepayment in full. Guarantor is a party to, and
direct obligor under, the Security Instrument and certain
other of the Loan Documents. Nothing in this Guaranty is meant
to in any way diminish Guarantor's direct obligations and
liabilities under such Loan Documents, and Lender may exercise
all rights and remedies against Guarantor and the Mortgaged
Property under such Loan Documents with or without proceeding
under this Guaranty, at Lender's option.
5. Guaranty of Payment and Performance. Guarantor's obligations
under this Guaranty constitute an unconditional guaranty of
payment and performance and not merely a guaranty of
collection.
6. No Demand by Lender Necessary; Waivers by Guarantor. The
obligations of Guarantor under this Guaranty shall be
performed without demand by Lender and shall be unconditional
regardless of the genuineness, validity, regularity or
enforceability of the Note, the Security Instrument, or any
other Loan Document, and without regard to any other
circumstance which might otherwise constitute a legal or
equitable discharge of a surety, a guarantor, a borrower or a
mortgagor. Guarantor hereby waives, to the fullest extent
permitted by applicable law:
(a) the benefit of all principles or provisions of law, statutory
or otherwise, which are or might be in conflict with the terms
of this Guaranty and agrees that Guarantor's obligations shall
not be affected by any circumstances, whether or not referred
to in this Guaranty, which might otherwise constitute a legal
or equitable discharge of a surety, a guarantor, a borrower or
a mortgagor;
(b) the benefits of any right of discharge under any and all
statutes or other laws relating to a guarantor, a surety, a
borrower or a mortgagor, and any other rights of a surety, a
guarantor, a borrower or a mortgagor under such statutes or
laws;
(c) diligence in collecting the Indebtedness, presentment, demand
for payment, protest, all notices with respect to the Note and
this Guaranty which may be required by statute, rule of law or
otherwise to preserve Lender's rights against Guarantor under
this Guaranty, including, but not limited to, notice of
acceptance, notice of any amendment of the Loan Documents,
notice of the occurrence of any default or Event of Default,
notice of intent to accelerate, notice of acceleration, notice
of dishonor, notice of foreclosure, notice of protest, and
notice of the incurring by Borrower of any obligation or
indebtedness;
(d) all rights to cause a marshalling of the Borrower's assets or
to require Lender to:
(i) proceed against Borrower or any other guarantor of Borrower's
payment or performance under the Loan Documents (an "Other
Guarantor");
(ii) proceed against any general partner of Borrower or any Other
Guarantor if Borrower or any Other Guarantor is a partnership;
(iii) proceed against or exhaust any collateral held by Lender to
secure the repayment of the Indebtedness; or
(iv) pursue any other remedy it may now or hereafter have against
Borrower, or, if Borrower is a partnership, any general
partner of Borrower; and
(e) any right to object to the timing, manner or conduct of
Lender's enforcement of its rights under any of the Loan
Documents; and
(f) any right to revoke this Guaranty as to any future advances by
Lender under the terms of the Security Instrument to protect
Lender's interest in the Mortgaged Property.
7. Modification of Loan Documents. At any time or from time to
time and any number of times, without notice to Guarantor and
without affecting the liability of Guarantor, Lender may:
(a) extend the time for payment of the principal of or interest on
the Indebtedness or renew the Indebtedness in whole or in
part;
(b) extend the time for Borrower's performance of or compliance
with any covenant or agreement contained in the Note, the
Security Instrument or any other Loan Document, whether
presently existing or hereinafter entered into, or waive such
performance or compliance;
(c) accelerate the Maturity Date of the Indebtedness as provided
in the Note, the Security Instrument, or any other Loan
Document;
(d) with Borrower, modify or amend the Note, the Security
Instrument, or any other Loan Document in any respect,
including, but not limited to, an increase in the principal
amount; and/or
(e) modify, exchange, surrender or otherwise deal with any
security for the Indebtedness or accept additional security
that is pledged or mortgaged for the Indebtedness.
8. Joint and Several Liability. The obligations of Guarantor (and
each party named as a Guarantor in this Guaranty) and any
Other Guarantor shall be joint and several. Lender, in its
sole and absolute discretion, may:
(a) bring suit against Guarantor, or any one or more of the
parties named as a Guarantor in this Guaranty, and any Other
Guarantor, jointly and severally, or against any one or more
of them;
(b) compromise or settle with Guarantor, any one or more of the
parties named as a Guarantor in this Guaranty, or any Other
Guarantor, for such consideration as Lender may deem proper;
(c) release one or more of the parties named as a Guarantor in
this Guaranty, or any Other Guarantor, from liability; and
(d) otherwise deal with Guarantor and any Other Guarantor, or any
one or more of them, in any manner, and no such action shall
impair the rights of Lender to collect from Guarantor any
amount guaranteed by Guarantor under this Guaranty.
9. Subordination of Borrower's Indebtedness to Guarantor. Any
indebtedness of Borrower held by Guarantor now or in the
future is and shall be subordinated to the Indebtedness and
Guarantor shall collect, enforce and receive any such
indebtedness of Borrower as trustee for Lender, but without
reducing or affecting in any manner the liability of Guarantor
under the other provisions of this Guaranty.
10. Waiver of Subrogation. Guarantor shall have no right of, and
hereby waives any claim for, subrogation or reimbursement
against Borrower or any general partner of Borrower by reason
of any payment by Guarantor under this Guaranty, whether such
right or claim arises at law or in equity or under any
contract or statute, until the Indebtedness has been paid in
full and there has expired the maximum possible period
thereafter during which any payment made by Borrower to Lender
with respect to the Indebtedness could be deemed a preference
under the United States Bankruptcy Code.
11. Preference. If any payment by Borrower is held to constitute a
preference under any applicable bankruptcy, insolvency, or
similar laws, or if for any other reason Lender is required to
refund any sums to Borrower, such refund shall not constitute
a release of any liability of Guarantor under this Guaranty.
It is the intention of Lender and Guarantor that Guarantor's
obligations under this Guaranty shall not be discharged except
by Guarantor's performance of such obligations and then only
to the extent of such performance.
12. Financial Statements. Guarantor, from time to time upon
written request by Lender, shall deliver to Lender such
financial statements as Lender may reasonably require.
