DOCUMENT COVER PAGE
DOCUMENT TITLE: MULTIFAMILY FIRST MORTGAGE,
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(WARRANTY DEED, MORTGAGE, AFFIDAVIT, ETC.)
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
EXECUTED BY: OTC APARTMENTS LIMITED PARTNERSHIP
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HOUSING FINANCE AUTHORITY OF BROWARD COUNTY, FLORIDA
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BRIEF LEGAL DESCRIPTION: SEE EXHIBIT "A"
(IF APPLICABLE) ------------------------------------------------------
RETURN RECORDED DOCUMENT TO:
STEWART TITLE OF FORT LAUDERDALE, INC
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6610 N. UNIVERSITY DRIVE, SUITE 100
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TAMARAC, FL 33321
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SPACE ABOVE THIS LINE FOR RECORDER'S USE
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THIS INSTRUMENT WAS PREPARED BY:
AND WHEN RECORDED, MAIL TO:
L. Avant
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Stewart National Title Services
1980 Post Oak, Suite 610
Houston, Texas 77056
SN #
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FIRST
MULTIFAMILY/MORTGAGE,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS MORTGAGE (herein "Instrument") is made as of the 1st day of July 1996
between the Mortgagor/Grantor, OTC APARTMENTS LIMITED PARTNERSHIP, a Florida
limited partnership whose address is 1873 South Bellaire Street, 17th Floor,
Denver, Colorado 80222 (herein "Borrower"), and the Mortgagee, HOUSING FINANCE
AUTHORITY OF BROWARD COUNTY, FLORIDA, a public body organized and existing under
the laws of State of Florida, whose address is 110 N.E. Third Street, Suite 300,
Ft. Lauderdale, Florida 33301 (herein "Lender").
WHEREAS, Borrower is indebted to Lender in the principal sum of NINE
MILLION EIGHT HUNDRED SEVENTY THOUSAND AND 00/100 ($9,870,000.00) Dollars, which
indebtedness is evidenced by Borrower's note dated as of even date herewith
(herein "Note"), providing for monthly installments of principal and interest,
with the balance of the indebtedness, if not sooner paid, due and payable on
July 1, 2016.
TO SECURE TO LENDER (a) the repayment of the indebtedness evidenced by the
Note, with interest thereon, and all renewals, extensions and modifications
thereof; (d) the payment of all other sums, with interest thereon, advanced in
accordance herewith to protect the security of this Instrument; and (e) the
performance of the covenants and the agreements of Borrower herein contained,
Borrower does hereby mortgage, grant, convey and assign to Lender the following
described property located in TAMARAC, BROWARD COUNTY, FLORIDA, State of
Florida:
*DELETE BRACKETED MATERIAL IF NOT COMPLETED.
See EXHIBIT "A" attached hereto and incorporated herein.
PURSUANT TO SECTION 159.621 AND/OR SECTION 420.513 FLORIDA STATUTES, NO FLORIDA
DOCUMENTARY STAMP TAXES OR INTANGIBLE TAXES ARE REQUIRED TO BE PAID UPON
RECORDING OF THIS INSTRUMENT.
THIS INSTRUMENT IS AMENDED AND SUPPLEMENTED IN CERTAIN RESPECTS AS SET
FORTH IN THE RIDER TO MULTIFAMILY INSTRUMENT (THE "RIDER") AND SPECIAL RIDER TO
MULTIFAMILY INSTRUMENT (THE "SPECIAL RIDER"), BOTH DATED AS OF THE DATE OF THIS
INSTRUMENT ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE. IN THE
EVENT OF ANY INCONSISTENCY BETWEEN THE PRINTED PORTIONS OF THIS INSTRUMENT AND
THE PROVISIONS OF THE RIDER OR SPECIAL RIDER. THE PROVISIONS OF THE RIDER OR
SPECIAL RIDER, AS APPLICABLE, SHALL GOVERN. IN THE EVENT OF ANY INCONSISTENCY
BETWEEN THE PROVISIONS OF THE RIDER AND THE PROVISIONS OF THE SPECIAL RIDER, THE
PROVISIONS OF THE SPECIAL RIDER SHALL GOVERN.
FORM 4010 (PAGE 1 OF 8 PAGES)
FLORIDA-MULTIFAMILY-1/77-FNMA/FHLMC U FORM INSTRUMENT
FANNIE MAE POOL NO.
