[HOUSING FINANCE AUTHORITY OF
BROWARD COUNTY, FLORIDA]
SPECIAL RIDER TO MULTIFAMILY INSTRUMENT
THIS SPECIAL RIDER TO MULTIFAMILY INSTRUMENT (this "Special Rider") is made
as of the 1st day of July, 1996, and is incorporated into and shall be deemed to
amend and supplement the Multifamily First Mortgage, Assignment of Rents and
Security Agreement as of even date herewith (the "Instrument"), given by the
undersigned, OTC APARTMENTS LIMITED PARTNERSHIP, a Florida limited partnership
(the "Borrower") to HOUSING FINANCE AUTHORITY OF BROWARD COUNTY, FLORIDA
(sometimes herein, the "Issuer"), together with its successors, assigns and
transferees (the "Lender"), and covering the property described in the
Instrument and located in Broward County, Florida (the "Property"), as amended
by that certain Rider to Multifamily Instrument as of even date herewith
(collectively, with this Special Rider and any other riders to the Instrument
given by Borrower to Lender and covering the Property, the "Multifamily
Instrument"). The Multifamily Instrument secures, among other things, the Note
(as defined in the Instrument), and any future addenda, allonges and amendments
to the Note, and all obligations owed by Borrower for the payment of
$9,870,000.00 in principal, interest thereon, and other amounts as evidenced by
and set forth in the Note (the "Mortgage Loan").
The covenants and agreements of this Special Rider, and the covenants and
agreements of any other riders to the Instrument, shall be incorporated into and
shall amend and supplement the covenants and agreements of the Instrument as if
this Special Rider and the other riders were a part of the Instrument, and all
references to the Instrument in the Loan Documents shall mean the Instrument as
so amended and supplemented. Any conflict between the provisions of the
Instrument, as amended by the Rider (as defined in the Instrument) and this
Special Rider shall be resolved in favor of this Special Rider.
ADDITIONAL COVENANTS. In addition to the covenants and agreements made in
the Instrument and the Rider, Borrower and Lender further covenant and agree as
follows:
A. REGULATORY AGREEMENT. Lender acknowledges and agrees that the
operation of the Property will be subject to that certain Amended and Restated
Regulatory Agreement and Agreement of Deed Restrictions dated as of June 15,
1996 and executed by Issuer, The Bank of New York, as Trustee (the "Bond
Trustee") and Borrower (the "Regulatory Agreement") regulating or restricting
the use or manner of operation of the Property.
B. CROSS DEFAULT. The failure by Borrower to pay when due any amount
payable under the Note, the Multifamily Instrument or any other Loan Document or
the failure (beyond applicable cure periods, if any) by Borrower to perform or
observe any covenant or obligation of Borrower contained in (a) the Note, the
Multifamily Instrument or any other Loan Document, (b) any of the documentation
relating to the Bonds, including, without limitation, the Financing Agreement,
(c) any subordinate
financing, (d) the Regulatory Agreement, (e) that certain Master Reimbursement
Agreement as of even date herewith by Borrower and Fannie Mae, as the same may
be amended, supplemented, modified or restated from time to time (the "Master
Reimbursement Agreement"), and (f) any form of public, quasi-public,
public/private or private debt and/or equity infusion, grant, subsidy, tax
relief or abatement plan, program or other form of assistance, shall, at
Lender's option, in its discretion, constitute a default under the Note, the
Multifamily Instrument and the other Loan Documents. Any such default shall:
(i) entitle Lender, at its option, in its discretion, to invoke any of the
remedies set forth in Paragraph 27 of the Instrument or as otherwise afforded by
law or equity; and (ii) at Fannie Mac's option, in its discretion, constitute a
default under and in accordance with the Master Reimbursement Agreement.
Notwithstanding anything herein to the contrary, the provisions of clause (e)
and/or clause (ii) above of this Paragraph B shall become null and void and of
no further force or effect upon: (i) a transfer of the Property and assumption
of the Multifamily Instrument pursuant to Section 4.5 of the Master
Reimbursement Agreement; and (ii) written notice from Fannie Mae to the Borrower
and the Permitted Transferee (as defined in the Master Reimbursement Agreement)
confirming that such provisions are of no further force or effect.