13. Assignment. Lender may assign its rights under this Guaranty
in whole or in part and upon any such assignment, all the
terms and provisions of this Guaranty 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 in this Guaranty to "person" or "persons" shall be
deemed to include individuals and entities.
14. Complete and Final Agreement. This Guaranty 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 Guaranty
and the other Loan Documents. Guarantor acknowledges that
Guarantor has received a copy of the Note and all other Loan
Documents. Neither this Guaranty nor any of its provisions may
be waived, modified, amended, discharged, or terminated except
by a 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.
15. Governing Law. This Guaranty shall be governed by the law of
the Property Jurisdiction.
16. Jurisdiction; Venue. Guarantor agrees that any controversy
arising under or in relation to this Guaranty may be litigated
in the Property Jurisdiction, and that the state and federal
courts and authorities with jurisdiction in the Property
Jurisdiction shall have jurisdiction over all controversies
which shall arise under or in relation to this Guaranty.
Guarantor 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. However, nothing
herein is intended to limit Lender's right to bring any suit,
action or proceeding relating to matters arising under this
Guaranty against Guarantor or any of Guarantor's assets in any
court of any other jurisdiction.
17. Guarantor's Interest in Borrower. Guarantor represents to
Lender that Guarantor has a direct or indirect ownership or
other financial interest in Borrower and will derive a direct
material financial benefit from the making of the Loan.
18. GUARANTOR AND LENDER EACH (A) AGREES NOT TO ELECT A TRIAL BY
JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS GUARANTY OR
THE RELATIONSHIP BETWEEN THE PARTIES AS GUARANTOR AND LENDER
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 Guaranty:
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X Exhibit A Modifications to Guaranty
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IN WITNESS WHEREOF, Guarantor has signed and delivered this Guaranty under seal
or has caused this Guaranty to be signed and delivered under seal by its duly
authorized representative. Guarantor intends that this Guaranty shall be deemed
to be signed and delivered as a sealed instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
GUARANTOR:
FIRST SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
SECOND SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
THIRD SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
FOURTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
FIFTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
SIXTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
SEVENTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
EIGHTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
NINTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
SPRINGHILL COMMERCIAL LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
SPRINGFIELD FACILITIES, LLC, a Maryland
limited liability company (successor
by merger to Springfield Facilities,
Inc., a Maryland corporation)
By: Springhill Commercial Limited
Partnership, a Maryland limited
partnership, its sole member
By: Springhill Lake Investors
Limited Partnership, a Maryland
limited partnership, its sole
general partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a
Delaware limited liability
company, its general partner
By: AIMCO Properties, L.P.,
a Delaware limited
partnership, its sole
member
By: AIMCO-GP, Inc., a
Delaware
corporation, its
sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
Exhibit 10(s)
Freddie Mac Loan No. 002708388
Springhill Lake Apartments
REPAIR ESCROW AGREEMENT
(REVISION DATE 01-31-2003)
This REPAIR ESCROW AGREEMENT ("Agreement") is made and entered into, to be
effective as of July 22, 2004, by and among SPRINGHILL LAKE INVESTORS LIMITED
PARTNERSHIP, a Maryland limited partnership ("Maker"), and FIRST SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, SECOND SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, THIRD SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, FOURTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, FIFTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, SIXTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, SEVENTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, EIGHTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, NINTH SPRINGHILL LAKE
LIMITED PARTNERSHIP, a Maryland limited partnership, SPRINGHILL COMMERCIAL
LIMITED PARTNERSHIP, a Maryland limited partnership and SPRINGFIELD FACILITIES,
LLC, a Maryland limited liability company, successor by merger to Springfield
Facilities, Inc., a Maryland corporation (collectively, "Grantor"), and GMAC
COMMERCIAL MORTGAGE CORPORATION, a California corporation ("Lender") and its
successors and assigns.
W I T N E S S E T H:
WHEREAS, at Maker's and Grantor's request, Lender has agreed to make and Maker
has agreed to accept that certain loan in the amount of $113,500,000.00 (the
"Loan") which is evidenced by the Amended and Restated Multifamily Note executed
by Maker (the "Note"), the payment and performance of which is guaranteed by the
Amended and Restated Guaranty of Grantor (the "Guaranty"). The obligations of
Grantor are secured by the Amended and Restated Multifamily Indemnity Deed of
Trust, Assignment of Rents and Security Agreement and Confirmation of Trustee,
effective as of the date of the Note and Guaranty, executed by Grantor for the
benefit of Lender, encumbering the Land, Improvements and other Mortgaged
Property (the "Security Instrument"). The Land is described on Exhibit "A"
attached to this Agreement; and
WHEREAS, Maker and Grantor are referred to herein jointly and severally as
"Borrower"; and
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" [SEE EXHIBIT B].
(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 ninety (90) 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 Springhill Lake Apartments.
(d) "Loan" means the loan from Lender in the original principal amount
of One Hundred Thirteen Million Five Hundred Thousand and 00/100
Dollars ($113,500,000.00), as evidenced by the Note, guaranteed by
the Guaranty, and secured by the Security Instrument.
(e) "Minimum Disbursement Request Amount" means Two Thousand Five
Hundred and 00/100 Dollars ($2,500.00).
(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 Six Hundred Seventy Four
Thousand Nine Hundred Thirty Eight and 00/100 Dollars ($674,938.00)
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 Amended and Restated Multifamily
Indemnity Deed of Trust, Assignment of Rents and Security Agreement
and Confirmation of Trustee from Grantor for the benefit of Lender
encumbering the Property described above.
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 Fifty and 00/100 Dollars ($50.00) 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.