TOGETHER with all buildings, improvements, and tenements now or hereafter
erected on the property, and all heretofore or hereafter vacated alleys and
streets abutting the property, and all easements, rights, appurtenances, rents,
royalties, mineral, oil and gas rights and profits, water, water rights, and
water stock appurtenant to the property, and all fixtures, machinery, equipment,
engines, boilers, incinerators, building materials, appliances and goods of
every nature whatsoever now or hereafter located in, or on, or used, or intended
to be used in connection with the property, including, but not limited to, those
for the purposes of supplying or distributing heating, cooling, electricity,
gas, water, air and light; and all elevators, and related machinery and
equipment, fire prevention and extinguishing apparatus, security and access
control apparatus, plumbing, bath tubs, water heaters, water closets, sinks,
ranges, stoves, refrigerators, dishwashers, disposals, washers, dryers, awnings,
storm windows, storm doors, screens, blinds, shades, curtains and curtain rods,
mirrors, cabinets, panelling, rugs, attached floor coverings, furniture,
pictures, antennas, trees and plants, and any and all other additional items of
personal property described in EXHIBIT "B" attached hereto and incorporated
herein; all of which, including replacements and additions thereto, shall be
deemed to be and remain a part of the real property covered by this Instrument;
and all of the foregoing, together with said property are herein referred to as
the "Property".
Borrower covenants that Borrower is lawfully seised of the estate hereby
conveyed and has the right to mortgage, grant, convey and assign the Property,
that the Property is unencumbered, and the Borrower will warrant and defend
generally the title to the Property against all claims and demands, subject to
any easements and restrictions listed in a schedule of exceptions to coverage in
any title insurance policy insuring Lender's interest in the Property.
FORM 4010 (PAGE 2 OF 8 PAGES)
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay when due
the principal of and interest on the indebtedness evidenced by the Note, any
prepayment and late charges provided in the Note and all other sums secured by
this Instrument.
2. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. Subject to applicable law
or to a written waiver by Lender, Borrower shall pay to Lender on the day
monthly installments of principal or interest are payable under the Note (or
on another day designated in writing by Lender), until the Note is paid in
full, a sum (herein "Funds") equal to one-twelfth of (a) the yearly water and
sewer rates and taxes and assessments which may be levied on the Property,
(b) the yearly ground rents, if any, (c) the yearly premium installments for
fire and other hazard insurance, rent loss insurance and such other insurance
covering the Property as Lender may require pursuant to paragraph 5 hereof,
(c) the yearly premium installments for mortgage insurance, if any. Any
waiver by Lender of a requirement that Borrower pay such Funds may be revoked
by Lender, in Lender's sole discretion, at any time upon notice in writing to
Borrower. Lender may require Borrower to pay to Lender, in advance, such
other Funds for other taxes, charges, premiums, assessments and impositions
in connection with Borrower or the Property which Lender shall reasonably
deem necessary to protect Lender's interests (herein "Other Impositions").
Unless otherwise provided by applicable law, Lender may require Funds for
Other Impositions to be paid by Borrower in a lump sum or in periodic
installments, at Lender's option.
The Funds shall be held in an institution(s) the deposits or accounts of
which are insured or guaranteed by a Federal or state agency (including Lender
if Lender is such an institution). Lender shall apply the Funds to pay said
rates, rents, taxes, assessments, insurance premiums and Other Impositions so
long as Borrower is not in breach of any covenant or agreement of Borrower in
this Instrument. Lender shall make no charge for so holding and applying the
Funds, analyzing said account or for verifying and compiling said assessments
and bills, unless Lender pays Borrower interest, earnings or profits on the
Funds and applicable law permits Lender to make such a charge. Borrower and
Lender may agree in writing at the time of execution of this Instrument that
interest on the Funds shall be paid to Borrower, and unless such agreement is
made or applicable law requires interest, earnings or profits to be paid, Lender
shall not be required to pay Borrower any interest, earnings or profits on the
Funds. Lender shall give to Borrower, without charge, an annual accounting of
the Funds in Lender's normal format showing credits and debits to the Funds and
the purpose for which each debit to the Funds was made. The Funds are pledged
as additional security for the sums secured by this Instrument.
If the amount of the Funds held by Lender at the time of the annual
accounting thereof shall exceed the amount deemed necessary by Lender to
provide for the payment of water and sewer rates, taxes, assessments,
insurance premiums, rents and Other Impositions, as they fall due, such
excess shall be credited to Borrower on the next monthly installment or
installments of Funds due. If at any time the amount of the Funds held by
Lender shall be less than the amount deemed necessary by Lender to pay water
and sewer rates, taxes, assessments, insurance premiums, rents and Other
Impositions, as they fall due, Borrower shall pay to Lender any amount
necessary to make up the deficiency within thirty days after notice from
Lender to Borrower requesting payment thereof.