C. LEASES. All leases of the residential housing units in the Property
must (a) be legally valid, binding and enforceable obligations of the tenants,
(b) comply with all applicable laws and (c) satisfy the standards of the Fannie
Mae Delegated Underwriting and Servicing Guide in its present form as of the
date of any such lease.
D. MORTGAGE EXPENSES. Should Lender (or "Servicer", as "such term is
defined in the Master Reimbursement Agreement) pay any Mortgage Expenses (as
hereinafter defined), Borrower shall on demand immediately reimburse Lender
(or Lender on behalf of Servicer, as applicable) for the full amount of such
Mortgage Expenses paid by Lender (or Servicer, as applicable). For purposes
of this paragraph E, "Mortgage Expenses" shall mean the cost of real estate
taxes, appraisal fees, insurance fees, legal fees and any other expenses
which may be required to maintain the priority of, or to protect or enforce
Lender's rights in, the Multifamily Instrument, including (i) fees and
expenses of the Servicer which are not paid by Borrower, (ii) fees and
expenses paid to maintain in full force and effect or realize the benefit of
any insurance with respect to the Multifamily Instrument and (iii) any fees
or expenses advanced on behalf of Borrower by Fannie Mae to the Bond Trustee
or the Issuer.
E. CHARGES; LIENS. Uniform Covenant 4 of the Instrument ("Charges;
Liens") is amended to add the following provisions at the end thereof:
Provided that Borrower is not in breach of any of its covenants,
obligations or agreements under this Instrument and no event of default has
occurred and is continuing under the Note or any other Loan Document,
Borrower shall not be required to pay or discharge any obligation imposed
upon Borrower by this paragraph 4 so long as Borrower has given written
notice of the same to Lender and is in good faith and at its sole cost and
expense diligently contesting the same or the validity thereof by
appropriate legal proceedings, which proceedings must operate to prevent
the
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collection thereof or realization thereon, the sale or forfeiture of the
Property or any portion thereof to satisfy the same; provided, however,
that during such contest (i) Borrower shall, at the option of Lender,
provide security reasonably satisfactory to Lender and sufficient in
Lender's reasonable judgment to cover the amount of the contested
obligations, with interest on such obligations (to the extent interest
would be due the obligee) for that period that such proceedings may
reasonably be expected to take, and of any additional interest, charge,
fine, penalty, fee or expense arising from or incurred as a result of such
contest, (ii) the title company insuring the Property agrees to insure over
any potential lien that may result from such contest, and (iii) if at any
time the payment of any obligation imposed upon Borrower by this paragraph
4 shall become necessary to prevent (a) the delivery of a tax deed
conveying the Property or any portion thereof, or (b) the sale of the tax
lien therefor because of non-payment (c) the imposition of any penalty,
fine, charge, fee, cost or expense on Lender, then Borrower shall pay the
same in sufficient time to prevent the occurrence of any of the foregoing.
F. CONDEMNATION PROCEEDS; RESTORATION OF PROPERTY. Uniform Covenant 11 of
the Instrument ("Condemnation") is amended to add the following provision at the
end thereof:
Lender shall permit Borrower to apply any such awards, payments,
proceeds or damages, after deduction of Lender's expenses incurred in the
collection of such amounts, to the payment of repairs to the Property if
all of the following conditions are met: (i) Borrower is not in breach or
default of any provision of the Instrument, the Note or any other loan
Document; (ii) Lender determines that there will be sufficient funds to
restore and repair the Property to a condition approved by Lender; (iii)
Lender determines that the rental income of the Property, after restoration
and repair of the Property to a condition approved by Lender, will be
sufficient to meet all operating costs and other expenses, payments for
reserves and loan repayment obligations relating to the Property; (iv)
Lender determines that restoration and repair of the Property to a
condition approved by Lender will be completed prior to the earlier of
either (1) the maturity date of the Note or (2) within one year of the date
of the loss or casualty to the Property; and (v) Lender determines that
upon the restoration and repair of the Property there will not have been a
material dimunition in the value of the Property since the date immediately
preceding the condemnation.