MAKER:
WITNESS:
SPRINGHILL LAKE INVESTORS LIMITED
PARTNERSHIP, a Maryland limited
partnership
__________________
Print Name: _________ By: AIMCO/Springhill Lake Investors GP,
LLC, a Delaware limited liability
company, its sole general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a Delaware
corporation, its sole general
partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2848939
Maker's Social Security/Employer ID Number
WITNESS:
GRANTOR:
__________________
Print Name: _____________ FIRST SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852803
Grantor's Social Security/Employer ID Number
WITNESS:
SECOND SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
___________________
Print Name: ___________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852804
Grantor's Social Security/Employer ID Number
WITNESS:
THIRD SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
________________________
Print Name: ____________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852818
Grantor's Social Security/Employer ID Number
WITNESS:
FOURTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
_______________________
Print Name: __________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852819
Grantor's Social Security/Employer ID Number
WITNESS:
FIFTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
________________________
Print Name: ______________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852820
Grantor's Social Security/Employer ID Number
WITNESS:
SIXTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
____________________
Print Name: ______________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852821
Grantor's Social Security/Employer ID Number
WITNESS:
SEVENTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
_________________________
Print Name: ___________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852823
Grantor's Social Security/Employer ID Number
WITNESS:
EIGHTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
____________________________
Print Name: ____________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852825
Grantor's Social Security/Employer ID Number
WITNESS:
NINTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
_______________________
Print Name: _______________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852827
Grantor's Social Security/Employer ID Number
WITNESS:
SPRINGHILL COMMERCIAL LIMITED
PARTNERSHIP, a Maryland limited
partnership
______________________
Print Name: ____________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2926871
Grantor's Social Security/Employer ID Number
WITNESS:
SPRINGFIELD FACILITIES, LLC, a Maryland
limited liability company (successor
by merger to Springfield Facilities,
Inc., a Maryland corporation)
__________________________
Print Name: ____________ By: Springhill Commercial Limited
Partnership, a Maryland limited
partnership, its sole member
By: Springhill Lake Investors
Limited Partnership, a Maryland
limited partnership, its sole
general partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a
Delaware limited liability
company, its sole general
partner
By: AIMCO Properties, L.P.,
a Delaware limited
partnership, its sole
member
By: AIMCO-GP, Inc., a
Delaware
corporation, its
sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2926871
Grantor's Social Security/Employer ID Number
LENDER:
WITNESS:
GMAC COMMERCIAL MORTGAGE CORPORATION, a
California corporation
__________________
Print Name: _______________
By: /s/Max W. Foore (SEAL)
Max W. Foore
Vice President
Exhibit 10(t)
Freddie Mac Loan No. 002708388
Springhill Lake Apartments
REPLACEMENT RESERVE AGREEMENT
MARYLAND IDOT
(REVISION DATE 4-7-2003)
This REPLACEMENT RESERVE AGREEMENT ("Agreement") is made and entered into,
to be effective as of July 22, 2004, by and among SPRINGHILL LAKE INVESTORS
LIMITED PARTNERSHIP, a Maryland limited partnership ("Maker"), and FIRST
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, SECOND
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, THIRD
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, FOURTH
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, FIFTH
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, SIXTH
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, SEVENTH
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, EIGHTH
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, NINTH
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, SPRINGHILL
COMMERCIAL LIMITED PARTNERSHIP, a Maryland limited partnership and SPRINGFIELD
FACILITIES, LLC, a Maryland limited liability company, successor by merger to
Springfield Facilities, Inc., a Maryland corporation (collectively, "Grantor")
and GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation ("Lender")
and its successors and assigns.
W I T N E S S E T H:
WHEREAS, at Maker's and Grantor's request, Lender has agreed to make and
Maker has agreed to accept that certain loan in the amount of $113,500,000.00
(the "Loan") which is evidenced by the Amended and Restated Multifamily Note
executed by Maker (the "Note"), the payment and performance of which is
guaranteed by the Amended and Restated Guaranty of Grantor (the "Guaranty"). The
obligations of Grantor are secured by the Amended and Restated Multifamily
Indemnity Deed of Trust, Assignment of Rents and Security Agreement and
Confirmation of Trustee, effective as of the date of the Note and Guaranty,
executed by Grantor for the benefit of Lender, encumbering the Land,
Improvements and other Mortgaged Property (the "Security Instrument"). The Land
is described on Exhibit "A" attached to this Agreement; and
WHEREAS, Maker and Grantor are referred to herein jointly and severally as
"Borrower"; 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 Springhill Lake Apartments.
(d) "Initial Deposit" means the amount of Zero Dollars ($0.00) 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 Three Hundred and 00/100
Dollars ($300.00) per inspection.
(f) Investment Fee means a one time fee for establishing the Replacement
Reserve Fund in the amount of Fifty and 00/100 Dollars ($50.00).
(g) "Loan" means the loan from Lender in the original principal amount
of One Hundred Thirteen Million Five Hundred Thousand and 00/100
Dollars ($113,500,000.00), as evidenced by the Note, guaranteed by
the Guaranty, and secured by the Security Instrument.
(h) "Minimum Disbursement Request Amount" means Two Thousand Five
Hundred and 00/100 Dollars ($2,500.00).
(i) "Monthly Deposit" means the amount of Ninety Six Thousand Eight
Hundred Seventy Four and 92/100 Dollars ($96,874.92) 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 84 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 Amended and Restated Multifamily
Indemnity Deed of Trust, Assignment of Rents and Security Agreement
and Confirmation of Trustee, from Grantor for the benefit of Lender
encumbering the Property described above.
(p) "Subsequent Review Period" means the period of N/A 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 Fund.
(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 required). 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, claims, 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.
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.
