When Recorded Return To:
Lolly Avant
Stewart Title Guaranty
1980 Post Oak Blvd, Ste. 610
Houston, Tx 77056
SN# 1002970013
Property: Copperfield
RECORDER'S MEMORANDUM
This memorandum has been posted on a piece
of paper which was posted or stapled over
printed matter on the original instrument at
the time the original instrument was filed.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
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MULTIFAMILY DEED OF TRUST,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
(Copperfield Apartments)
as of the
THIS DEED OF TRUST (herein "Instrument") is made this 18th day of April,
1997, among the Trustor/Grantor, COPPERFIELD PARTNERS, LTD., a Texas limited
partnership whose address is 1873 South Bellaire Street, 17th Floor, Denver,
Colorado 80222 (herein "Borrower") J. C. PAXTON (herein "Trustee"), and the
Beneficiary GMAC COMMERCIAL MORTGAGE CORPORATION a corporation organized and
existing under the laws of California, whose address is 650 Dresher Road,
P.O. Box 1015, Horsham, PA 19044-8015 (herein "Lender").
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
Houston, Harris County, State of Texas:
* DELETE BRACKETED MATERIAL IF NOT COMPLETED.
See EXHIBIT "A" attached hereto and incorporated herein.
This Instrument has been amended and supplemented in certain respects as set
forth in (i) Rider to Multifamily Instrument and (ii) Supplemental Rider to
Multifamily Instrument (collectively, the "Riders"), annexed hereto and
incorporated herein by this reference. In the event of any inconsistencies
between the printed portions of this Instrument and the provisions of the
Riders, the provisions of the Riders shall control.
(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 if 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 (or the leasehold estate in the event this
Instrument is on a leasehold) are herein referred to as the "Property".
TO SECURE TO LENDER (a) the repayment of the indebtedness evidenced by
Borrower's note dated as of even date herewith (herein "Note") in the
principal sum of Three Million Five Hundred Seventy-Seven Thousand and no/100
($3,577,000.00) Dollars, with interest thereon, with the balance of the
indebtedness, if not sooner paid, due and payable on May 1, 2017, and all
renewals, extensions and modifications thereof; hereof: (d) the payment of
all other sums, with interest thereon, advanced in accordance herewith to
protect the security of this Instrument: and (e) the performance of the
covenants and agreements of Borrower herein contained.
Borrower covenants that Borrower is lawfully seized of the estate hereby
conveyed and has the right to grant, convey and assign the Property (and, if
this Instrument is on a leasehold, that the ground lease is in full force and
effect without modification except as noted above and without default on the
part of either lessor or lessee thereunder), 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.
(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 on 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 principle 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,
and (e) if this Instrument is on a leasehold, the yearly fixed rents, if
any, under the ground lease, all as reasonably estimated initially and from
time to time by Lender on the bases of assessments and bills and reasonable
estimates thereof. 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 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 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 PAYEMENTS, 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) interest payable on any Future Advance, provided
that if more than one Future Advance is outstanding. Lender may apply
payments received among the amounts of interest payable on the Future
Advances in such order as Lender, in Lender's sole discretion, may determine:
(vii) principal of any Future Advance, provided that if more than one Future
Advance is outstanding. Lender may apply payments received among the
principal balances of the Future Advances in such order as Lender, in Lenders
sole discretion, may determine: and (viii) any other sums secured by this
Instrument in such order as Lender, at Lenders option, may determine;
provided, however, that Lender may, at Lenders option, apply any sums payable
pursuant to paragraph 8 hereof prior to interest on and principle 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 Lenders 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 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 materiel to
or in connection with the Property. Without Lenders 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 (and, if this Instruments is on a
leasehold, the ground lease) shall require 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 fifteen days prior to the expiration
date of the policy, Borrower shall delivery to Lender a renewal policy in
form satisfactory to Lender. If this Instrument is on a leasehold, Borrower
shall furnish Lender duplicate of all policies, renewal notices, renewal
policies and receipts of paid premiums if, by virtue of the ground lease, the
originals thereof may not be supplied by Borrower to Lender.
In the event of lose, 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 Lenders 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 Lenders 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 applications set forth in paragraph 3 hereof
(subject, however, to the rights of the lessor under the ground lease if this
Instrument is on a leasehold).
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 Lenders option, condition
disbursement of said proceeds on Lenders 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 or change the
amounts of such installments. 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 polices
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; LEASEHOLDS. 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
(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 of
powers of Lender. Neither Borrower nor any tenant or other person shall
remove, demolish or alter any improvement now existing of hereafter erected
on the Property of 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.
If this Instrument is on a leasehold, Borrower (i) shall comply with the
provisions of the ground lease, (ii) shall give immediate written notice to
Lender of any default by lessor under the ground lease or of any notice
received by Borrower from such lessor of any default under the ground lease
by Borrower, (iii) shall exercise any option to renew or extend the ground
lease and give written confirmation thereof to Lender within thirty days
after such option becomes exercisable, (iv) shall give immediate written
notice to Lender of the commencement of any remedial proceedings under the
ground lease by any party thereto and, if required by Lender, shall permit
Lender as Borrower's attorney-in-fact to control and act for Borrower in any
such remedial proceedings and (v) shall within thirty days after request by
Lender obtain from the lessor under the ground lease and deliver to Lender
the lessor's estoppel certificate required thereunder, if any. Borrower
hereby expressly transfers and assigns to Lender the benefit of all covenants
contained in the ground lease, whether or not such covenants run with the
land, but Lender shall have no liability with respect to such covenants nor
any other covenants contained in the ground lease.
Borrower shall not surrender the leasehold estate and interests herein
conveyed nor terminate or cancel the ground lease creating said estate and
interests, and Borrower shall not, without the express written consent of
Lender, alter or amend said ground lease. Borrower covenants and agrees that
there shall not be a merger of the ground lease, or of the leasehold estate
created thereby, with the fee estate covered by the ground lease by reason of
said leasehold estate or said fee estate, or any part of either, coming into
common ownership, unless Lender shall consent in writing to such merger, if
Borrower shall acquire such fee estate, then this Instrument shall
simultaneously and without further action be spread so as to become a lien on
such fee estate.
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 of 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 opinion may make such
appearances, disburse such sums and take such actions 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, and (iv) if this Instrument is on leasehold,
exercise of any option to renew or extend the ground lease on behalf of
Borrower and the curing of any default of Borrower in the terms and
conditions of the ground lease.
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 form 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. SEE ATTACHED RIDER TO MULTIFAMILY INSTRUMENT
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 is on a leasehold, to the rights of
lessor under the ground lease.
