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 Deed of Trust, 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 Jefferson County, Colorado (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 in the Rider)
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:
Provided that Borrower is not in breach of any of its covenants,
obligations or agreements under this Instrument
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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 diminution in the value of the
Property since the date immediately preceding the condemnation.
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.
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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 S 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:
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
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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
if by messenger:
Fannie Mae
3939 Wisconsin Avenue, N.W.
Washington, D.C. 20016
Attn: Senior Vice President
Multifamily Activities
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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
0. Choice of Law; Consent to Jurisdiction. The provisions of Section 7.8
and Section 7.9 of the Reimbursement Agreement are hereby incorporated by
reference herein as fully set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Special Rider or
have caused the same to be executed by their respective representatives
thereunto duly authorized.
BORROWER:
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OTC APARTMENTS LIMITED PARTNERSHIP, a
Florida limited partnership
By: AIMCO/OTC QRS, INC., a Delaware
limited corporation, its sole
General Partner
By: /s/ Harry Alcock
--------------------------(Seal)
Harry Alcock
Vice President
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