Upon Borrowers' breach of any covenant or agreement of Borrower in this
Instrument, Lender may apply, in any amount and in any order as Lender shall
determine in Lender's sole discretion, any Funds held by Lender at the time of
application (i) to pay rates, rents, taxes, assessments, insurance premiums and
Other Impositions which are now or will hereafter become due, or (ii) as a
credit against sums secured by this Instrument. Upon payment in full of all
sums secured by this Instrument, Lender shall promptly refund to Borrower any
Funds held by Lender.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise, all
payments received by Lender from Borrower under the Note or this Instrument
shall be applied by Lender in the following order of priority: (i) amounts
payable to Lender by Borrower under paragraph 2 hereof; (ii) interest payable on
the Note; (iii) principal of the Note; (iv) interest payable on advances made
pursuant to paragraph 8 hereof; (v) principal of advances made pursuant to
paragraph 8 hereof; (vi) any other sums secured by this Instrument in such order
as Lender, at Lender's option, may determine; provided, however, that Lender
may, at Lender's option, apply any sums payable pursuant to paragraph 8 hereof
prior to interest on and principal of the Note, but such application shall not
otherwise affect the order of priority of application specified in this
paragraph 3.
4. CHARGES; LIENS. Borrower shall pay all water and sewer rates, rents,
taxes, assessments, premiums, and Other Impositions attributable to the Property
at Lender's option in the manner provided under paragraph 2 hereof or, if not
paid in such manner, by Borrower making payment, when due, directly to the payee
thereof, or in such other manner as Lender may designate in writing. Borrower
shall promptly furnish to Lender all notices of amounts due under this paragraph
4, and in the event Borrower shall make payment directly, Borrower shall
promptly furnish to lender receipts evidencing such payments. Borrower shall
promptly discharge any lien which has, or may have, priority over or equality
with, the lien of this Instrument, and Borrower shall pay, when due, the claims
of all persons supplying labor or materials to or in connection with the
Property. Without Lender's prior written permission, Borrower shall not allow
any lien inferior to this Instrument to be perfected against the Property.
5. HAZARD INSURANCE. Borrower shall keep the improvements now existing or
hereafter erected on the Property insured by carriers at all times satisfactory
to Lender against loss by fire, hazards included within the term "extended
coverage", rent loss and such other hazards, casualties, liabilities and
contingencies as Lender shall require and in such amounts and for such periods
as Lender shall require. All premiums on insurance policies shall be paid, at
Lender's option, in the manner provided under paragraph 2 hereof, or by Borrower
making payment, when due, directly to the carrier, or in such other manner as
Lender may designate in writing.
All insurance polices and renewals thereof shall be in a form acceptable to
Lender and shall include a standard mortgage clause in favor of and in form
acceptable to Lender. Lender shall have the right to hold the policies, and
Borrower shall promptly furnish to Lender all renewal notices and all receipts
of paid premiums. At least thirty days prior to the expiration date of a
policy, Borrower shall deliver to Lender a renewal policy in form satisfactory
to Lender.
In the event of loss, Borrower shall give immediate written notice to
the insurance carrier and to Lender. Borrower hereby authorizes and empowers
Lender as attorney-in-fact for Borrower to make proof of loss, to adjust and
compromise any claim under insurance policies, to appear in and prosecute any
action arising from such insurance policies, to collect and receive insurance
proceeds, and to deduct therefrom Lender's expenses incurred in the
collection of such proceeds; provided however, that nothing contained in this
paragraph 5 shall require Lender to incur any expense or take any action
hereunder. Borrower further authorizes Lender, at Lender's option, (a) to
hold the balance of such proceeds to be used to reimburse Borrower for the
cost of reconstruction or repair of the Property or (b) to apply the balance
of such proceeds to the payment of the sums secured by this Instrument,
whether or not then due, in the order of application set forth in paragraph 3
hereof.
If the insurance proceeds are held by Lender to reimburse Borrower for the
cost of restoration and repair of the Property, the Property shall be restored
to the equivalent of its original condition or such other condition as Lender
may approve in writing. Lender may, at Lender's option, condition disbursement
of said proceeds on Lender's approval of such plans and specifications of an
architect satisfactory to Lender, contractor's cost estimates, architect's
certificates, waivers of liens, sworn statements of mechanics and materialmen
and such other evidence of costs, percentage completion of construction,
application of payments, and satisfaction of liens as Lender may reasonably
require. If the insurance proceeds are applied to the payment of the sums
secured by this Instrument, any such application of proceeds to principal shall
not extend or postpone the due dates of the monthly installments referred to in
paragraphs 1 and 2 hereof. If the Property is sold pursuant to paragraph 27
hereof or if Lender acquires title to the Property, Lender shall have all of the
right, title and interest of Borrower in and to any insurance policies and
unearned premiums thereon and in and to the proceeds resulting from any damage
to the Property prior to such sale or acquisition.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (a) shall not commit
waste or permit impairment or deterioration of the Property, (b) shall not
abandon the Property, (c) shall restore or repair promptly and in a good and
workmanlike manner all
FORM 4010 (PAGE 3 OF 8 PAGES)
UNIFORM COVENANTS-MULTIFAMILY-1/77-FNMA/FHLMC UNIFORM INSTRUMENT
or any part of the Property to the equivalent of its original condition, or
such other condition as Lender may approve in writing, in the event of any
damage, injury or loss thereto, whether or not insurance proceeds are
available to cover in whole or in part the costs of such restoration or
repair, (d) shall keep the Property, including improvements, fixtures,
equipment, machinery and appliances thereon in good repair and shall replace
fixtures, equipment, machinery and appliances on the Property when necessary
to keep such items in good repair, (e) shall comply with all laws,
ordinances, regulations and requirements of any governmental body applicable
to the Property, (f) shall provide for professional management of the
Property by a residential rental property manager satisfactory to Lender
pursuant to a contract approved by Lender in writing, unless such requirement
shall be waived by Lender in writing, (g) shall generally operate and
maintain the Property in a manner to ensure maximum rentals, and (h) shall
give notice in writing to Lender of and, unless otherwise directed in writing
by Lender, appear in __________________________________ purporting to affect
the Property, the security of this Instrument or the rights or powers of
Lender. Neither Borrower nor any tenant or other person shall remove,
demolish or alter any improvement now existing or hereafter erected on the
Property or any fixture, equipment, machinery or appliance in or on the
Property except when incident to the replacement of fixtures, equipment,
machinery and appliances with items of like kind.