MAKER:
WITNESS:
SPRINGHILL LAKE INVESTORS LIMITED
PARTNERSHIP, a Maryland limited
partnership
_________________________
Print Name: ____________ By: AIMCO/Springhill Lake Investors GP,
LLC, a Delaware limited liability
company, its sole general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc. a Delaware
corporation, its sole
general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2848939
Maker's Social Security/Employer ID Number
GRANTOR:
WITNESS:
FIRST SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
_____________________
Print Name: __________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852803
Grantor's Social Security/Employer ID Number
WITNESS:
SECOND SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
_____________________
Print Name: _________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852804
Grantor's Social Security/Employer ID Number
WITNESS:
THIRD SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
_______________________
Print Name: ___________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852818
Grantor's Social Security/Employer ID Number
WITNESS:
FOURTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
___________________
Print Name: ___________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852819
Grantor's Social Security/Employer ID Number
WITNESS:
FIFTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
______________________
Print Name: ___________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852820
Grantor's Social Security/Employer ID Number
WITNESS:
SIXTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
______________________
Print Name: ____________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852821
Grantor's Social Security/Employer ID Number
WITNESS:
SEVENTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
_________________________
Print Name: ___________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852823
Grantor's Social Security/Employer ID Number
WITNESS:
EIGHTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
______________________
Print Name: ____________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852825
Grantor's Social Security/Employer ID Number
WITNESS:
NINTH SPRINGHILL LAKE LIMITED
PARTNERSHIP, a Maryland limited
partnership
________________________
Print Name: _____________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2852827
Grantor's Social Security/Employer ID Number
WITNESS:
SPRINGHILL COMMERCIAL LIMITED
PARTNERSHIP, a Maryland limited
partnership
______________________
Print Name: ____________ By: Springhill Lake Investors Limited
Partnership, a Maryland limited
partnership, its sole general
partner
By: AIMCO/Springhill Lake Investors
GP, LLC, a Delaware limited
liability company, its sole
general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a
Delaware corporation,
its sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2926871
Grantor's Social Security/Employer ID Number
WITNESS:
SPRINGFIELD FACILITIES, LLC, a Maryland
limited liability company (successor
by merger to Springfield Facilities,
Inc., a Maryland corporation)
__________________________
Print Name: ____________ By: Springhill Commercial Limited
Partnership, a Maryland limited
partnership, its sole member
By: Springhill Lake Investors
Limited Partnership, a Maryland
limited partnership, its sole
general partner
By: AIMCO/Springhill Lake
Investors GP, LLC, a
Delaware limited liability
company, its sole general
partner
By: AIMCO Properties, L.P.,
a Delaware limited
partnership, its sole
member
By: AIMCO-GP, Inc., a
Delaware
corporation, its
sole general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2926871
Grantor's Social Security/Employer ID Number
WITNESS:
LENDER:
GMAC COMMERCIAL MORTGAGE CORPORATION, a
California corporation
_________________________
Print Name: _____________
By: /s/Max W. Foore (SEAL)
Max W. Foore
Vice President
Exhibit 10(u)
FHLMC Loan No. 002708388
Springhill Lake Apartments
MARYLAND AMENDED AND RESTATED
MULTIFAMILY NOTE
REVISION DATE 7-01-2004
(REVISED FOR AMENDED/RESTATED MARYLAND IDOT)
THIS AMENDED AND RESTATED MULTIFAMILY NOTE is made and entered into as of
the 22nd day of July, 2004, from SPRINGHILL LAKE INVESTORS LIMITED PARTNERSHIP a
Maryland limited partnership ("Borrower") to GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation ("Lender").
PRELIMINARY STATEMENTS
A. A loan was made to Borrower in the original principal amount of One Hundred
Thirteen Million One Hundred Thousand and 00/100 Dollars ($113,100,000.00), the
repayment of which is evidenced by a Consolidated, Amended and Restated
Multifamily Note dated as of November 1, 2002 (the "Original Note") from
Borrower, as maker, to Lender, as payee.
B. Borrower's obligations under the Original Note are guaranteed by a
Consolidated, Amended and Restated Payment Guaranty dated as of November 1, 2002
from FIRST SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership,
SECOND SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership,
THIRD SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership,
FOURTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership,
FIFTH SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, SIXTH
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, SEVENTH
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, EIGHTH
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, NINTH
SPRINGHILL LAKE LIMITED PARTNERSHIP, a Maryland limited partnership, SPRINGHILL
COMMERCIAL LIMITED PARTNERSHIP, a Maryland limited partnership and SPRINGFIELD
FACILITIES, LLC, a Maryland limited liability company, successor by merger to
Springfield Facilities, Inc., a Maryland corporation (collectively, the
"Grantor") to GMACCM (the "Original Guaranty")
C. The Original Guaranty is secured by a Consolidated, Amended and Restated
Indemnity Multifamily Deed of Trust, Assignment of Rents and Security Agreement
dated as of November 1, 2002, and recorded among the Land Records of Prince
George's County, Maryland in Liber 16493, Folio 339 (the "Original Security
Instrument"), on certain improved real property located in Prince George's
County, Maryland.
D. Lender is the holder of the Original Note and the Original Guaranty.
E. Borrower has confirmed to Lender that Borrower has no defenses to or offsets
of any kind against any of the indebtedness due under the Original Note.
F. Grantor has confirmed to Lender that Grantor has no defenses to or offsets of
any kind against any of its obligations under the Original Guaranty.
G. Borrower has requested and Lender has agreed to make certain amendments to
the Original Note, including changing the interest rate and the terms of
payment. The Original Note is hereby being amended and restated in its entirety
to reflect such amendments.
H. The Original Security Instrument is concurrently being amended and restated
pursuant to the terms of that certain Amended and Restated Multifamily Indemnity
Deed of Trust, Assignment of Rents and Security Agreement and Confirmation of
Trustee of even date herewith (the "Security Instrument").
I. The Original Guaranty is concurrently being amended and restated pursuant to
the terms of that certain Amended and Restated Guaranty of even date herewith.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender agree that the Original Note is hereby amended
and restated in its entirety as follows (as amended and restated, this "Note"):
Freddie Mac Loan No. 002708388
Springhill Lake Apartments
MULTIFAMILY NOTE
MARYLAND IDOT - ADJUSTABLE RATE
(REVISION DATE 7-01-2004)
US $113,500,000.00 Effective Date: As of July 22, 2004
FOR VALUE RECEIVED, the undersigned (together with such party's or
parties' successors and assigns, "Borrower"), jointly and severally (if more
than one) promises to pay to the order of GMAC COMMERCIAL MORTGAGE BANK, a Utah
industrial bank, the principal sum of One Hundred Thirteen Million Five Hundred
Thousand Dollars (US $113,500,000.00), with interest on the unpaid principal
balance, as hereinafter provided.
1. Defined Terms.
(a) As used in this Note:
"Adjustable Interest Rate" means the variable annual interest rate
calculated for each Interest Adjustment Period so as to equal the
Index Rate for such Interest Adjustment Period (truncated at the
fifth (5th) decimal place if necessary) plus the Margin. However, in
no event will the Adjustable Interest Rate exceed the Capped
Interest Rate.
"Amortization Period" means a period of 0 full consecutive calendar
months.
"Base Recourse" means a portion of the Indebtedness equal to zero
percent (0%) of the original principal balance of this Note.
