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 Second Mortgage, Assignment of Rents and
Security Agreement as of even date herewith (the "Instrument"), given by OTC
APARTMENTS LIMITED PARTNERSHIP, a Florida limited partnership ("Borrower") for
the benefit of FEDERAL NATIONAL MORTGAGE ASSOCIATION, a federally chartered
corporation ("Fannie Mae" or "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 the same date (the
"Rider") (collectively, with this Special Rider and any other riders to the
Instrument given by the Borrower to Lender and covering the Property, the
"Multifamily Instrument").
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 (as
defined below) shall mean the Instrument as so amended and supplemented. Any
conflict between the provisions of the Instrument, as amended by the Rider
and this Special Rider shall be resolved in favor of this Special Rider.
Initially-capitalized terms used in this Multifamily Instrument, which are
not defined in this Multifamily Instrument, shall have the meanings given to
those terms in the Reimbursement Agreement.
ADDITIONAL COVENANTS. Borrower and Lender further covenant and agree as
follows:
A. ADDITIONAL SECURITY - OBLIGATIONS SECURED BY OTHER SECURITY
INSTRUMENTS. The term "Secured Obligations" as used in this Multifamily
Instrument shall also include, and this Multifamily Instrument shall also
secure, the payment and performance of all obligations secured by (i) each of
the other mortgages, deeds to secure debt and/or deeds of trust identified in
the Reimbursement Agreement as the "REIMBURSEMENT MORTGAGES", including any
Reimbursement Mortgage on any New Property that is granted after the date hereof
(collectively, the "Reimbursement Mortgages"); and (ii) each of the other
mortgages, deeds to secure debt and/or deeds of trust identified in the
Reimbursement Agreement as the "Bond Mortgages" (other than the Bond Mortgage,
if any, with respect to the Property), including any Bond Mortgage on a New
Property that is granted after the date hereof (collectively, the "Subject Bond
Mortgages"). Each of the other Reimbursement Mortgages and each of the Subject
Bond Mortgages is hereinafter referred to individually as an "Other Security
Instrument," and collectively as the "Other Security Instruments". The Other
Security Instruments existing as of the date of this Multifamily Instrument are
identified on Schedule I to this Multifamily Instrument attached hereto.
B. CROSS DEFAULT. The failure by Borrower to pay when due any amount
payable under any Related Mortgage Note, the Reimbursement Agreement, this
Multifamily Instrument or any other Loan Document or the failure (beyond
applicable cure periods, if any) by the Borrower to perform or observe any
covenant or any
obligation of Borrower contained in (a) any other Loan Document, (b) any
subordinate financing, (c) that certain Master Reimbursement Agreement as of
even date herewith by Borrower and Fannie Mae, as the same may be amended,
supplemented or otherwise modified from time to time (the "Reimbursement
Agreement"), and (d) 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 this Multifamily Instrument and the other
Loan Documents. Any such default by Borrower under this Multifamily Instrument
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 Lender's option, in its discretion,
constitute a default by Borrower under any or all of the Other Security
Instruments and the Reimbursement Agreement.
C. WAIVER OF MARSHALLING RIGHTS. Borrower waives all rights to have all
or part of the Property described in this Instrument and/or the mortgaged
property described in any of the Other Security Instruments marshalled upon any
foreclosure of this Instrument or any of the Other Security Instruments. Lender
shall have the right to sell, and any court in which foreclosure proceedings may
be brought shall have the right to order a sale of the Property described in
this Instrument or the mortgaged property described in any of the Other Security
Instruments as a whole or in separate parcels, in any order that Lender may
designate. Borrower makes this waiver for itself, for all persons and entities
claiming through or under Borrower and for persons and entities who may acquire
a lien on all or any part of the Property described in this Instrument or in the
mortgaged property described in any of the Other Security Instruments, or on any
interest therein.
D. 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.
E. MORTGAGE EXPENSES. Should Lender (or "Servicer" as such term is
defined in the Reimbursement Agreement) pay any Mortgage Expenses (as
hereinafter defined), Borrower shall on demand immediately reimburse Lender (or
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 engaged
by Fannie Mae to service and administer the Mortgage Loans 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 advanced on behalf of Borrower by Fannie Mae to any Related
Trustee or Issuer.
F. CHARGES; LIENS. Uniform Covenant 4 of the Instrument ("Charges;
Liens") is amended to add the following provisions at the end thereof:
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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 Reimbursement Agreement 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 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 or (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.
G. 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
Reimbursement Agreement 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 Fannie Mae Credit Facility 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.
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H. 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.
I. ACCELERATION IN CASE OF BORROWER'S INSOLVENCY. Uniform covenant 18 of
the Instrument is amended to read as follows:
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.
J. NON-IMPAIRMENT. Except as supplemented and/or modified by this
Special Rider, all of the terms, covenants and conditions of the Other Security
Instruments and the other loan documents executed in connection therewith shall
remain in full force and effect.
K. MODIFICATION OF SINGLE ASSET REQUIREMENTS. Paragraph J of the Rider
is amended to read as follows:
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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
Reimbursement Agreement and that Borrower shall not violate the
provisions of subsections 2.3(a)(iii) or 2.3(a)(iv) of the
Reimbursement Agreement.
L. 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 each Related Bond Trustee pursuant to the Indentures, 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 in trust in accordance with the terms of
the Indentures.
M. 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
(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
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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
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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.
Signed, and BORROWER:
Delivered in the
Presence of: OTC APARTMENTS LIMITED PARTNERSHIP,
a Florida limited partnership
/s/ Lolly Avant By: AIMCO/OTC QRS, INC., a Delaware
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Lolly Avant Partner
/s/ F.M. DePrez
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F.M. DePrez
By: /s/ Harry Alcock (Seal)
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Harry Alcock
Vice President
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