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 or change the amount of such installments. 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 action 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 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
excercising 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 paragraph 5 and 11 hereof operate to
cure or waive Borrower's default in payment of sums secured by this
Instrument.
(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
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 an 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. As used in this paragraph 16, the word "lease"
shall mean "sublease" if this Instrument is on a leasehold 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 so 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 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.
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. If Borrower shall
voluntarily file a petition under the Federal Bankruptcy Act, as such Act may
from time to time be amended, or under any similar or successor Federal
statute relating to bankruptcy, insolvency, arrangements or reorganizations,
or under any state bankruptcy or insolvency act, or file an answer in an
involuntary proceeding admitting insolvency or inability to pay debts, or if
Borrower shall fail to obtain a vacation or stay of involuntary proceedings
brought for the reorganization, dissolution or liquidation of Borrower, or if
Borrower shall be adjudged a bankrupt, or if a trustee or receiver shall be
appointed for Borrower or Borrower's property, or if the Property shall
become subject to the jurisdiction of a Federal bankruptcy court or similar
state court, or if Borrower shall make an assignment for the benefit of
Borrower's creditors, or if there is an attachment, execution or other
judicial seizure of any portion of Borrower's assets and such seizure is not
discharged within ten 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. SEE ATTACHED RIDER TO MULTIFAMILY INSTRUMENT
20. SEE ATTACHED RIDER TO MULTIFAMILY INSTRUMENT
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 law of the
jurisdiction in which the Property is located. In the event that any
provision of this Instrument of 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
(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 form 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 portions of the
indebtedness secured hereby are satisfied form the proceeds realized upon the
exercise of the remedies provided herein. Borrower, any party who consents
to this Instrument and any party who now 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.
25.
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 addition
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 an
maintaining full control of the Property in person, by agent or by
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 date 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 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 unity, 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 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 an
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 of 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 though 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 even such amounts shall bear interest at
the highest rat which may be collected form 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 rights
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.
(page 6 of 8 pages)
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 invoke the power
of sale and any other remedies permitted by applicable law or provided
herein, Borrower acknowledges that the power of sale herein granted may be
exercised by Lender without prior judicial hearing. Borrower has the right
to bring an action to assert the non-existence of a breach or any other
defense of Borrower to acceleration and sale. 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, Lender or Trustee shall give notice
of the time, place and terms of sale by posting written notice at least 21
days prior to the day of sale at the courthouse door in each of the counties
in which the Property is situated. Lender shall mail a copy of the notice of
sale to Borrower in the manner provided by applicable law. Trustee shall
sell the Property according to the laws of Texas. Such sale shall be made at
public vendue between the hours of 10 o'clock a.m. and 4 o'clock p.m. on the
first Tuesday in any month. Borrower authorizes Trustee to sell the Property
to the highest bidder for cash in one or more parcels and in such order as
Trustee may determine. Lender or Lender's designee may purchase the Property
at any sale.
Trustee shall deliver to the purchase Trustee's deed conveying the
Property so sold in fee simple with covenants of general warranty. Borrower
covenants and agrees to defend generally the purchaser's title to the
Property against all claims and demands. The recitals in Trustee's deed
shall be prima facie evidence of the truth of the statements contained
therein. Trustee shall apply the proceeds of the sale in the following
order: (a) to all reasonable costs and expenses of the sale, including, but
not limited to, reasonable Trustee's fees 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 the persons legally entitled thereto.
If the Property is sold pursuant to this paragraph 27, Borrower or any
person holding possession of the Property through Borrower shall immediately
surrender possession of the Property to the purchaser at such sale upon the
purchaser's written demand. If possession is not surrendered upon the
purchaser's written demand, Borrower or such person shall be a tenant at
sufferance and may be removed by writ of possession or by an action for
forcible entry and detainer.
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. SUBSTITUTE TRUSTEE. Lender at Lender's option, with or without cause,
may from time to time remove Trustee and appoint a successor trustee to any
Trustee appointed hereunder by an instrument recorded in the county in which
this Instrument is recorded. Without conveyance of the Property, the
successor trustee shall succeed to all the title, power and duties conferred
upon the Trustee herein and by applicable law.
30. SUBROGATION. Any of the proceeds of the Note utilized to take up
outstanding liens against all or nay part of the Property have been advanced
by Lender at Borrower's request and upon Borrower's representation that such
amounts are due and are secured by valid liens against the Property. Lender
shall be subrogated to any and all rights, superior titles, liens and
equities owned or claimed by any owner or holder of any outstanding liens and
debts, however remote, regardless of whether said liens or debts are acquired
by Lender, by assignment or are released by the holder thereof upon payment.
31. PARTIAL INVALIDITY. In the event any portion of the sums intended to be
secured by this Instrument cannot be lawfully secured hereby payments in
reduction of such sums shall be applied first to those portions not secure
hereby.
32.
33.
IN WITNESS WHEREOF, Borrower has executed this Instrument or has caused
the same to be executed by its representatives thereunto duly authorized.
WITNESS: COPPERFIELD PARTNERS, LTD., a Texas limited partnership
By: AIMCO COPPERFIELD, L.P., a Delaware limited
partnership, its General Partner
By: AIMCO HOLDINGS, L.P. , a Delaware limited
partnership, its General Partner
By: AIMCO HOLDINGS QRS, INC., a Delaware
corporation, its General Partner
/s/ Judith E. Mintz By: /s/ Harry Alcock
- -------------------- ---------------------------
Harry Alcock
Vice President
BORROWER'S ADDRESS:
1873 SOUTH BELLAIRE STREET, 17TH FLOOR
DENVER, COLORADO 80222
(page 7 of 8 pages)
ACKNOWLEDGMENT
DISTRICT OF COLUMBIA ) to-wit:
BEFORE ME, the undersigned, a Notary Public in and for the jurisdiction
aforesaid, this day personally appeared Harry Alcock, known to me to be the Vice
President of AIMCO HOLDINGS QRS, INC., the corporation that executed the
foregoing instrument, and known to me to be the person who executed the
foregoing instrument on behalf of said corporation, said corporation being known
to me to be general partner of AIMCO HOLDINGS, L.P., a limited partnership,
which limited partnership is general partner of AIMCO COPPERFIELD, L.P., a
limited partnership, and which limited partnership is general partner of
COPPERFIELD PARTNERS, LTD., the limited partnership that executed the foregoing
instrument, and acknowledged to me that such corporation executed the same as
such general partner and that such limited partnerships executed the same for
the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 18th day of April, 1997.