"Business Day" means any day other than a Saturday, a Sunday or any
other day on which Lender is not open for business.
"Capped Interest Rate" is not applicable, there is no Capped
Interest Rate for the Loan.
"Default Rate" means a variable annual interest rate equal to four
(4) percentage points above the Adjustable Interest Rate in effect
from time to time. However, at no time will the Default Rate exceed
the Maximum Interest Rate.
"Grantor" means the party or parties (jointly and severally if more
than one party) who has or have (i) guaranteed payment of the entire
Indebtedness and performance of all of Borrower's obligations under
the Loan Documents pursuant to that certain 100% Property Owner
Guaranty dated the date of this Note (the "Grantor's Guaranty" or
"Guaranty"), and (ii) executed and delivered the Security Instrument
to secure the payment and performance by Grantor under the Grantor's
Guaranty.
"Index Rate" means, for any Interest Adjustment Period, the
Reference Bill Index Rate for such Interest Adjustment Period.
"Installment Due Date" means, for any monthly installment of
interest only or principal and interest, the date on which such
monthly installment is due and payable pursuant to Section 3 of this
Note. The "First Installment Due Date" under this Note is September
1, 2004.
"Interest Adjustment Period" means each successive one (1) calendar
month period until the entire Indebtedness is paid in full, except
that the first Interest Adjustment Period is the period from the
date of this Note through July 31, 2004. Therefore, the second
Interest Adjustment Period shall be the period from August 1, 2004
through August 31, 2004, and so on until the entire Indebtedness is
paid in full.
"Lender" means the holder from time to time of this Note.
"LIBOR Index" means the British Bankers Association's (BBA) one (1)
month LIBOR Rate for United States Dollar deposits, as displayed on
the LIBOR Index Page used to establish the LIBOR Index Rate.
"LIBOR Index Rate" means, for any Interest Adjustment Period after
the first Interest Adjustment Period, the BBA's LIBOR Rate for the
LIBOR Index released by the BBA most recently preceding the first
day of such Interest Adjustment Period, as such LIBOR Rate is
displayed on the LIBOR Index Page. The LIBOR Index Rate for the
first Interest Adjustment Period means the British Bankers
Association's (BBA) LIBOR Rate for the LIBOR Index released by the
BBA most recently preceding the first day of the month in which the
first Interest Adjustment Period begins, as such LIBOR Rate is
displayed on the LIBOR Index Page. "LIBOR Index Page" is the
Bloomberg L.P., page "BBAM", or such other page for the LIBOR Index
as may replace page BBAM on that service, or at the option of Lender
(i) the applicable page for the LIBOR Index on another service which
electronically transmits or displays BBA LIBOR Rates, or (ii) any
publication of LIBOR rates available from the BBA. In the event the
BBA ceases to set or publish a LIBOR rate/interest settlement rate
for the LIBOR Index, Lender will designate an alternative index, and
such alternative index shall constitute the LIBOR Index Rate.
"Loan" means the loan evidenced by this Note.
"Lockout Period" means the period from the date of this Note through
the day preceding the sixth (6th) Installment Due Date under this
Note.
"Margin" means sixty three one hundredths (.63) percentage points
(63 basis points).
"Maturity Date" means the earlier of (i) August 1, 2011 (the
"Scheduled Maturity Date"), and (ii) the date on which the unpaid
principal balance of this Note becomes due and payable by
acceleration or otherwise pursuant to the Loan Documents or the
exercise by Lender of any right or remedy under any Loan Document.
"Maximum Interest Rate" means the rate of interest that results in
the maximum amount of interest allowed by applicable law.
"Pledge" means the Ownership Interest Pledge dated the date of this
Note and securing the payment and performance of Borrower's and
Grantor's obligations under the Loan Documents, from the party or
parties owning 100% of the ownership interests in Grantor (jointly
and severally if more than one, "Pledgor").
"Reference Bills(R)" means the unsecured general obligations of the
Federal Home Loan Mortgage Corporation ("Freddie Mac") designated by
Freddie Mac as "Reference Bills(R)" and having original durations to
maturity most comparable to the term of the Reference Bill Index,
and issued by Freddie Mac at regularly scheduled auctions. In the
event Freddie Mac shall at any time cease to designate any unsecured
general obligations of Freddie Mac as "Reference Bills", then at the
option of Lender (i) Lender may select from time to time another
unsecured general obligation of Freddie Mac having original
durations to maturity most comparable to the term of the Reference
Bill Index and issued by Freddie Mac at regularly scheduled
auctions, and the term "Reference Bills" as used in this Note shall
mean such other unsecured general obligations as selected by Lender;
or (ii) for any one or more Interest Adjustment Periods, Lender may
use the applicable LIBOR Index Rate as the Index Rate for such
Interest Adjustment Period(s).
"Reference Bill Index" means the one (1) month Reference Bills.
One-month reference bills have original durations to maturity of
approximately 30 days.
"Reference Bill Index Rate" means, for any Interest Adjustment
Period after the first Interest Adjustment Period, the Money Market
Yield for the Reference Bills as established by the Reference Bill
auction conducted by Freddie Mac most recently preceding the first
day of such Interest Adjustment Period, as displayed on the
Reference Bill Index Page. The Reference Bill Index Rate for the
first Interest Adjustment Period means the Money Market Yield for
the Reference Bills as established by the Reference Bill auction
conducted by Freddie Mac most recently preceding the first day of
the month in which the first Interest Adjustment Period begins, as
displayed on the Reference Bill Index Page. The "Reference Bill
Index Page" is the Freddie Mac Debt Securities Web Page (accessed
via the Freddie Mac internet site at www.freddiemac.com), or at the
option of Lender, any publication of Reference Bills auction results
available from Freddie Mac. However, if Freddie Mac has not
conducted a Reference Bill auction within the 60-calendar day period
prior to the first day of an Interest Adjustment Period, the
Reference Bill Index Rate for such Interest Adjustment Period will
be the LIBOR Index Rate for such Interest Adjustment Period.
"Remaining Amortization Period" means, at any point in time, the
number of consecutive calendar months equal to the number of months
in the Amortization Period minus the number of scheduled monthly
installments of principal and interest that have elapsed since the
date of this Note.
