WHEN RECORDED MAIL TO
After recording return to:
Lolly Avant
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Stewart National Title Services
1980 Post Oak, Suite 610
Houston, Texas 77056
SN#
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SPACE ABOVE THIS LINE FOR RECORDER'S USE
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MULTIFAMILY DEED OF TRUST,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS DEED OF TRUST (herein "Instrument") is made as of the 1st day of July
1996 among the Trustor/Grantor, OTC APARTMENTS LIMITED PARTNERSHIP, Federal
Internal Revenue Service Taxpayer Identification Number 94-3224702, whose
address is 1873 South Bellaire Street, 17th Floor, Denver, Colorado 80222
(herein "Borrower"), the Public Trustee of Jefferson County (herein "Trustee"),
and the Beneficiary, FEDERAL NATIONAL MORTGAGE ASSOCIATION ("Fannie Mae") a
corporation organized and existing under the laws of the United States whose
address is c/o GMAC COMMERCIAL MORTGAGE CORPORATION, 650 Dresher Road, Horsham,
Pennsylvania 19044 (herein "Lender").
This Instrument is granted for the benefit of Fannie Mae in connection with
that certain Master Reimbursement Agreement as of even date herewith between
Fannie Mae and Borrower(as the same may be modified, amended, restated or
otherwise supplemented form time to time, the "Reimbursement Agreement")
pursuant to which Fannie Mae has agreed to extend certain credit enhancement to
the Borrower pursuant to certain Related Fannie Mae Pass-Through Certificates
and in connection with certain mortgage loans made to Borrower by various
issuers. Notwithstanding the use of the term "Lender" in this Instrument, such
term shall not be construed to mean or imply that Fannie Mae is the originator
of such mortgage loans and the term "Lender" shall mean Fannie Mae as the
provider of such credit enhancement and its successors, assigns and transferees.
(Capitalized terms not otherwise defined in this Instrument the Rider or the
Special Rider shall have the meanings ascribed thereto in the Reimbursement
Agreement.
BORROWER, in consideration of the indebtedness herein recited and the trust
herein created, irrevocably grants, conveys and assigns to Trustee, in trust,
with power of sale, the following described property located in Westminster,
Jefferson County, State of Colorado:
SEE EXHIBIT "A" ATTACHED HERETO AND INCORPORATED HEREIN.
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 4006 (page 1 of 8 pages)
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
(subject however to the assignment of rents to Lender herein), 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".
TO SECURE TO LENDER (a) payment and performance by Borrower of each and
every obligation, covenant and agreement of the Borrower contained in the
Reimbursement Agreement, including, without limitation, all amounts due Lender
as reimbursement for amounts provided by Lender under the Reimbursement
Agreement, all as more particularly described in the Reimbursement Agreement [as
used in this Instrument the Rider or the Special Rider, the term "Note" shall
mean and refer to the Reimbursement Agreement]; (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 contained in this Instrument (collectively, the "Secured
Obligations"). The maturity date of the Secured Obligations is August 1, 2016.
Borrower covenants that Borrower is lawfully seised of the estate hereby
conveyed and has the right to grant, convey and assign the Property, that the
Property is 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 4006 (page 2 of 8 pages)
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1. PAYMENT FOR 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 OF 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, (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
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 sum 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 Borrower's 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 period 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 any damage
to the Property prior to such sale or acquisition.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. [Illegible]
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 4006 (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 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 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 subject, if this Instrument.
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 or 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 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 4006 (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 a 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 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, 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 therof 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. SEE SPECIAL RIDER
19. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER; ASSUMPTION.
SEE SPECIAL RIDER
20. NOTICE. SEE RIDER
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 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
Form 4006 (page 5 of 8 pages)
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 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 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 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 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.
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 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.
Form 4006 (page 6 of 8 pages)
Non-Uniform Covenants, Borrower and Lender further 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 invoke the power of
sale and 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 and costs of
documentary evidence, abstracts and title reports.
If Lender invokes the power of sale, Trustee shall give notice of sale in
the manner provided by the laws of Colorado to Borrower and to such other
persons as the laws of Colorado prescribe, and shall sell the Property according
to the laws of Colorado. Trustee may sell the Property at the time and place
and under the terms designated in the notice of sale in one or more parcels and
in such order as Trustee may determine. Trustee may postpone sale of all or any
parcel of the Property by public announcement at the time and place of any
previously scheduled sale. Lender or Lender's designee may purchase the
Property at any sale. Trustee shall deliver to the purchases Trustee's
certificate describing the Property and the time when the purchaser will be
entitled to Trustee's deed thereto. The recitals in Trustee's deed shall be
prima facie evidence of the truth of the statements made therein.
Trustee shall apply the proceeds of the sale in the following order: (a) to
all costs and expenses of the sale; including, but not limited to Trustee's and
attorney's fees and costs of title evidence; (b) to all sums secured by this
Instrument in such order as Lender, in Lender's sole discretion, directs; and
(c) the excess, if any, to the person or persons legally entitled thereto.
28. RELEASE. Upon payment of all sums secured by this Instrument, Lender shall
request Trustee to release this Instrument and shall produce for Trustee duly
cancelled all notes evidencing indebtedness secured by this Instrument. Trustee
shall release this Instrument without further inquiry or liability. Borrower
shall pay all costs of recordation, if any, and Borrower shall pay the statutory
Trustee's fees.
29. WAIVER OF HOMESTEAD. Borrower hereby waives all right of homestead
exemption in the Property.
IN WITNESS WHEREOF, Borrower has executed this Instrument or has caused the
same to be executed by its representatives thereunto duly authorized.
BORROWER:
OTC APARTMENTS LIMITED PARTNERSHIP, a
Florida limited partnership
By: AIMCO/OTC QRS, INC., a Delaware
corporation, its sole General Partner
By: /s/ Harry Alcock (SEAL)
---------------------
Harry Alcock
Vice President
BORROWER'S ADDRESS:
1873 Bellaire Street, 17th Floor
Denver, Colorado 80222
ACKNOWLEDGMENT
STATE OF FLORIDA )
) ss:
COUNTY OF HILLSBOROUGH )
The foregoing instrument was acknowledged before me this 28th day of June,
1996, Harry Alcock, Vice President of AIMCO/OTC QRS, INC., a Delaware
corporation, general partner on behalf of OTC APARTMENTS LIMITED PARTNERSHIP, a
Florida limited partnership.
WITNESS my hand and Official seal
/s/ Patricia C. Sheppard
-------------------------------
Printed/Typed Name:
-----------
Notary Public
My Commission expires: [SEAL] August 19, 1998
Form 4006 (page 7 of 8 pages)