Isabelle Balakit Adams
--------------------------------
[SEAL] Notary Public in and for
the District of Columbia
My Commission Expires:
ISABELLE BALAKIT ADAMS
Notary Public, District of Columbia
- ---------------------- My Commission Expires May 14, 2000
RIDER TO MULTIFAMILY INSTRUMENT
(FOR USE WITH EXCEPTIONS TO NON-RECOURSE GUARANTY)
(Copperfield)
THIS RIDER TO MULTIFAMILY INSTRUMENT (the "Rider") is made as of the 18th day
of April 1997, and is incorporated into and shall be deemed to amend and
supplement the Multifamily Deed of Trust of the same date ( the "Instrument"),
given by the undersigned COPPERFIELD PARTNERS, LTD., a Texas limited
partnership, (the "Borrower"), to secure Borrower's Multifamily Note of the same
date (the "Note") with Addendum to Multifamily Note of the same date (the
"Addendum") to GMAC COMMERCIAL MORTGAGE CORPORATION, a Calfiornia corporation,
650 Dresher Road, P.O. Box 1015, Borsham, PA 19044-8015 (INSERT ADDRESS OF
LENDER)., and its successors, assigns and transferees (the "Lender"),
covering the property described in the Instrument and defined therein as the
"Property," located at:
8255 Sunbury Lane, Houston, Texas.
(Property Address)
The Property is located entirely within the State of Texas (INSERT THE
NAME OF STATE IN WHICH THE PROPERTY IS LOCATED) (the "Property
Jurisdiction".)
The term "Loan Documents" when used in this Rider shall mean,
collectively, the following documents: (i) the Instrument, as modified by
this Rider and any other riders to the Instrument given by Borrower to Lender
and covering the Property; (ii) the Note, as modified by the Addendum and any
other addendum to the Note; and (iii) all other documents or agreements,
including any Collateral Agreements (as defined below) or O&M Agreements
(as defined below), arising under, related to, or made in connection with,
the loan evidenced by the Note, as such Loan Documents may be amended from
time to time. Any conflict between the provisions of the Instrument and the
Rider shall be resolved in favor of the Rider.
The covenants and agreements of this Rider, and the covenants and
agreements of any other riders to the Instrument given by Borrower to Lender
and covering the Property, shall be incorporated into and shall amend and
supplement the covenants and agreements of the Instrument as if this Rider
and the other riders were a part of the Instrument and all references to the
Instrument in the Loan Documents shall mean the Instrument as so amended and
supplemented.
ADDITIONAL COVENANTS. In addition to the covenants and agreements made in
the Instrument, Borrower and Lender further covenant and agree as follows:
A. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES
Uniform Covenant 2 of the Instrument ("Funds for Taxes, Insurance and
Other Charges") is amended to change the title to "Funds for Taxes, Insurance
and Other Charges; Collateral Agreements." Existing Uniform Covenant 2 is
amended to become Uniform Covenant 2A. The following new Uniform Covenant 2B
is added at the end of Uniform Covenant 2A:
2B REPLACEMENT RESERVE AGREEMENT, COMPLETION/REPAIR AGREEMENT, ACHIEVEMENT
AGREEMENT AND OTHER COLLATERAL AGREEMENTS
(a) REPLACEMENT RESERVE AGREEMENTS
Borrower shall deposit with Lender the amounts required by the Replacement
Reserve and Security Agreement (the "Replacement Reserve Agreement") between
Borrower and Lender, dated the date of the Note, at the times required by the
Replacement Reserve Agreement, and shall perform all other obligations as and
when required pursuant to the Replacement Reserve Agreement.
(b) COMPLETION/REPAIR AGREEMENT
Borrower shall deposit with Lender the amount required by the
Completion/Repair and Security Agreement (the "Completion/Repair Agreement")
between Borrower and Lender (if any), dated the date of the Note, at the time
required by the Completion/Repair Agreement, and shall perform all other
obligations as and when required pursuant to the Completion/Repair
Agreement.
(c) ACHIEVEMENT AGREEMENT
Borrower shall perform all of its obligations as and when required
pursuant to the Achievement Agreement between Borrower and Lender (if any),
dated the date of the Note.
(d) COLLATERAL AGREEMENTS
As used herein, the term "Collateral Agreement" shall mean any of the
Replacement Reserve Agreement, the Completion/Repair Agreement, the
Achievement Agreement and any similar agreement which has been entered into
between Borrower and Lender in connection with the loan evidenced by the
Note.
B. APPLICATION OF PAYMENTS
Uniform Covenant 3 of the Instrument ("Application of Payments") is
amended to add the following sentence at the end thereof:
Notwithstanding the preceding sentence, (i) Lender shall be permitted to
apply any partial payment received from Borrower in any manner determined by
Lender and in any order of priorty of application as determined by Lender, in
Lender's sole discretion , and (ii) upon any breach of any covenant or
agreement of Borrower in the Instrument, the Note of any other Loan Document,
Lender shall be permitted to apply any funds held pursuant to
any Collateral Agreement in any manner which is permitted pursuant to such
Collateral Agreement and in any order of priorty of application as determined
by Lender, in Lender's sole discretion.
C. HAZARD INSURANCE; RESTORATION OF PROPERTY
Uniform Covenant 5 of the Instrument ("Hazard Insurance") is amended to
add the following sentence at the end thereof:
Lender shall not exercise Lender's'option to apply insurance proceeds to
the payment of the sums secured by the Instrument if all of the following
conditions are met: (i) Borrower is not in breach or default of any provision
of the Instrument, the Note 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; and (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 Note or (2) within one year of
the date of the loss or casualty to the Property.
D. ENVIRONMENTAL HAZARDS PROVISION
In addition to Borrower's convenants and agreements under Uniform Covenant
6 of the Instrument ("Preservation and Maintenance of Property;
Leaseholds"). Borrower further covenants and agrees that Borrower shall not:
(a) cause or permit the presence, use, generation, manufacture,
production, processing, installation, release, discharge, storage
(including aboveground and underground storage tanks for petroleum or
petroleum products), treatment, handling, or disposal of any Hazardous
Materials (as defined below) (excluding the safe and lawful use and
storage of quantities of Hazardous Materials customarily used in the
operation and maintenance of comparable multifamily properties or for
normal household purposes) on or under the Property, or in any way
affecting the Property or its value, or which may form the basis for
any present or future demand, claim or liability relating to
contamination, exposure, cleanup or other remediation of the Proerty
or;
(b) cause or permit the transportation to, from or across the Property
of any Hazardous Material (excluding the safe and lawful use and
storage of quantities of Hazardous Materials customarily used in the
operation and maintenance of comparable multifamily properties or for
normal household purposes); or
(c) permit, cause or exacerbate any occurrence or condition on the
Property that is or may be in violation of Hazardous Materials Law (as
defined below).