7. USE OF PROPERTY. Unless required by applicable law or unless Lender has
otherwise agreed in writing, Borrower shall not allow changes in the use for
which all or any part of the Property was intended at the time this Instrument
was executed. Borrower shall not initiate or acquiesce in a change in the
zoning classification of the Property without Lender's prior written consent.
8. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the
covenants and agreements contained in this Instrument, or if any action or
proceeding is commenced which affects the Property or title thereto or the
interest of Lender therein, including, but not limited to, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then Lender at Lender's option may make such appearances,
disburse such sums and take such action as Lender deems necessary, in its sole
discretion, to protect Lender's interest, including, but not limited to (i)
disbursement of attorney's fees, (ii) entry upon the Property to make repairs,
(iii) procurement of satisfactory insurance as provided in paragraph 5 hereof.
Any amounts disbursed by Lender pursuant to this paragraph 8, with interest
thereon, shall become additional indebtedness of Borrower secured by this
Instrument. Unless Borrower and Lender agree to other terms of payment, such
amounts shall be immediately due and payable and shall bear interest from the
date of disbursement at the rate stated in the Note unless collection from
Borrower of interest at such rate would be contrary to applicable law, in which
event such amounts shall bear interest at the highest rate which may be
collected from Borrower under applicable law. Borrower hereby covenants and
agrees that Lender shall be subrogated to the lien of any mortgage or other lien
discharged, in whole or in part, by the indebtedness secured hereby. Nothing
contained in this paragraph 8 shall require Lender to incur any expense or take
any action hereunder.
9. INSPECTION. Lender may make or cause to be made reasonable entries upon
and inspections of the Property.
10. BOOKS AND RECORDS. The provisions of Section 2.2(d) of that certain Master
Reimbursement Agreement between Borrower and the Federal National Mortgage
Association, dated as of July 1, 1996 (the "Master Reimbursement Agreement"),
are incorporated herein by this reference as if fully set forth herein.
11. CONDEMNATION. Borrower shall promptly notify Lender of any action or
proceeding relating to any condemnation or other taking, whether direct or
indirect, of the Property, or part thereof, and Borrower shall appear in and
prosecute any such action or proceeding unless otherwise directed by Lender in
writing. Borrower authorizes Lender, at Lender's option, as attorney-in-fact
for Borrower, to commence, appear in and prosecute, in Lender's or Borrower's
name, any action or proceeding relating to any condemnation or other taking of
the Property, whether direct or indirect, and to settle or compromise any claim
in connection with such condemnation or other taking. The proceeds of any
award, payment or claim for damages, direct or consequential, in connection with
any condemnation or other taking, whether direct or indirect, of the Property,
or part thereof, or for conveyances in lieu of condemnation, are hereby assigned
to and shall be paid to Lender.
Borrower authorizes Lender to apply such awards, payments, proceeds or
damages, after the deduction of Lender's expenses incurred in the collection
of such amounts, at Lender's option, to restoration or repair of the Property
or to payment of the sums secured by this Instrument, whether or not then
due, in the order of application set forth in paragraph 3 hereof, with the
balance, if any, to Borrower. Unless Borrower and Lender otherwise agree in
writing, any application of proceeds to principal shall not extend or
postpone the due date of the monthly installments referred to in paragraphs 1
and 2 hereof. Borrower agrees to execute such further evidence of assignment
of any awards, proceeds, damages or claims arising in connection with such
condemnation or taking as Lender may require.