"Security Instrument" means the multifamily mortgage, deed to secure
debt or deed of trust effective as of the effective date of this
Note, from Grantor to or for the benefit of Lender and securing the
Grantor's Guaranty.
"Window Period" means the seventy eight (78) consecutive calendar
month period prior to the Scheduled Maturity Date.
"Yield Maintenance Period" means the period from and including the
day following the expiration of the Lockout Period (or if there is
no Lockout Period, from and including the date of this Note) until
but not including N/A.
(b) 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 c/o GMAC Commercial Mortgage Corporation, 200 Witmer Road, P.O. Box 809,
Horsham, Pennsylvania, Attention: Servicing - Account Manager, or such other
place as may be designated by Notice to Borrower from or on behalf of Lender.
3. Payments.
(a) Interest will accrue on the outstanding principal balance of this Note
at the Adjustable Interest Rate, subject to the provisions of Section 8 of this
Note.
(b) Interest under this Note shall be computed, payable and allocated on
the basis of an actual/360 interest calculation schedule (interest is payable
for the actual number of days in each month, and each month's interest is
calculated by multiplying the unpaid principal amount of this Note as of the
first day of the month for which interest in being calculated by the applicable
Adjustable Interest Rate, dividing the product by 360, and multiplying the
quotient by the number of days in the month for which interest is being
calculated). For convenience in determining the amount of a monthly installment
of principal and interest under this Note, Lender will use a 30/360 interest
calculation payment schedule (each year is treated as consisting of twelve
30-day months). However, as provided above, the portion of the monthly
installment actually payable as and allocated to interest will be based upon an
actual/360 interest calculation schedule, and the amount of each installment
attributable to principal and the amount attributable to interest will vary
based upon the number of days in the month for which such installment is paid.
Each monthly payment of principal and interest will first be applied to pay in
full interest due, and the balance of the monthly payment paid by Borrower will
be credited to principal.
(c) Unless disbursement of principal is made by Lender to Borrower on the
first day of a calendar month, interest for the period beginning on the date of
disbursement and ending on and including the last day of such calendar month
shall be payable by Borrower simultaneously with the execution of this Note. If
disbursement of principal is made by Lender to Borrower on the first day of a
calendar month, then no payment will be due from Borrower at the time of the
execution of this Note. The Installment Due Date for the first monthly
installment payment under Section 3(d) of interest only or principal and
interest, as applicable, will be the First Installment Due Date set forth in
Section 1(a) of this Note. Except as provided in this Section 3(c) and in
Section 10, accrued interest will be payable in arrears.
(d) Beginning on the First Installment Due Date, and continuing until and
including the monthly installment due on the Maturity Date, accrued interest
only shall be payable by Borrower in consecutive monthly installments due and
payable on the first day of each calendar month. The amount of the monthly
installment of interest only payable pursuant to this Section 3(d) on an
Installment Due Date shall equal the product of (i) annual interest on the
unpaid principal balance of this Note as of the first day of the Interest
Adjustment Period immediately preceding the Installment Due Date at the
Adjustable Interest Rate in effect for such Interest Adjustment Period, divided
by 360, multiplied by (ii) the number of days in such Interest Adjustment
Period.
(e) All remaining Indebtedness, including all principal and interest,
shall be due and payable by Borrower on the Maturity Date.
(f) Lender shall provide Borrower with notice, given in the manner
specified in the Security Instrument, of the amount of each monthly installment
due under this Note. However, if Lender has not provided Borrower with prior
notice of the monthly payment due on any Installment Due Date, then Borrower
shall pay on that Installment Due Date an amount equal to the monthly
installment payment for which Borrower last received notice. If Lender at any
time determines that Borrower has paid one or more monthly installments in an
incorrect amount because of the operation of the preceding sentence, or because
Lender has miscalculated the Adjustable Interest Rate or has otherwise
miscalculated the amount of any monthly installment, then Lender shall give
notice to Borrower of such determination. If such determination discloses that
Borrower has paid less than the full amount due for the period for which the
determination was made, Borrower, within 30 calendar days after receipt of the
notice from Lender, shall pay to Lender the full amount of the deficiency. If
such determination discloses that Borrower has paid more than the full amount
due for the period for which the determination was made, then the amount of the
overpayment shall be credited to the next installment(s) of interest only or
principal and interest, as applicable, due under this Note (or, if an Event of
Default has occurred and is continuing, such overpayment shall be credited
against any amount owing by Borrower to Lender).
(g) All payments under this Note shall be made in immediately available
U.S. funds.
(h) Any regularly scheduled monthly installment of interest only or
principal and interest payable pursuant to this Section 3 that is received by
Lender before the date it is due shall be deemed to have been received on the
due date for the purpose of calculating interest due.
(i) Any accrued interest remaining past due for 30 days or more, at
Lender's discretion, may be added to and become part of the unpaid principal
balance of this Note and any reference to "accrued interest" shall refer to
accrued interest which has not become part of the unpaid principal balance. Any
amount added to principal pursuant to the Loan Documents shall bear interest at
the applicable rate or rates specified in this Note and shall be payable with
such interest upon demand by Lender and absent such demand, as provided in this
Note for the payment of principal and interest.
(j) In accordance with Section 14, interest charged under this Note cannot
exceed the Maximum Interest Rate. If the Adjustable Interest Rate at any time
exceeds the Maximum Interest Rate, resulting in the charging of interest
hereunder to be limited to the Maximum Interest Rate, then any subsequent
reduction in the Adjustable Interest Rate shall not reduce the rate at which
interest under this Note accrues below the Maximum Interest Rate until the total
amount of interest accrued hereunder equals the amount of interest which would
have accrued had the Adjustable Interest Rate at all times been in effect.