(The matters described in (a), (b) and (c) above are referred to collectively
below as "Prohibited Activities or Conditions.")
Except with respect to any matters which have been disclosed in writing by
Borrower to Lender prior to the date of the Instrument, or matters which have
been disclosed in an environmental hazard assessment report of the Property
received by Lender prior to the date of the Instrument, Borrower represents
and warrants that it has not at any time caused or permitted any Prohibited
Activities or Conditions and to the best of its knowledge, no Prohibited
Activities or Conditions exist or have existed on or under the Property.
Borrower shall take all appropriate steps (including but not limited to
appropriate lease provisions) to prevent its employees, agents, and
contractors, and all tenants and other occupants on the Property, from
causing, permitting or exacerbating any Prohibited Activities or Conditions.
Borrower shall not lease or allow the sublease of all or any portion of the
Property for non-residential use to any tenant or subtenant that, in the
ordinary course of its business, would cause, permit or exacerbate any
Prohibited Activities or Conditions, and all non-residential leases and
subleases shall provide that tenants and subtenants shall not cause, permit
or exacerbate any Prohibited Activities or Conditions.
If any Prohibited Activites or Conditions exist on the Property, Barrower
shall comply in a timely manners with, and cause all employees, agents, and
contractors of Borrower and any other persons present on the Property to so
comply with, (1) any program of operations and maintenance ("O&M Program")
relating to the Property that is acceptable to Lender with respect to one or
more Hazardous Materials (which O&M Program may be set forth in an agreement
of Borrower (an "O&M Agreement") and all their obligations set forth in any
O&M Agreement, (1) and (2) all Hazardous Materials Laws. Any O&M Program
shall be performed by qualified personnel. All costs and expenses of the O&M
Program shall be paid by Borrower, including without limitation Lender's fees
and costs incurred in connection with the monitoring and review of the O&M
Program and Borrower's performance thereunder. If Borrower fails to timely
commence or diligently continue and complete the O&M Program and comply with
any O&M Agreement, then Lender may, at Lender's option, declare all of the
sums secured by the Instrument to be immediately due and payable, and Lender
may invoke any remedies permitted by paragraph 27 of the Instrument. Without
limiting the foregoing, Borrower shall take prompt remedial action in the
event of the discovery of any Prohibited Activities or Conditions and obtain
Lender's prior written 2
Borrower represents that Borrower has not received, and has no knowledge
of the issuance of, any claim, citation or notice of any pending or
threatened suits, proceedings, orders, or governmental inquiries or opinions
involving the Property that allege the violation of any Hazardous Materials
Law ("Governmental Actions").
Borrower shall promptly notify Lender in writing of: (i) the occurence of
any Prohibited Activity or Condition on the Property; (ii) Borrower's actual
knowledge of the presence on or under any adjoining property of any Hazadous
Materials which can reasonably be expected to have a material adverse impact
on the Property or the value of the Property, discovery of any occurrence or
condition on the Property or any adjoining real property that could cause any
restrictions on the ownership, occupancy, transferaability or use of the
Property under Hazardous Materials
1 or other remedial action requested by Lender.
2 approval of any such remedial action.
Law. Borrower shall cooperate with any governmental inquiry, and shall
comply with any governmental or judicial order which arises from any alleged
Prohibited Activities or Conditions; (iii) any Governmental Action: and (iv)
any claim made or threatened by any third party against Borrower, Lender, or
the Property relating to loss or injury resulting from any Hazardous
Materials. Any such notice by Borrower shall not relieve Borrower of, or
result in a waiver of any obligation of Borrower under this paragraph D.
Borrower shall pay promptly the costs of any environmental audits, studies
or investigations (including but not limited to advice of legal counsel) and
the removal of any Hazardous Materials from the Property required by Lender
as a condition of its consent to any sale or transfer under paragraph 19 of
the Instrument of all or any part of the Property or any transfer occurring
upon a foreclosure or a deed in lieu of foreclosure or any interest therein,
or required by Lender following a reasonable determination by Lender that
there may be Prohibited Activities or Conditions on or under the Property.
Borrower authorizes Lender and its employees, agents and contractors to enter
onto the Property for the purpose of conducting such environmental audits,
studies and investigations. Any such costs and expenses incurred by Lender
(including but not limited to fees and expenses of attorney and consultants,
whether incurred in connection with any judicial or administrative process or
otherwise) which Borrower fails to pay promptly shall become immediately due
and payable and shall become additional indebtedness secured by the
Instrument pursuant to Uniform Covenant 8 of the Instument.
Borrower shall hold harmless, defend and indemnify Lender and its
officers, directors, trustees, employees, and agents from and against all
proceedings (including but not limited to Government Actions), claims,
damages, penalties, costs and expenses (including without limitation fees and
expenses of attorneys and expert witnesses, investigatory fees, and cleanup
and remediation expenses, whether or not incurred within the context of the
judicial process), arising directly or indirectly from (i) any breach of any
representation, warranty, or obligation of Borrower contained in ths
paragraph D or (ii) the presence or alleged presence of Hazardous Materials
on or under the Property.
The term "Hazardous Materials," for purposes of this paragraph D,
includes petroleum and petroleum products, flammable explosives, radioactive
materials (excluding radioactive materials in smoke detectors),
polychlorinated biphenyls, lead, asbestos in any form that is or could become
friable, hazardous waste, toxic or hazardous substances including, but not
limited to, those materials defined as "hazardous substances," "extremely
hazardous substances," "hazardous chemicals," "hazardous materials," "toxic
substances," "solid waste," "toxic chemicals," "air pollutants," "toxic
pollutants," "hazardous wastes," "extremely hazardous waste," or "restricted
hazardous waste" by Hazardous Materials Law or regulated by Hazardous
Materials Law in any manner whatsoever.
The term "Hazardous Material Laws," for the purposes of this paragraph D,
means all federal, state, and local laws, ordinances and regulations and
standards, rules, policies and other binding governmental requirements and
any court judgments applicable to Borrower or the the Property relating to
industrial hygiene or to environmental or unsafe conditions or to human
health including, but not limited to, those relating to the generation,
manufacture, storage, handling, transportation, disposal, release, emission or
discharge of Hazardous Materials, those in connection with the construction,
fuel supply, power generation and transmission, waste disposal or any other
operations or processes relating to the Property, and those relating to the
atmosphere, soil, surface and ground water, wetlands, stream sediments and
vegetation on, under, in or about Property.
