AMENDMENT AND MODIFICATION
OF
PROMISSORY NOTE AND DEED OF TRUST
THIS AMENDMENT AND MODIFICATION OF PROMISSORY NOTE AND DEED OF
TRUST is made as of the 26th day of December, 1996, by and between TOWNSHIP AT
HIGHLANDS PARTNERS, LTD., a Texas limited partnership whose address is 1873
South Bellaire Street, 19th Floor, Denver, Colorado 80222 (sometimes referred to
as "Borrower" or "Grantor") and BANK UNITED, a federally chartered savings bank
formerly known; as Bank United of Texas FSB, whose address for notice is 3200
Southwest Freeway, Suite 1900, Houston, Texas 7702' (sometimes referred to as
"Lender" or "Beneficial").
RECITALS
A. Borrower is the maker of and the Borrower under that certain
Promissory Note payable to Lender dated April 8, 1996, in the original principal
amount of $9,250,000.00 (the "Note").
B. Borrower is the grantor under that certain Deed of Trust,
Assignment and Security Agreement for the benefit of Lender dated April 8, 1996,
and recorded April 10, 1996, under Reception No. A6043035 of the real estate
records of the Office of the Clerk and Recorder of Arapahoe County, Colorado
(the "Deed of Trust").
C. The Note was additionally secured by each of the Loan Documents
(as that term is defined in the Note), including but not limited to the
following:
l. Assignment of Rents and Leases executed by Borrower for the
benefit of Lender dated April 8, 1996, and recorded April 10, l996, under
Reception No. A6043036 of the real estate records of the Office of the Clerk and
Recorder of Arapahoe County, Colorado.
2. UCC-1 Financing Statement executed by Borrower for the
benefit of Lender recorded April 10, 1996, under Reception No. A6043037 of the
real estate records of the Office of the Clerk and Recorder of Arapahoe County,
Colorado.
3. Subordination Agreement executed by Borrower for the benefit
of Lender dated April 8, 1996, and recorded April 10, 1996, under Reception No,
A6043039 of the real estate records of the Office of the Clerk and Recorder of
Arapahoe County, Colorado.
4. Collateral Assignment of Declarant's Rights executed by
Borrower for the benefit of Lender dated April 8, 1996, and recorded April 10,
1996, under Reception No. A6043040 of the real estate records of the Office of
the Clerk and Recorder of Arapahoe County, Colorado.
Page 1 of 5 Pages
D. Borrower desires and Lender agrees to amend and modify the
Promissory Note and Deed of Trust on the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and covenants
herein contained and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, Borrower and Lender
agree as follows:
l. INTEREST RATE MODIFICATION. The second paragraph of the Note is
deleted in its entirety and replaced with the following:
In addition to the principal sum referred to in the first
paragraph of this Note, Borrower also agrees to pay interest on all
amounts so advanced and remaining from time to time unpaid hereon from
the date hereof until maturity at 180 basis points (1.80%) above the
30-day London Interbank Offered Rate ("LIBOR") as reflected on page
five of the Telerate screen or any other reputable quoting service
selected by Lender (the "Basic Rate"), such interest to be paid in
arrears, until default or acceleration as provided elsewhere in this
Note.
2. DEED OF TRUST MODIFICATION. Clause (a) of the first sentence of
Article II of the Deed of Trust is hereby deleted in its entirety and replaced
with the following:
(a) The payment of all amounts from time to time outstanding
under the promissory note from Grantor to Beneficiary dated April 8,
1996, in the original principal amount of $9,250,000.00, plus interest
thereon at 1.80% above the 30-day LIBOR as announced from time to
time, as mere specifically set forth in the promissory note (the
"Note), and any and all renewals, extensions for any period,
modifications, amendments, enlargements or rearrangements thereof;
and he remainder of that first sentence shall not be modified or deleted in any
respect.
3. NO OTHER MODIFICATIONS. Except as set forth in this Amendment,
all other provisions of the Note and Deed of Trust shall remain in full force
and effect. This Amendment shall not be deemed to discharge, modify or amend any
of the other Loan Documents.
4. TRANSFER OF INTEREST. Lender hereby consents to the merger of
Borrower's general partner, JWE Township at Highlands, L.L.C., a Delaware
limited liability company, with and into AIMCO Township at Highlands, L.P., a
Delaware limited partnership, whose general partner is AIMCO Holdings, L.P., a
Delaware limited partnership, whose general partner is AIMCO Holdings QRS, Inc.,
a Delaware corporation. This consent shall not be deemed a waiver of Lender's
right to require that Borrower obtain Lender's prior written consent to any
further Transfers, whether Transfers of the Property or any part thereof or
Transfers of Equity Interests in the Borrower, all as set forth in the Loan
Documents.
Page 2 of 5 Pages
5. MODIFICATION FEE: ATTORNEY'S FEES. Borrower shall pay to Lender a
modification fee pursuant to a separate agreement, and Borrower shall pay to
Lender its attorney's fees and all expenses incurred by Lender in connection
with the preparation of this first amendment, including all costs associated
with obtaining endorsements to the mortgagee's policy of title insurance issued
in connection with the Deed of Trust.