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 the amount received 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. Guaranty and Security. The obligations of Borrower under this Note and
the other Loan Documents are guaranteed by, among others, Grantor pursuant to
the terms and provisions of the Grantor's Guaranty. The Security Instrument
secures, among other things, the obligations of Grantor under the Grantor's
Guaranty and other Loan Documents to which Grantor is a party. The Pledge
secures, among other things, the obligations of Borrower and Grantor under the
Loan Documents. The Security Instrument constitutes a first lien on and security
interest in the Mortgaged Property, as more particularly described in the
Security Instrument. The Pledge constitutes a first lien pledge of and security
interest in the "Collateral" described in the Pledge. Borrower hereby
acknowledges its receipt of the fully executed copy of the Grantor's Guaranty,
the Security Instrument, and the Pledge. By its execution and delivery of this
Note, Borrower agrees (i) to cause Grantor to fully and timely perform and
comply with all of Grantor's obligations under the Security Instrument and other
Loan Documents to which Grantor is a party, (ii) to cause Pledgor to fully and
timely perform and comply with all of Pledgor's obligations under the Pledge,
and (iii) to perform and comply with all of the obligations of Grantor and to be
bound by the covenants of Grantor under the Security Instrument as if Borrower
was named as the grantor in the Security Instrument. Without limiting the
foregoing, to the extent the provisions of Section 42 of the Security Instrument
are applicable, Borrower hereby joins in the pledge and assignment of the Cap
Collateral. All of the terms of the Security Instrument are incorporated into
this Note by this reference.
6. Acceleration. If an Event of Default has occurred and is continuing,
the entire unpaid principal balance, any accrued interest, any prepayment
premium payable under Section 10, 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. For purposes of exercising such
option, Lender shall calculate the prepayment premium as if prepayment occurred
on the date of acceleration. If prepayment occurs thereafter, lender shall
recalculate the prepayment premium as of the actual prepayment date.
7. Late Charge.
(a) If any monthly installment of interest or principal and interest or
other amount payable under this Note or under the Security Instrument or any
other Loan Document is not received in full by Lender within five (5) days after
the installment or other amount is due, counting from and including the date
such installment or other 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
installment or other amount due (unless applicable law requires a lesser amount
be charged, in which event such lesser amount shall be substituted).
(b) Borrower acknowledges that its failure to make timely payments will
cause Lender to incur additional expenses in servicing and processing 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 Section
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 Section 8.
8. Default Rate.
(a) So long as (i) any monthly installment under this Note remains past
due for thirty (30) days or more or (ii) any other Event of Default has occurred
and is continuing, then notwithstanding anything in Section 3 of this Note to
the contrary, interest under this Note shall accrue on the unpaid principal
balance from the Installment Due Date of the first such unpaid monthly
installment or the occurrence of such other Event of Default, as applicable, at
the Default Rate.
(b) From and after the Maturity Date, the unpaid principal balance shall
continue to bear interest at the Default Rate until and including the date on
which the entire principal balance is paid in full.
(c) Borrower acknowledges that (i) its failure to make timely payments
will cause Lender to incur additional expenses in servicing and processing the
Loan, (ii) during the time that any monthly installment under this Note is
delinquent for thirty (30) days or more, 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 (iii) 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 thirty (30) days or more 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 Section 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 to 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 Grantor or any other guarantor
of the Indebtedness or any guarantor of any other obligations of Borrower.
(b) Borrower shall be personally liable to Lender for the amount of the
Base Recourse, plus any other amounts for which Borrower has personal liability
under this Section 9.
(c) In addition to the Base Recourse, 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 the occurrence of any of
the following events:
(i) Borrower or Grantor fails 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
or Grantor from tenants then in residence. However,
Borrower will not be personally liable for any failure
described in this subsection (i) if Grantor is unable to
pay to Lender all Rents and security deposits as required
by the Security Instrument because of a valid order issued
in a bankruptcy, receivership, or similar judicial
proceeding.
(ii) Borrower or Grantor fails to apply all insurance proceeds and
condemnation proceeds as required by the Security Instrument.
However, Borrower will not be personally liable for any
failure described in this subsection (ii) if Grantor is unable
to apply insurance or condemnation proceeds as required by the
Security Instrument because of a valid order issued in a
bankruptcy, receivership, or similar judicial proceeding.
(iii) Borrower or Grantor fails to comply with Section 14(g) or (h)
of the Security Instrument relating to the delivery of books
and records, statements, schedules and reports.
(iv) Borrower of Grantor fails to pay when due in accordance with
the terms of the Security Instrument the amount of any item
below marked "Deferred"; provided however, that if no item is
marked "Deferred", this Section 9(c)(iv) shall be of no force
or effect.
[Deferred] Hazard Insurance premiums or other insurance
premiums,
[Deferred] Taxes,
[Deferred] water and sewer charges (that could become a lien
on the Mortgaged Property),
[__N/A__] ground rents,
[Deferred] assessments or other charges (that could become a
lien on the Mortgaged Property)
(d) In addition to the Base Recourse, Borrower shall be personally liable
to Lender for:
(i) the performance of all of Borrower's and Grantor's obligations
under Section 18 of the Security Instrument (relating to
environmental matters);
(ii) the costs of any audit under Section 14(g) of the Security
Instrument;
(iii) the amount of all recordation, transfer, documentary, or
similar taxes, if any, that may be due because of the making
of the Loan evidenced by this Note, the execution, delivery or
recordation of the Security Instrument, the execution or
delivery of the Grantor's Guaranty or any other guaranty, the
occurrence of any Event of Default under the Security
Instrument, or otherwise arising out of the loan transaction
to which the Loan Documents pertain, plus all interest,
penalties and fines that may be or may become due; and
(iv) any costs and expenses incurred by Lender in connection with
the collection of any amount for which Borrower is personally
liable under this Section 9, including Attorneys' Fees and
Costs and the costs of conducting any independent audit of
Borrower's or Grantor's books and records to determine the
amount for which Borrower has personal liability.
(e) All payments made by Borrower or Grantor with respect to the
Indebtedness and all amounts received by Lender from the enforcement of its
rights under the Security Instrument and the other Loan Documents shall be
applied first to the portion of the Indebtedness for which Borrower has no
personal liability.
(f) Notwithstanding the Base Recourse, 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:
(i) Borrower's or Grantor's ownership of any property or operation
of any business not permitted by Section 33 of the Security
Instrument;
(ii) 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
(iii) fraud or written material misrepresentation by Borrower or
Grantor or Pledgor or any officer, director, partner, member
or employee of Borrower or Grantor or Pledgor in connection
with the application for or creation of the Indebtedness or
any request for any action or consent by Lender.