12. BORROWER AND LIEN NOT RELEASED. From time to time, Lender may, at Lender's
option, without giving notice to or obtaining the consent of Borrower,
Borrower's successors or assigns or of any junior lienholder or guarantors,
without liability on Lender's part and notwithstanding Borrower's breach of any
covenant or agreement of Borrower in this Instrument, extend the time for
payment of said indebtedness or any part thereof, reduce the payments thereon,
release anyone liable on any of said indebtedness, accept a renewal note or
notes therefor, modify the terms and time of payment of said indebtedness,
release from the lien of this Instrument any part of the Property, take or
release other or additional security, reconvey any part of the Property, consent
to any map or plan of the Property, consent to the granting of any easement,
join in any extension or subordination agreement, and agree in writing with
Borrower to modify the rate of interest or period of amortization of the Note or
change the amount of the monthly installments payable thereunder. Any actions
taken by Lender pursuant to the terms of this paragraph 12 shall not affect the
obligation of Borrower or Borrower's successors or assigns to pay the sums
secured by this Instrument and to observe the covenants of Borrower contained
herein, shall not affect the guaranty of any person, corporation, partnership or
other entity for payment of the indebtedness secured hereby, and shall not
affect the lien or priority of lien hereof on the Property. Borrower shall pay
Lender a reasonable service charge, together with such title insurance premiums
and attorney's fees as may be incurred at Lender's option, for any such action
if taken at Borrower's request.
13. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in
exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any right or remedy.
The acceptance by Lender or payment of any sum secured by this Instrument after
the due date of such payment shall not be a waiver of Lender's right to either
require prompt payment when due of all other sums so secured or to declare a
default for failure to make prompt payment. The procurement of insurance or
the payment of taxes or other liens or charges by Lender shall not be a waiver
of Lender's right to accelerate the maturity of the indebtedness secured by this
Instrument, nor shall Lender's receipt of any awards, proceeds or damages under
paragraphs 5 and 11 hereof operate to cure or waive Borrower's default in
payment of sums secured by this Instrument.
*Reimbursement Agreement"), are incorporated herein by this reference as if
fully set for the herein
FORM 4010 (PAGE 4 OF 8 PAGES)
14. ESTOPPEL CERTIFICATE. Borrower shall within ten days of a written request
from Lender furnish Lender with a written statement, duly acknowledged, setting
forth the sums secured by this Instrument and any right of set-off, counterclaim
or other defense which exists against such sums and the obligations of this
Instrument.
15. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This instrument is intended to
be a security agreement pursuant to the Uniform Commercial Code for any of the
items specified above as part of the Property which, under applicable law, may
be subject to a security interest pursuant to the Uniform Commercial Code, and
Borrower hereby grants Lender a security interest in said items. Borrower
agrees that Lender may file this Instrument, or a reproduction thereof, in the
real estate records or other appropriate index, as a financing statement for any
of the items specified above as part of the Property. Any reproduction of
this Instrument or of any other security agreement or financing statement shall
be sufficient as a financing statement. In addition, Borrower agrees to
execute and deliver to Lender, upon Lender's request, any financing statements,
as well as extensions, renewals and amendments thereof, and reproductions of
this Instrument in such form as Lender may require to perfect a security
interest with respect to said items. Borrower shall pay all costs of filing
such financing statements and any extensions, renewals, amendments and releases
thereof, and shall pay all reasonable costs and expenses of any record searches
for financing statements Lender may reasonably require. Without the prior
written consent of Lender, Borrower shall not create or suffer to be created
pursuant to the Uniform Commercial Code any other security interest in said
items, including replacements and additions thereto. Upon Borrower's breach of
any covenant or agreement of Borrower contained in this Instrument, including
the covenants to pay when due all sums secured by this Instrument. Lender shall
have the remedies of a secured party under the Uniform Commercial Code and, at
Lender's option, may also invoke the remedies provided in paragraph 27 of this
Instrument as to such items. In exercising any of said remedies, Lender may
proceed against the items of real property and any items of personal property
specified above as part of the Property separately or together and in any order
whatsoever, without in any way affecting the availability of Lender's remedies
under the Uniform Commercial Code or of the remedies provided in paragraph 27 of
this Instrument.
16. LEASES OF THE PROPERTY. Borrower shall comply with and observe
Borrower's obligations as landlord under all leases of the Property or any
part thereof. Borrower will not lease any portion of the Property for
non-residential use except with the prior written approval of Lender.