The representations, warranties, covenants, agreements, indemnities and
undertakings of Borrower contained in this paragraph D shall be in addition
to any and all other obligations and liabilities that Borrower may have to
Lender under applicable law.
The representations, warranties, covenants, agreements, indemnities and
undertakings of Borrower contained in this paragraph D shall continue and
survive nothwithstanding the satisfaction, discharge, release, assignment,
termination, subordination or cancellation of the Instrument or the payment
in full of the princpal of and interest on the Note and all other sums payable
under the Loan Documents or the foreclosure of the Instrument or the tender
or delivery of a deed in lieu of forecloseure or the release of any portion
of the Property from the lien of the Instrument, except with respect to any
Prohibited Activities or Conditions or violation of any of the Hazardous
Material Laws which first commences and occurs after the satisfaction,
discharge, release, assignment, termination or cancellation of the Instrument
following the payment in full of the principal of and interest on the Note
and all other sums payable under the Loan Documents or which first commences
or occurs after the actual dispossession from the entire Property of the
Borrower and all entities which control, are controlled by, or are under
common control with the Borrower (each of the foregoing persons or entities
is hereinafter referred to as a "Responsible Party") following foreclosure of
the Instrument or acquistion of the Property by a deed in lieu of
foreclosure. Nothing in the foregoing sentence shall relieve the Borrower
from any liability with respect to any Prohibited Activities or Conditions or
violation of Hazardous Materials Laws where such Prohibited Activies or
Conditions or violation of Hazardous Materials Laws commences or occurs, or
is present as a result of, any act or omission by any Responsible Party or by
any person or entity acting on behalf of a Responsible Party.
E. BOOKS, RECORDS AND FINANCIAL INFORMATION
Uniform Covenant 10 of the Instrument ("Books of Records") is amended to
read as follows:
Borrower shall keep and maintain at all times and upon Lender's request,
Borrower shall make available at the Property address, complete and accurate
books of accounts and records in sufficient detail to correctly reflect the
results of the operation of the Property and copies of all written contracts,
leases and other instruments which affect the Property (including but not
limited to all bills, invoices and contracts for electrical services, gas
service, water and
Form 4058 6/93 (page 3 of 8 pages)
water and sewer service, waste management service, telephone service and
management services). These books, records, contracts, leases and other
instruments shall be subject to examination and inspection at any reasonable
time by Lender. Borrower shall furnish to Lender the following: promptly
upon Borrower's reciept, copies of any complaint filed against the Borrower
or the Property management alleging any violation of fair housing law,
handicap access or the Americans with Disabilities Act and any final
administrative or judicial dispoistions of such complaints. If Borrower shall
fail to timely provide the financial statements required by clause (i) above,
Lender shall have the right to have the Borrower's books and records audited
in order to obtain such financial statements, and any such costs and expenses
incurred by Lender which Borrower fails to pay promptly shall become
immediately due and payable and shall become additional indebtedness secured
by the Instrument pursuant to paragraph 8 of the Instrument.
*SEE ATTACHED SUPPLEMENTAL RIDER TO MULTIFAMILY INSTRUMENT.
F. TRANSFERS OF THE PROPERTY OR SIGNIFICANT INTEREST IN BORROWER; TRANSFER FEES
Uniform Covenant 19 of the Instrument ("Transfers of the Property or
Beneficial Interests in Borrower, Assumption") is amended to read as set
forth below:
TRANSFERS OF THE PROPERTY OR SIGNIFICANT INTEREST IN BORROWER; TRANSFER FEES
(a) DEFINITIONS
For purposes of the Instrument (and the Rider), the following terms have
the respective meanings set forth below:
(1) The term "Key Principal" means the entities who execute(s) the
Exceptions to Non-Recourse Guaranty to Lender dated as of the date
of the Note and any persons who subsequently execute an Exceptions
to Non-Recourse Guaranty to Lender in connection with the Note.
** or entities
(2) The term "Transfer" means a sale, assignment, transfer substitution
or other disposition (whether voluntary or by operation of law) of,
or the granting or creating of a lien, encumbrance or security
interest in, the Property or in ownership interests, and the
issuance or other creation of ownership interests in an entity and
the reconstitution of one type of entity to another type of entity.
(3) A "Significant Interest" in any entity shall mean the following:
(i) if the entity is a general partnership or a joint venture, (A)
any partnership interest in the general partnership, or (B) any
interest of a joint venturer in a joint venture;
(ii) if the entity is a limited partnership, (A) any limited
partnership interest in the entity which together with all
other limited partnership interests in the entity Transferred
since the date of the Note, exceeds 49% of all of the limited
partnership interests in the entity, or (B) any general
partnership interest in the entity.
(iii) if the entity is a limited liability company, (A) any
membership interest which, together with all other membership
interests in the limited liability company Transferred since
the date of the Note, exceeds 49% of all of the membership
interests in the limited liability company; ***
(iv) if the entity is a corporation, any voting stock in the
corporation which, together with all other voting stock of the
corporation transferred since the date of the Note, exceeds 49%
of all of the voting stock of the corporation; or
(v) if the entity is a trust, any beneficial interest in such
trust which, together with all other beneficial interests in
the trust Transferred since the date of the Note, exceeds 49%
of all of the beneficial interest in the trust.
SEE ATTACHED SUPPLEMENTAL RIDER TO MULTIFAMILY INSTRUMENT.
(b) ACCELERATION OF THE LOAN UPON TRANSFERS OF THE PROPERTY OR SIGNIFICANT
INTERESTS
Lender may, at Lender's option, declare all sums secured by the
Instrument immediately due and payable and Lender may invoke any remedies
permitted by paragraph 27 of the Instrument if, without the Lender's prior
written consent, any of the following shall occur:
(1) a Transfer of all or any part of the Property or any interest in
the Property;
(2) a Transfer of any Significant Interest in Borrower;
(3) a Transfer of any Significant Interest in a corporation,
partnership, limited liability company, joint venture, or trust
which owns a Significant Interest in the Borrower;
(4) if the Borrower is a trust, or if any trust owns a Significant
Interest in the Borrower, the addition, deletion or substitution
of a trustee of such trust, which addition, deletion or
substitution has not been approved by Lender; or
(B) any manager in the entity;
Form 4058 6/93 (page 4 of 8 pages)
(5) a Transfer of all or any part of any Key Principal's ownership
interest (other than limited partnership interests) in the
Borrower, or in any other entity which owns, directly or
indirectly, through one or more intermediate entities, and
ownership interest in the Borrower.
SEE ATTACHED SUPPLEMENTAL RIDER TO MULTIFAMILY INSTRUMENT.