(g) To the extent that Borrower has personal liability under this Section
9, Lender may exercise its rights against Borrower personally without regard to
whether Lender has exercised any rights against the Mortgaged Property, the
Collateral 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. To the fullest extent
permitted by applicable law, in any action to enforce Borrower's personal
liability under this Section 9, Borrower waives any right to set off the value
of the Mortgaged Property against such personal liability.
10. Voluntary and Involuntary Prepayments.
(a) Any receipt by Lender of principal due under this Note prior to the
Scheduled Maturity Date, other than principal required to be paid in monthly
installments pursuant to Section 3, constitutes a prepayment of principal under
this Note. Without limiting the foregoing, any application by Lender, prior to
the Scheduled Maturity Date, of any proceeds of collateral or other security to
the repayment of any portion of the unpaid principal balance of this Note
constitutes a prepayment under this Note.
(b) Borrower may not voluntarily prepay any portion of the principal
balance of this Note during the Lockout Period, if a Lockout Period is
applicable to this Note. However, if any portion of the principal balance of
this Note is prepaid during the Lockout Period by reason of the application by
Lender of any proceeds of collateral or other security to any portion of the
unpaid principal balance of this Note or following a determination that the
prohibition on voluntary prepayments during the Lockout Period is in
contravention of applicable law, then Borrower must also pay to Lender upon
demand by Lender, a prepayment premium equal to five percent (5.0%) of the
amount of principal being prepaid.
(c) Following the end of the Lockout Period, 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 Notice from Borrower to Lender
given at least 30 days prior to the date of such prepayment. Unless otherwise
expressly provided in the Loan Documents, Borrower may not voluntarily prepay
less than all of the unpaid principal balance of this Note.
(d) Borrower acknowledges that Lender has agreed that principal may be
prepaid other than on the last calendar day of a month only because, for the
purposes of 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 the month in which the prepayment occurs.
(e) In order to voluntarily prepay all or any part of the principal of
this Note, Borrower must also pay to Lender, together with the amount of
principal being prepaid, (i) all accrued and unpaid interest due under this
Note, plus (ii) all other sums due to Lender at the time of such prepayment,
plus (ii) any prepayment premium calculated pursuant to Section 10(f).
(f) Reserved.
(g) Notwithstanding any other provision of this Section 10, no prepayment
premium shall be payable with respect to (i) any prepayment made during the
Window Period, or (ii) any prepayment occurring as a result of the application
of any insurance proceeds or condemnation award under the Security Instrument,
or (iii) any prepayment of the entire principal balance of this Note that occurs
on or after the N/A Installment Due Date under this Note with the proceeds of a
fixed interest rate or fixed-to-float interest rate mortgage loan that is the
subject of a binding commitment for purchase between the Freddie Mac and a
Freddie Mac-approved Program Plus(R) Seller/Servicer.
(h) Unless Lender agrees otherwise in writing, a 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.
(i) Borrower recognizes that any prepayment of any of the unpaid principal
balance of this Note, whether voluntary or involuntary or resulting from an
Event of 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. Borrower
further acknowledges that any lockout and the prepayment premium provisions of
this Note are a material part of the consideration for the Loan, and 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 lockout and prepayment premium
provisions.
11. Costs and Expenses. To the fullest extent allowed by applicable law,
Borrower shall pay all expenses and costs, including Attorneys' Fees and Costs
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. Borrower and all endorsers and guarantors of this Note and
all other third party obligors waive 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. Each such party agrees that his, her
or its liability on or with respect to this Note shall not be affected by any
release of or change in the Pledge, the Guaranty or any other guaranty or
security at any time existing, or by any failure to protect or to maintain
perfection of any lien against or security interest in any such security or the
partial or complete enforceability of any guaranty or other security obligation
with or without notice and before or after maturity.
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. 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 this 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
this Note.
15. Commercial Purpose. Borrower represents that Borrower is incurring the
Indebtedness 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 Property
Jurisdiction.
18. Captions. The captions of the Sections of this Note are for
convenience only and shall be disregarded in construing this Note.
19. Notices; Written Modifications.
(a) All Notices, demands and other communications required or permitted to
be given pursuant to this Note shall be given in accordance with Section 31 of
the Security Instrument.
(b) 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, in the event of a Transfer under the terms of the
Security Instrument that requires Lender's consent, any or some or all of the
Modifications to Multifamily Note set forth in Exhibit A to this Note may be
modified or rendered void by Lender at Lender's option, by Notice to Borrower
and the transferee, as a condition of Lender's consent.
20. Consent to Jurisdiction and Venue. Borrower agrees that any
controversy arising under or in relation to this Note may be litigated in the
Property Jurisdiction. The state and federal courts and authorities with
jurisdiction in the Property Jurisdiction shall have jurisdiction over all
controversies that 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. However, nothing in this
Note is intended to limit any right that Lender may have to bring any suit,
action or proceeding relating to matters arising under this Note in any court of
any other jurisdiction.
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 Exhibit noted below, if marked with an "X" in the
space provided, is attached to this Note:
[_X_] Exhibit A Modifications to Multifamily Note
IN WITNESS WHEREOF, and in consideration of the Lender's agreement to lend
Borrower the principal amount set forth above, 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.
WITNESS:
SPRINGHILL LAKE INVESTORS LIMITED
PARTNERSHIP, a Maryland limited
partnership
______________________
Print Name: _________________ By: AIMCO/Springhill Lake Investors GP,
LLC, a Delaware limited liability
company, its sole general partner
By: AIMCO Properties, L.P., a
Delaware limited partnership,
its sole member
By: AIMCO-GP, Inc., a Delaware
corporation, its sole
general partner
By: /s/Patti K. Fielding(SEAL)
Patti K. Fielding
Executive Vice President
04-2848939
Borrower's Social Security/Employer ID Number
WITNESS:
___________________
Print Name: ______________ GMAC COMMERCIAL MORTGAGE BANK, a Utah
industrial bank
By: /s/Max W. Foore (SEAL)
Max W. Foore
Limited Signer
Pay to the order of Federal Home Loan Mortgage Corporation, without recourse.
GMAC COMMERCIAL MORTGAGE BANK, WITNESS:
a Utah industrial bank
____________________
By: /s/Max W. Foore (SEAL)
Max W. Foore
Limited Signer