SPACE ABOVE THIS LINE FOR RECORDER'S USE
- --------------------------------------------------------------------------------
This instrument was prepared by
and when recorded, mail to:
Allan R. Winn, Esq.
BALLARD SPAHR ANDREWS & INGERSOLL
555 13TH Street, N.W., Suite 900 East
Washington, D.C. 20004
MULTIFAMILY MORTGAGE,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS MORTGAGE (herein "Instrument") is made as of the 1st day of August
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, THE
BANK OF NEW YORK, as Trustee, a banking corporation organized and existing
under the laws of New York*, whose address is c/o GMAC Commercial Mortgage
Corporation, 650 Dresher Road, Horsham, PA 19044 (herein "Lender").
WHEREAS, Borrower is indebted to Lender in the principal sum of SIX
MILLION and NO/100 ($6,000,000.00) 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; (b) the payment of all other sums, with interest
thereon, advanced in accordance herewith to protect the security of this
Instrument; and (c ) the performance of the covenants and agreements of
Borrower herein contained, Borrower does hereby mortgage, grant, convey and
assign to Lender the following described property located in Pensacola,
Escambia County, State of Florida:
See EXHIBIT "A" attached hereto and incorporated herein
*Not in its individual or corporate capacity but solely as Trustee under an
Amended and Restated Trust Indenture dated as of August 1, 1996 with Escambia
County Housing Finance Authority.
THIS INSTRUMENT IN AMENDED AND SUPPLEMENTED IN CERTAIN RESPECTS AS SET
FORTH IN THE RIDER TO MULTIFAMILY INSTRUMENT (the "RIDER") AND THE
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 PROVISONS OF THE SPECIAL RIDER, THE
PROVISIONS OF THE SPECIAL RIDER SHALL GOVERN.
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 THE INSTRUMENT.
Return to:
Stewart Title of
Pensacola, Inc.
401 East Chase St., Suite 104
Pensacola, FL 32501
FLORIDA--Multifamily--1/77--FNMA/FHLMC
Uniform Instrument Form 4010 (page 1 of 8 pages)
Fannie Mae MBS/DUS Pool No.
This Instrument is subordinate in all respects to that certain (first)
Mortgage dated as of October 1, 1985 recorded in Official Records Book 2141
at Page 854 and currently held by The Bank of New York, as Trustee (as such
mortgage may have been, or may hereafter be, amended, modified, assigned
and/or assumed).
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 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 in unencumbered, and that 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 the 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, (d) 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 interest (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 amout 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 Borrower's breech of any covenant or agreement of Borrower in
this Instrument, Lender may apply, in any amout 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 policies 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 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
Uniform Covenants--Multifamily--1/77--FNMA/FHLMC
Uniform Instrument Form 4010 (page 3 of 8 pages)
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 and defend any action or proceeding 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 "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 of claim for damages,
direct or consequential, in connection with any 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
breech 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 ore 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 covenants of Borrower contained herein, shall not affect
the obligation of Borrower's successor 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 affected by applicable
law, shall not be a waiver of or preclude the exercise of any right or remedy.
The acceptance by Lender of 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.
Form 4010 (page 4 of 8 pages)
* 1996 (the "Reimbursement Agreement") are incorporated herein by this
reference as if fully set forth herein.
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 a 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 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 to 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, with 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.
SEE SPECIAL RIDER ATTACHED HERETO.
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, extent or terminate such existing
leases 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.
19. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER; ASSUMPTION.
SEE RIDER ATTACHED HERETO.
20. NOTICE.
SEE SPECIAL RIDER ATTACHED HERETO.
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 with limited variations by jurisdiction to constitute a
uniform security instrument covering real property and related fixtures and
personal property. This Instrument shall be governed by the laws 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
provision, and to this end the provision 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 is 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 from 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 portion 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 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 Borrower.
Borrower hereby covenants that Borrower has not executed any prior
assignment of said rents that remain 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 cost,
if any, of taking control of and managing the Property and collecting 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)
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 amount 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 under applicable law or 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 foreclosure 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, Sealed and Delivered OTC APARTMENTS LIMITED PARTNERSHIP, a
in the Presence of: Florida limited partnership
/s/ Stu By: AIMCO/OTC QRS, INC., a Delaware
- --------------------------------- corporation, its sole General Partner
/s/ Donna R. Gallup By: /s/ H. Alcock (SEAL)
- --------------------------------- ---------------------------------
Harry Alcock
Vice President
BORROWER'S ADDRESS:
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Form 4010 (page 7 of 8 pages)
ACKNOWLEDGMENT
STATE OF COLORADO )
) ss:
COUNTY OF ARAPAHOE )
The foregoing instrument was acknowledged before me this 16th day of
August 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 ____________as identification.
/s/ Donna R. Gallup
------------------------------------
Printed/Typed Name: Donna R. Gallup
-----------------
Notary Public
My Commission Expires: April 10, 2000
[NOTARY STAMP]
[SEAL OF COLORADO]
FLORIDA--Multifamily--1/77--FNMA/FHLMC
Uniform Instrument Form 4010 (page 8 of 8 pages)