6. REPRESENTATION AND WARRANTIES. By execution hereof, Borrower
hereby reaffirms, ratifies and restates all representations and warranties
contained in the Loan Documents, including but not limited to the
representations and warranties set forth in Article IV of the Deed of Trust.
7. NO WAIVER. Lender's execution of this Amendment shall not
constitute a waiver (either express or implied) of the requirement that any
further modification of the Loan Documents shall squire the express written
approval of Lender,
8. NOTICES. All notices, requests, consents, demands and other
communications required or permitted hereunder or under any other Loan Document
shall be in writing and, unless otherwise specifically provided by applicable
law, including but not limited to C.R.S. $$ 38-38-101, ET SEQ., or in such other
Loan Document, shall be deemed given immediately upon personal delivery, or five
(5) days following deposit into the United States Mail marked registered or
certified mail, postage prepaid at the addresses specified above (unless changed
in accordance with law, including recordation, if necessary). Any such notice or
communication shall deemed effective either at the time of personal delivery or,
in the case of delivery, service or mail, as of the date of first attempted
delivery at the address and in the manner provided herein, or in the case of
telegram, telex or facsimile, upon receipt. Notwithstanding the foregoing, no
notice of change of address shall be effective except upon receipt. This
paragraph shall not be construed in any way to affect or impair any waiver of,
notice or demand provided in any Loan Document or to require giving of notice or
demand to or upon any person in any situation or for any reason.
9. NO DEFAULT. As of the present date, the Note, Deed of Trust and
Loan Documents am in full force and effect, there are no offsets in amounts due
and owing under the Note, there are no defenses to the enforcement of the Note,
Deed of Trust or any of the Loan Documents, there are no counterclaims, setoffs
or rights to assert a counterclaim or setoff against Lender, and there are no
violations of or defaults by or on the part of Lender under any of the terms of
the Note, Deed of Trust or any of the Loan Documents. Borrower has no knowledge
of any circumstances giving rise to any credit or offset against its obligation
to pay the Note or any installments under the Note or any amounts due and owing
under the Deed of Trust or any of the Loan Documents.
10. CONFLICT.
a. In the event of any conflict between the Note and Deed of
Trust and this Amendment, the terms and provisions of this Amendment shall
control.
Page 3 of 5 Pages
b. Except as modified by this Amendment, the terms and
provisions of the Note and Deed of Trust shall remain in full force and effect.
c. Any capitalized term not defined herein shall have the
meaning ascribed to it in the Note, Deed of Trust or the Loan Documents.
11. ENTIRE AGREEMENT. There are no secret agreements or
understandings between Borrower and Lender with respect to the Note where the
debt evidenced thereby or with respect to the Deed of Trust or the security
instruments. This Amendment represents the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, negotiations, promises and writings
with respect to the subject matter hereof.
IN WITNESS WHEREOF, Borrower and Lender have set their hands and seals
as of the day and year first above written.
BORROWER:
TOWNSHIP AT HIGHLANDS PARTNERS, LTD., a
Texas limited partnership
BY: AIMCO TOWNSHIP AT HIGHLANDS, L.P.,a Delaware
limited partnership, successor by merger to JWE
Township at Highlands, L.L.C., a Delaware limited
liability company, general partner
BY: AIMCO HOLDINGS, L.P., a Delaware limited
partnership, general partner
BY: AIMCO HOLDINGS QRS, INC.,
a Delaware corporation, general partner
BY: /s/ Harry Alcock
------------------------
Vice President
-------
Page 4 of 5 Pages
LENDER:
BANK UNITED, a federally chartered savings bank, f/k/a
Bank United of Texas FSB
BY: /s/ Illegible
-------------------------------------------
Managing Director
STATE OF Colorado )
-----------
)SS.
COUNTY OF Denver )
-----------
The above and foregoing instrument was acknowledged before me this 21
day of December, 1996, by Harry Alcock as Vice President of AIMCO Holdings, QRS,
Inc., a Delaware corporation, as general partner of AIMCO Holdings, L.P., a
Delaware limited partnership, as general partner of AIMCO Township at Highlands,
L.P., a Delaware limited partnership, successor by merger to JWE Township at
Highlands, L.L.C., a Delaware limited liability company, as general partner of
Township at Highlands Partners, Ltd., Texas limited partnership.
Witness my hand and official seal.
My commission expires: 2-13-00
-------------------------
/s/ Lori A. Dieckman
----------------------------------
Notary Public
STATE OF TEXAS )
) SS.
COUNTY OF HARRIS )
The above and foregoing instrument was acknowledged before me this
27th day of December, 1996, by Michael T. Davitt as Managing Director of Bank
United, a federally chartered savings bank.
Witness my hand and official seal.
My commission expires: 3/25/97
-------------------
/s/ Joyce Cranford
----------------------------------
Notary Public
[SEAL]
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