Borrower, at Lender's request, shall furnish Lender with executed copies of
all leases now existing or hereafter made of all or any part of the Property,
and all leases now or hereafter entered into will be in form and substance
subject to the approval of Lender. All leases of the Property shall
specifically provide that such leases are subordinate to this Instrument;
that the tenant attorns to Lender, such attornment to be effective upon
Lender's acquisition of title in the Property; that the tenant agrees to
execute such further evidences of attornment as Lender may from time to time
request; that the attornment of the tenant shall not be terminated by
foreclosure; and that Lender may, at Lender's option, accept or reject such
attornments. Borrower shall not, without Lender's written consent, execute,
modify, surrender or terminate, either orally or in writing, any lease now
existing or hereafter made of all or any part of the Property providing for a
term of three years or more, permit an assignment or sublease of such a lease
without Lender's written consent, or request or consent to the subordination
of any lease of all or any part of the Property to any lien subordinate to
this Instrument. If Borrower becomes aware that any tenant proposes to do,
or is doing, any act or thing which may give rise to any right of set-off
against rent, Borrower shall (i) take such steps as shall be reasonably
calculated to prevent the accrual of any right to a set-off against rent,
(ii) notify Lender thereof and of the amount of said set-offs, and (iii)
within ten days after such accrual, reimburse the tenant who shall have
acquired such right to set-off or take such other steps as shall effectively
discharge such set-off and as shall assure that rents thereafter due shall
continue to be payable without set-off or deduction.
Upon Lender's request, Borrower shall assign to Lender, by written
instrument satisfactory to Lender, all leases now existing or hereafter made of
all or any part of the Property and all security deposits made by tenants in
connection with such leases of the Property. Upon assignment by Borrower to
Lender of any leases of the Property, Lender shall have all of the rights and
powers possessed by Borrower prior to such assignment and Lender shall have the
right to modify, extend or terminate such existing leases and to execute new
leases, in Lender's sole discretion.
17. REMEDIES CUMULATIVE. Each remedy provided in this Instrument is distinct
and cumulative to all other rights or remedies under this Instrument or afforded
by law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.
18. ACCELERATION IN CASE OF BORROWER'S INSOLVENCY. In the event (i) Borrower
shall (A) commence a voluntary case under the Federal bankruptcy laws (as now or
hereafter in effect), (B) file a petition seeking to take advantage of any other
laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
debt adjustment, winding up or composition or adjustment of debts, (C) consent
to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (D)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of a substantial part of its property,
domestic or foreign, (E) admit in writing its inability to pay, or generally not
be paying, its debts as they become due, (F) make a general assignment for the
benefit of creditors, (G) assert that it has no liability or obligations under
the Note, this Instrument or any of the other Loan Documents, or (H) take any
action for the purpose of effecting any of the foregoing; or (ii) a case or
other proceedings shall be commenced against Borrower in any court of competent
jurisdiction seeking (A) relief under the Federal bankruptcy laws (as now or
hereafter in effect) or under any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up or composition or adjustment
of debts, or (B) the appointment of a trustee, receiver, custodian, liquidator
or the like of Borrower or of all or a substantial part of the property,
domestic or foreign, of Borrower, and any such case or proceeding shall continue
undismissed or unstayed for a period of 60 consecutive calendar days, or any
order granting the relief requested in any such case or proceeding against
Borrower (including an order for relief under such Federal bankruptcy laws)
shall be entered, or (iii) there is an attachment, execution or other judicial
seizure of any portion of Borrower's property and such seizure is not discharged
within ten calendar days, then Lender may, at Lender's option, declare all of
the sums secured by this Instrument to be immediately due and payable without
prior notice to Borrower, and Lender may invoke any remedies permitted by
paragraph 27 of this Instrument. Any attorney's fees and other expenses
incurred by Lender in connection with Borrower's bankruptcy or any of the other
aforesaid events shall be additional indebtedness of Borrower secured by this
Instrument pursuant to paragraph 8 hereof.
SEE SPECIAL RIDER
SEE RIDER
FORM 4010 (PAGE 5 OF 8 PAGES)
21. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements herein contained shall bind; and the
rights hereunder shall inure to, the respective successors and assigns of Lender
and Borrower, subject to the provisions of paragraph 19 hereof. All covenants
and agreements of Borrower shall be joint and several. In exercising any rights
hereunder or taking any actions provided for herein, Lender may act through its
employees, agents or independent contractors as authorized by Lender. The
captions and headings of the paragraphs of this Instrument are for convenience
only and are not to be used to interpret or define the provisions hereof.