G. LEASES. Uniform Covenant 16 of the Instrument ("Leases of the
Property") is modified by adding the phase "entered into hereafter" after the
words "All leases of the Property" in the third (3rd) sentence of such Uniform
Covenant 16.
H. Deleted.
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I. MODIFICATION OF SINGLE ASSET REQUIREMENTS. Paragraph J of the
Rider is amended to read as follows:
J. Single Purpose Entity.
Borrower covenants and agrees that Borrower shall at all times
during the term of this Instrument comply with the covenants set forth
in Sections 2.2(i) and 2.3(k) of the Master Reimbursement Agreement
and that Borrower shall not violate the provisions of subsections
2.3(a)(iii) or 2.3(a)(iv) of the Master Reimbursement Agreement.
J. GRANT OF INTEREST IN CERTAIN FUNDS. Without limiting the generality
of the first (1st) sentence of Uniform Covenant 15 of the Instrument and
pursuant to the Uniform Commercial Code, Borrower hereby grants, pledges and
assigns to Lender all of Borrower's right, title and interest in and to all
funds and accounts and investments of funds and accounts now or hereafter held
by the Bond Trustee pursuant to the Indenture, including any and all loan funds,
escrow funds, revenue funds, debt service funds, reserve funds, redemption funds
and other funds and securities and other instruments comprising investments of
any of the foregoing and interest and other income derived from any of the
foregoing, all to be held by Lender in trust in accordance with the terms of the
Indenture.
K. NOTICES. Uniform Covenant 20 of the Instrument is amended to
read as follows:
All notices, directions, certificates or other communications
hereunder shall be given by certified or registered mail, return
receipt requested, OR by overnight courier addressed to the
appropriate notice address set forth below. Any of the parties hereto
may, by such notice described above, designate any further or
different address to which subsequent notices, certificates or other
communications shall be sent without any requirement of execution of
any amendment to this Instrument. Any such notice, certificate or
communication shall be deemed to have been given as of the date of
actual delivery or the date of failure to deliver by reason of refusal
to accept delivery or changed address of which no notice was given
pursuant to this paragraph 20. Unless otherwise directed by Fannie
Mae, all notices from Borrower pursuant to this Instrument shall also
be given to the Servicer in accordance with this paragraph 20. The
notice addresses are as follows:
(a) if to Borrower:
OTC Apartments Limited Partnership
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222-4348
Attn: Vice Chairman
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(b) if to Fannie Mae:
if by mail or overnight courier:
Fannie Mae
3900 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Attn: Senior Vice President
Multifamily Activities
if by messenger:
Fannie Mae
3939 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Attn: Senior Vice President
Multifamily Activities
in each case, with copies to:
Fannie Mae
Southwest Regional Office
Two Galleria Tower
13455 Noel Road, Suite 600
Dallas, Texas
Attn: Regional Vice President
Multifamily Activities
and to:
Fannie Mae
3900 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Attn: Multifamily Mortgage Operations
Manager, Multifamily Deliveries
(c) if to Servicer:
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, PA. 19044-8015
Attn: Barry Moore
L. CHOICE OF LAW; CONSENT TO JURISDICTION. The provisions of Section 7.8 and
Section 7.9 of the Reimbursement Agreement are hereby incorporated by reference
herein as if fully set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Special Rider or
have caused the same to be executed by their respective representatives
thereunto duly authorized.
BORROWER:
Signed, Sealed and OTC APARTMENTS LIMITED PARTNERSHIP, a
Delivered in the Florida limited partnership
Presence of:
/s/ Lolly Avant By: AIMCO/OTC QRS, INC., a Delaware
- ------------------------- corporation, its sole General
Lolly Avant Partner
/s/ F.M. DePrez By: /s/ Harry Alcock
- ------------------------- -------------------------------
F.M. DePrez Harry Alcock
Vice President
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