(c) TRANSFERS PERMITTED WITH LENDER'S PRIOR CONSENT
LENDER SHALL CONSENT TO A TRANSFER WHICH WOULD OTHERWISE VIOLATE THIS PARAGRAPH
19 IF, PRIOR TO THE TRANSFER:
(1) Borrower causes to be submitted to Lender all information required
by Lender to evaluate the transferee and the Property as if a new
loan were being made to the transferee and secured by the Property,
in the case of a Transfer of all or any part of the Property or an
interest therein, or to the Borrower (as reconstituted after the
proposed Transfer), in the case of a Transfer of Significant
Interests;
(2) The transferee, in the case of a Transfer of all or any part of the
Property or an interest therein, or the Borrower ( as reconstituted
after the proposed Transfer), in the case of a Transfer of
Significant Interests, meet the eligiblity, credit, management and
other standards, and the Property meets the physical maintenance
and replacement reserve requirements, customarily applied by
Lender for approval of new borrowers and properties for loans
secured by liens on multifamily properties;
(3) In the case of a Tranfer of all or any part of the Property, the
proposed transferee (i) executes an agreement acceptable to Lender
pursuant to which the proposed transferee agrees, upon consummation
of the Transfer, to assume and to pay and perform all obligations
of the Borrower under the Note, the Instrument and the other Loan
Documents, (ii) causes one or more individuals acceptable to
Lender to execute and deliver to Lender an Exceptions to
Non-Recourse Guaranty, and (iii) executes such documents and
otherwise provides such documents and information as required by
Lender in connection with the Transfer;
(4) In the case of a Transfer of a Key Principal's ownership interest
pursuant to paragraph 19(b)(5), (i) the Borrower (as reconstituted
after the proposed Transfer) executes an agreement acceptable to
Lender that ratifies and confirms the obligations of Borrower under
the Note, the Instrument and the other Loan Documents, (ii) one or
more individuals acceptable to Lender execute and deliver to Lender
an Exceptions to Non-Recourse Guaranty, and (iii) the Borrower
executes such documents and otherwise provides such documents and
information as required by Lender in connection with the
assumption, to the extent such expenses exceed $3000.
(d) NO ACCELERATION OF THE LOAN FOR TRANSFERS CAUSED BY CERTAIN EVENTS
Notwithstanding the foregoing provisions of this covenant, Lender shall
not be entitled to declare sums secured by the Instrument immediately due and
payable or to invoke any remedy permitted by paragraph 27 of the Instrument
solely upon the occurrence of any of the following:
(1) A Transfer that occurs by inheritance, devise, or bequest or by
operation of law upon the death of a natural person who is an owner
of the Property or the owner of a direct or indirect ownership
interest in the Borrower.
(2) The grant of a leasehold interest in individual dwelling units for
a term of two years or less and leases for commercial uses as long
as commercial leases do not exceed 20 percent of the rentable space
of the Property (measured as required by Lender) and provided that
all such leasehold interests do not contain an option to purchase
the property.
(3) A sale or other disposition of obsolete or worn out personal
property which is contemporaneously replace by comparable personal
property of equal or greater value which is free and clear of
liens, encumbrances and security interest other than those created
by the Loan Documents.
(4) The creation of a mechanic's or materialmen's lien or judgement
lien against the Property which is released of record or otherwise
remedied to Lender's satisfaction, within 30 days of the date of
creation.
(5) The grant of an easement, if prior to the granting of the easement
the Borrower causes to be submitted to Lender all information
required by Lender to evaluate the easement, and if Lender
determines that the easement will not materially affect the
operation of the Property or Lender's interest in the Property and
Borrower pays to Lender, on demand, all costs and expenses
incurred by Lender in connection with reviewing Borrower's request.
(e) OTHER PROVISIONS REGARDING TRANSFERS. SEE ATTACHED SUPPLEMENTAL RIDER TO
MULITFAMILY INSTRUMENT.
G. NOTICE
Uniform Covenant 20 of the Instrument ("Notice") is amended to read as
follows:
Each notice, demand, consent, or other approval (collectively, "notices"
and singly, "notice") given under the Note, the Instrument, and any other
Loan Document, shall be in writing to the other party, and if to Borrower,
at its address set forth below Borrower's signature on the Instrument, and
if to Lender at its address set forth at the beginning of the Rider, or at
such other address as such party may designate by notice to the other party
and shall be deemed given (a) three (3) Business Days after mailing, by
certified or registered U.S. mail, return receipt requested,
Form 4058 6/93 (PAGE 5 OF 8 PAGES)
postage prepaid, (b) one (1) Business Day after delivery, fee prepaid, to a
national overnight delivery service, or (c) when delivered, if personally
delivered with proof of delivery thereof.
Borrower and Lender each agrees that it will not refuse or reject delivery
of any notice given hereunder, that it will acknowledge, in writing, the
receipt of the same upon request by the other party and that any notice
rejected or refused by it shall be deemed for all purposes of this Agreement
to have been received by the rejecting party on the date so refused or
rejected, as conclusively established by the records of the U.S. Postal
Service or the courier service. As used in the Instrument, the term
"Business Day" means any day other than a Saturday, a Sunday or any other day
on which Lender is not open for business.
Lender shall not be required to deliver notice to Key Principal in
connection with any notice given to Borrower. However, if Lender shall
deliver notice to Key Principal, such notice shall be given in the manner
provided in this Uniform Covenant 20, at Key Principal's address set forth at
the foot of the Rider.
H. GOVERNING LAW
In Addition to the governing law provision of Uniform Covenant 22 of the
Instrument ("Uniform Multifamily Instrument; Governing Law; Severability"),
the Borrower and Lender covenant and agree as follows:
(a) CHOICE OF LAW
The validity of the Instrument and the other Loan Documents, each of their
terms and provisions, and the rights and obligations of Borrower under the
Instrument and the other Loan Documents, shall be governed by, interpreted,
construed, and enforced pursuant to and in accordance with the laws of the
Property Jurisdiction.
(b) CONSENT TO JURISDICTION
Borrower consents to the exclusive jurisdiction of any and all state and
federal courts with jurisdiction in the Property Jurisdiction over Borrower
and the Borrower's assets. Borrower agrees that such assets shall be used
first to satisfy all claims of creditors organized or domiciled in the United
States of America ("USA") and that no assets of the Borrower in the USA shall
be considered part of any foreign bankruptcy estate.