22. UNIFORM MULTIFAMILY INSTRUMENT; GOVERNING LAW; SEVERABILITY. This form of
multifamily instrument combines uniform covenants for national use and non-
uniform covenants _____________________________________ to constitute a uniform
security instrument covering real property and related fixtures and personal
property. This Instrument shall be governed by the law of the jurisdiction in
which the Property is located. In the event that any provision of this
Instrument or the Note conflicts with applicable law, such conflict shall not
affect other provisions of this Instrument or the Note which can be given effect
without the conflicting provisions, and to this end the provisions of this
Instrument and the Note are declared to be severable. In the event that any
applicable law limiting the amount of interest or other charges permitted to be
collected from Borrower is interpreted so that any charge provided for in this
Instrument or in the Note, whether considered separately or together with other
charges levied in connection with this Instrument and the Note, violates such
law, and Borrower is entitled to the benefit of such law, such charge is hereby
reduced to the extent necessary to eliminate such violation. The amounts, if
any, previously paid to Lender in excess of the amounts payable to Lender
pursuant to such charges as reduced shall be applied by Lender to reduce the
principal of the indebtedness evidenced by the Note. For the purpose of
determining whether any applicable law limiting the amount of interest or other
charges permitted to be collected form Borrower has been violated, all
indebtedness which is secured by this Instrument or evidenced by the Note and
which constitutes interest, as well as all other charges levied in connection
with such indebtedness which constitute interest, shall be deemed to be
allocated and spread over the stated term of the Note. Unless otherwise
required by applicable law, such allocation and spreading shall be effected in
such a manner that the rate of interest computed thereby is uniform throughout
the stated term of the Note.
23. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the right to
assert any statute of limitations as a bar to the enforcement of the lien of
this Instrument or to any action brought to enforce the Note or any other
obligation secured by this Instrument.
24. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
security interests in the Property held by Lender or by any other party,
Lender shall have the right to determine the order in which any or all of the
Property shall be subjected to the remedies provided herein. Lender shall
have the right to determine the order in which any or all portions of the
indebtedness secured hereby are satisfied from the proceeds realized upon the
exercise of the remedies provided herein. Borrower, any party who consents
to this Instrument and any party who now or hereafter acquires a security
interest in the Property and who has actual or constructive notice hereof
hereby waives any and all right to require the marshalling of assets in
connection with the exercise of any of the remedies permitted by applicable
law or provided herein.
26. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION. As
part of the consideration for the indebtedness evidenced by the Note, Borrower
hereby absolutely and unconditionally assigns and transfers to Lender all the
rents and revenues of the Property, including those now due, past due or to
become due by virtue of any lease or other agreement for the occupancy or use of
all or any part of the Property, regardless of to whom the rents and revenues of
the Property are payable. Borrower hereby authorizes Lender or Lender's agents
to collect the aforesaid rents and revenues and hereby directs each tenant of
the Property to pay such rents to Lender or Lender's agents; provided, however,
that prior to written notice given by Lender to Borrower of the breach by
Borrower of any covenant or agreement of Borrower in this Instrument, Borrower
shall collect and receive all rents and revenues of the Property as trustee for
the benefit of Lender and Borrower, to apply the rents and revenues so collected
to the sums secured by this Instrument in the order provided in paragraph 3
hereof with the balance, so long as no such breach has occurred, to the account
of Borrower, it being intended by Borrower and Lender that this assignment of
rents constitutes an absolute assignment and not an assignment for additional
security only. Upon delivery of written notice by Lender to Borrower of the
breach by Borrower of any covenant or agreement of Borrower in this Instrument,
and without the necessity of Lender entering upon and taking and maintaining
full control of the Property in person, by agent or by a court-appointed
receiver, Lender shall immediately be entitled to possession of all rents and
revenues of the Property as specified in this paragraph 26 as the same become
due and payable, including but not limited to rents then due and unpaid, and all
such rents shall immediately upon delivery of such notice be held by Borrower as
trustee for the benefit of Lender only; provided, however, that the written
notice by Lender to Borrower of the breach by Borrower shall contain a statement
that Lender exercises its rights to such rents. Borrower agrees that commencing
upon delivery of such written notice of Borrower's breach by Lender to Borrower,
each tenant of the Property shall make such rents payable to and pay such rents
to Lender or Lender's agents on Lender's written demand to each tenant therefor,
delivered to each tenant personally, by mail or by delivering such demand to
each rental unit, without any liability on the part of said tenant to inquire
further as to the existence of a default by the Borrower.
Borrower hereby covenants that Borrower has not executed any prior
assignment of said rents that remain in effect as of the date hereof, that
Borrower has not performed, and will not perform, any acts or has not executed,
and will not execute, any instrument which would prevent Lender from exercising
its rights under this paragraph 26, and that at the time of execution of this
Instrument there has been no anticipation or prepayment of any of the rents of
the Property for more than two months prior to the due dates of such rents.
Borrower covenants that Borrower will not hereafter collect or accept payment of
any rents of the Property more than two months prior to the due dates of such
rents. Borrower further covenants that Borrower will execute and deliver to
Lender such further assignments of rents and revenues of the Property as Lender
may from time to time request.