Borrower agrees that any controversy arising under or in relation to the
Note, the Instrument or any of the other Loan Documents shall be litigated
exclusively in the Property Jurisdiction. The estate and federal courts and
authorities with jurisdiction in the Property Jurisdiction shall have
exclusive jurisdiction over all controversies which may arise under or in
relation to the Note, and any security for the debt evidenced by the Note,
including without limitation those controversies relating to the execution,
interpretation, breach, enforcement, or compliance with the Note, the
Instrument, or any other issue arising under, related to, or in connection
with any of the Loan Documents. Borrower irrevocably consents to service,
jurisdiction, and venue of such courts for any litigation arising from the
Note, the Instrument or any of the other Loan Documents, and waives any other
venue to which it might be entitled by virtue of domicile, habitual residence
or otherwise.
I. ACCELERATION; REMEDIES
Covenant 27 of the Instrument ("Acceleration; Remedies") is amended to add
the following at the end of the first paragraph:
Upon the breach of any covenant or agreement by Borrower in the
Instrument, (including, but not limited to, the covenants to pay when due
sums secured by the Instrument) or any other Loan Document, Lender, at
Lender's option may, in addition to any remedies specified in this covenant,
invoke any other remedies provided in any Collateral Agreement.
If Borrower is in default under any promissory note (other than the Note)
evidencing a loan (the "Subordinate Loan") secured by a security instrument
(other than the Instrument) covering all or any portion of the Property (the
"Subordinate Instrument") or under any Subordinate Instrument or other loan
document executed in connection with the Subordinate Loan, (and whether or
not the Borrower has obtained the prior approval of the Lender to the
placement of such Subordinate Instrument on the Property) which defaults
remains uncured after any applicable cure period, Borrower also then will be
in default under the Note and the Instrument. In that event, the entire
unpaid principal balance of the Note, accrued interest and any other sums due
Lender secured by the Instrument then will become due and payable, at
Lender's option. If Lender exercises this option to accelerate, Lender will
do so in accordance with the provisions of the Note and the Instrument, and
the Lender may invoke any and all remedies permitted by applicable law, the
Note, the Instrument, or any of the other Loan Documents.
J. SINGLE ASSET BORROWER
Until the debt evidenced by the Note is paid in full, Borrower shall not
(1) acquire any real or personal property other than the Property and assets
(such as accounts) related to the operation and maintenance of the Property,
or (2) operate any business other than the management and operation of the
Property.
K. NON-RECOURSE LIABILITY
Subject to the provisions of paragraph L, and notwithstanding any other
provisions in the Note or Instrument, the personal liability of Borrower, and
general partner of Borrower (if Borrower is a partnership), and any Key
Principal to pay the principal of and interest on the debt evidenced by the
Note and any other agreement evidencing Borrower's obligations under the Note
and the Instrument shall be limited to (1) the real and personal property
described as the "Property" in the Instrument, (2) the personal property
described in and pledged under any
Form 4058 6/93 (page 6 of 8 pages)
Collateral Agreement executed in connection with the loan evidenced by the
Note, (3) the rents, profits, issues, products and income of the Property
received or collected by or on behalf of Borrower (the "Rents and Profits")
to the extent such receipts are necessary, first. To pay the reasonable
expenses of operating, managing, maintaining and repairing the Property,
including but not limited to real estate taxes, utilities, assessments,
insurance premiums, repairs, replacements and ground rents, if any (the
"Operating Expenses") then due and payable as of the time of receipt of such
Rents and Profits, and then, to pay the principal and interest due under the
Note, and any other sums due under the Instruments or any other Loan Document
(including but not limiting to deposits or reserves due under any Collateral
Agreement), except to the extent that Borrower did not have the legal right,
because of a bankruptcy, receivership or similar judicial proceeding, to
direct the disbursement of such sums.
Except as provided in paragraph L, Lender shall not seek (a) any judgment
for a deficiency against Borrower, any general partner of borrower (if
Borrower is a partnership) of any Key Principal, or Borrower's or any such
general partner's or Key Principal's heirs, legal representatives, successors
or assigns, in any action to enforce any right of remedy under the
Instrument, or (b) any judgment on the Note except as may be necessary in any
action brought under the Instrument to enforce the lien against the Property
or to exercise any remedies under any Collateral Agreement.
L. EXCEPTIONS TO NON-RECOURSE LIABILITY
If, without obtaining Lender's prior written consent, (i) a Transfer shall
occur which, pursuant to Uniform Covenant 19 of the Instrument, gives Lender
the right, at its option, to declare all secured by the Instrument
immediately due and payable, (ii) Borrower shall encumber the Property with
the lien of any Subordinate Instrument in connection with any financing by
borrower, or (iii) Borrower shall violate the single asset covenant in
paragraph J of the Rider, any of such events shall constitute a default by
Borrower under the Note, the Instrument and the other Loan Documents and if
such events shall continue for 30 days, paragraph K shall not apply from and
after the date which is 30 days after such event and the Borrower, any
general partner of borrower (if Borrower is a partnership) and Key Principal
(each individually on a joint and several basis if more than one shall be
personally liable on a joint and several basis for full
recourse liability under the Note and the other Loan Documents.
Notwithstanding paragraph K, Borrower, any general partner of Borrower (if
Borrower is a partnership) and Key Principal (each individually on a joint
and several basis if more than one), shall be personally liable on a joint
and several basis, in the amount of any loss, damage or cost (including but
not limited to attorney's fees) resulting from (A) fraud or material
misrepresentation by Borrower or borrower's agents or employees or any Key
Principal or general partner of Borrower in connection with obtaining the
loan evidenced by the Note, or in complying with any of Borrower's
obligations under the Loan Documents, (B) insurance proceeds, condemnation
awards, security deposits from tenants and other sums or payments received by
or on behalf of Borrower in its capacity as owner of the Property and not
applied in accordance with the provisions of the Instrument (except to the
extent that Borrower did not have the legal right, because of a bankruptcy,
receivership or similar judicial proceeding, to direct disbursement of such
sums or payments), (C) all Rents and Profits (except to the extent that
Borrower did not have the legal right, because of a bankruptcy, receivership
or similar judicial proceeding, to direct the disbursement of such sums), and
not applied, first, to the payment of the reasonable Operating Expenses as
such Operating Expenses become due and payable, and then, to the payment of
principal and interest then due and payable under the Note and all other sums
due under the Instrument and all other Loan Documents (including but not
limited to deposits or reserves payable under any Collateral Agreement), (D)
Borrower's failure to pay transfer fees and charges due under paragraph 19(c)
of the Instrument, (E) Borrower's failure following a default under any of
the Loan Documents to deliver to Lender on demand all Rents and Profits, and
security deposits (except to the extent that Borrower did not have the legal
right because of a bankruptcy, receivership or similar judicial proceeding to
direct disbursement of such sums), books and records relating to the
Property, (F) or relating to Hazardous Materials or compliance*
No provision of paragraphs K or L shall (i) affect any guaranty or similar
agreement executed in connection with the debt evidenced by the Note, (ii)
release or reduce the debt evidenced by the Note, (iii) impair the right of
Lender to enforce the provisions of paragraph D of the Rider, (iv) impair the
lien of the Instrument or (v) impair the right of Lender to enforce the
provisions of any Collateral Agreement.