Upon Borrower's breach of any covenant or agreement of Borrower in this
Instrument, Lender may in person, by agent or by a court-appointed receiver,
regardless of the adequacy of Lender's security, enter upon and take and
maintain full control of the Property in order to perform all acts necessary
and appropriate for the operation and maintenance thereof including, but not
limited to, the execution, cancellation or modification of leases, the
collection of all rents and revenues of the Property, the making of repairs
to the Property and the execution or termination of contracts providing for
the management or maintenance of the Property, all on such terms as are
deemed best to protect the security of this Instrument. In the event Lender
elects to seek the appointment of a receiver for the Property upon Borrower's
breach of any covenant or agreement of Borrower in this Instrument, Borrower
hereby expressly consents to the appointment of such receiver. Lender or the
receiver shall be entitled to receive a reasonable fee for so managing the
Property.
All rents and revenues collected subsequent to delivery of written notice
by Lender to Borrower of the breach by Borrower of any covenant or agreement of
Borrower in this Instrument shall be applied first to the costs, if any, of
taking control of and managing the Property and collecting the rents, including,
but not limited to, attorney's fees, receiver's fees, premiums on receiver's
bonds, costs of repairs to the Property, premiums on insurance policies, taxes,
assessments and other charges on the Property, and the costs of discharging any
obligation or liability of Borrower as lessor or landlord of the Property and
then to the sums secured by this Instrument. Lender or the receiver shall have
access to the books and records used in the operation and maintenance of the
Property and shall be liable to account only for those rents actually received.
Lender shall not be liable to Borrower, anyone claiming under or through
Borrower or anyone having an interest in the Property by reason of anything done
or left undone by Lender under this paragraph 26.
FORM 4010 (PAGE 6 OF 8 PAGES)
UNIFORM COVENANTS-MULTIFAMILY-1/77-FNMA/FHLMC UNIFORM INSTRUMENT
If the rents of the Property are not sufficient to meet the costs, if any,
of taking control of and managing the Property and collecting the rents, any
funds expended by Lender for such purposes shall become indebtedness of Borrower
to Lender secured by this Instrument pursuant to paragraph 8 hereof. Unless
Lender and Borrower agree in writing to other terms of payment, such amounts
shall be payable upon notice from Lender to Borrower requesting payment thereof
and shall bear interest from the date of disbursement at the rate stated in the
Note unless payment of interest at such rate would be contrary to applicable
law, in which event such amounts shall bear interest at the highest rate which
may be collected from Borrower under applicable law.
Any entering upon and taking and maintaining of control of the Property
by Lender or the receiver and any application of rents as provided herein
shall not cure or waive any default hereunder or invalidate any other right
or remedy ______________ of Lender ____________ provided herein. This
assignment of rents of the Property shall terminate at such time as this
Instrument ceases to secure indebtedness held by Lender.
NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as
follows:
27. ACCELERATION; REMEDIES. Upon Borrower's breach of any covenant or
agreement of Borrower in this Instrument, including, but not limited to,
the covenants to pay when due any sums secured by this Instrument. Lender
at Lender's option may declare all of the sums secured by this Instrument
to be immediately due and payable without further demand and may foreclose
this Instrument by judicial proceeding and may invoke any other remedies
permitted by applicable law or provided herein. Lender shall be entitled
to collect all costs and expenses incurred in pursuing such remedies,
including, but not limited to, attorney's fees, costs of documentary
evidence, abstracts and title reports.
28. RELEASE. Upon payment of all sums secured by this Instrument, Lender
shall release this Instrument. Borrower shall pay Lender's reasonable
costs incurred in releasing this Instrument.
29. ATTORNEY'S FEES. As used in this Instrument and in the Note,
"attorney's fees" shall include attorney's fees, if any, which may be
awarded by an appellate court.
IN WITNESS WHEREOF, Borrower has executed this Instrument or has caused the
same to be executed by its representatives thereunto duly authorized.
BORROWER:
Signed, and Delivered OTC APARTMENTS LIMITED PARTNERSHIP,
in the Presence of: a Florida limited partnership
/s/ Lolly Avant By: AIMCO/OTC QRS, INC., a Delaware
- -------------------------- corporation, its sole General Partner
Lolly Avart
/s/ F.M. DePrez By: /s/ Harry Alcock
- -------------------------- ---------------------------
F.M. DePrez Name: Harry Alcock
Title : Vice President
FORM 4010 (PAGE 7 OF 8 PAGES)
ACKNOWLEDGMENT
STATE OF FLORIDA )
) ss:
COUNTY OF HILLSBOROUGH )
The foregoing instrument was acknowledged before me this 28th day of
June, 1996, by Harry Alcock, Vice President of AIMCO/OTC QRS, INC., a Delaware
corporation, on behalf of said corporation, the general partner of OTC
APARTMENTS LIMITED PARTNERSHIP, a Florida limited partnership. He who is
personally known to me/has produced driver license as identification.
/s/ Patricia C. Sheppard
-----------------------------------
Printed/Typed Name:________________
Notary Public
My Commission Expires:
[NOTARY SEAL]
FLORIDA
(PAGE 8 OF 8)