M. WAIVER OF JURY TRIAL
Borrower and Key Principal (each for himself if more than one) (i)
covenant and agree not to elect a trial by jury with respect to any issue
arising under any of the Loan Documents triable by a jury and (ii) waive any
right to trial by jury to the extent that any such right shall now or
hereafter exist. This waiver of right to trial by jury is separately given,
knowingly and voluntarily with the benefit of competent legal counsel by the
Borrower and Key Principal, and this waiver is intended to encompass
individually each instance and each issue as to which the right to a jury
trial would otherwise accrue. Further, Borrower, and Key Principal hereby
certify that no representative or agent of the Lender (including, but not
limited to, the Lender's counsel) has represented, expressly or otherwise, to
Borrower or Key Principal that Lender will not seek to enforce the provisions
of this Paragraph M.
* with Hazardous Materials Laws to the full extent of any losses or damages
(including those resulting from diminution in value of the Property)
incurred by Lender as a result of the existence of such Hazardous Materials
or failure to comply with Hazardous Materials Laws or the obligations of
Borrower hereunder relating thereto, (G) intentional damage to the Property
or (H) failure of Borrower to pay taxes or other liens with priority over
the Multifamily Instrument.
Form 4058 6/93 (page 7 of 8 pages)
BY SIGNING BELOW, BORROWER ACCEPTS AND AGREES TO THE COVENANTS AND AGREEMENTS
CONTAINED IN THIS RIDER.
WITNESS: COPPERFIELD PARTNERS, LTD., a Texas limited partnership
By: AIMCO COPPERFIELD, L.P., a Delaware limited
partnership, its General Partner
By: AIMCO HOLDINGS, L.P., a Delaware limited
Partnership, its General Partner
By: AIMCO HOLDINGS QRS, L.P., a Delaware
Corporation, its General Partner
/s/ Judith Z. Mintz By: /s/ Harry Alcock
- ---------------------- -----------------------
Harry Alcock
Vice President
THE WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
Form 4058 6/93 (page 8 of 8 pages)
ACKNOWLEDGMENT
DISTRICT OF COLUMBIA ) to-wit:
BEFORE ME, the undersigned, a Notary Public in and for the jurisdiction
aforesaid, this day personally appeared Harry Alcock, known to me to be the
Vice President of AIMCO HOLDINGS QRS, INC., the corporation that executed the
foregoing instrument, and known to me to be the person who executed the
foregoing instrument on behalf of said corporation, said corporation being
known to me to be general partner of AIMCO HOLDINGS, L.P., a limited
partnership, which limited partnership is general partner of AIMCO
COPPERFIELD, L.P., a limited partnership, and which limited partnership is
general partner of COPPERFIELD PARTNERS, LTD., the limited partnership that
executed the foregoing instrument, and acknowledged to me that such
corporation executed the same as such general partner and that such limited
partnerships executed the same for the purposes and consideration therein
expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 18th day of April, 1997.
/s/ Isabelle Balakit Adams
----------------------------------------
Notary Public in and for
the District of Columbia
[SEAL]
My Commission Expires:
ISABELLE BALAKIT ADAMS
Notary Public, District of Columbia
My Commision Expires May 14, 2000
SUPPLEMENTAL RIDER TO MULTIFAMILY INSTRUMENT
(Copperfield)
THIS SUPPLEMENTAL RIDER TO MULTIFAMILY INSTRUMENT (the "Supplemental
Rider") is made as of this 18th day of April, 1997, and is incorporated into and
shall be deemed to amend and supplement the Multifamily Mortgage, Deed of Trust
or Deed to Secure Debt as of the same date (the "Instrument") as modified by the
Rider to Multifamily Instrument dated as of the same date (the "Rider"), given
by the undersigned (the "Borrower"), to secure Borrower's Multifamily Note
as of the same date (the "Note") with Addendum to Multifamily Note as of the
same date to GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation,
whose address is 650 Dresher Road, P.O. Box 1015, Horsham, Pennsylvania 19044-
8015 and its successors, assigns and transferees (the "Lender"), covering the
property described in the Instrument and defined therein as the "Property"
located at:
8255 SUNBURY LANE, HOUSTON, TEXAS
[Property Address]
The Property is located entirely within the State of TEXAS
[Insert name of state in which Property is located] (the "Property
Jurisdiction").
The term "Loan Documents" when used in this Supplemental Rider shall mean,
collectively, the following documents: (i) the Instrument as modified by the
Rider, this Supplemental Rider and any other riders to the Instrument given by
Borrower to Lender and covering the Property; (ii) the Note, as modified by the
Addendum and any other addendum to the Note; and (iii) all other documents or
agreements, including any Collateral Agreements (as defined in the Rider),
or O&M Agreements (as defined in the Rider), arising under, related to, or made
in connection with, the loan evidenced by the Note, as such loan documents may
be amended from time to time. Any conflict between the provisions of this
Instrument, the Rider and the Supplemental Rider shall be resolved in favor of
the Supplemental Rider.
The covenants and agreements of this Supplemental Rider, and the
covenants and agreements of any other riders to the Instrument given by Borrower
to Lender and covering the Property, shall be incorporated into and shall amend
and supplement the covenants and agreements of the Instrument as if this
Supplemental Rider and the other riders were a part of the Instrument and all
reference to the Instrument in the Loan Documents shall mean the Instrument as
so amended and supplemented.
ADDITIONAL COVENANTS. In addition to the covenants and agreements made
in the Instrument and the Rider, Borrower and Lender further covenant and
agree as followss:
A. [INTENTIONALLY DELETED]
B. [INTENTIONALLY DELETED]
C. [INTENTIONALLY DELETED]
D. [INTENTIONALLY DELETED]
E. [INTENTIONALLY DELETED]
F. Lockbox.
(i) Not later than thirty (30) days after the end of each
fiscal quarter of the Borrower (including the fourth fiscal quarter in each
year), Borrower shall deliver to Lender a statement of the Gross Revenues,
Operating Expenses and Net Operating Income for the preceding fiscal quarter
and for the preceding four fiscal quarters for each Property and each
Additional Property. Each such statement shall be in form and substance
reasonably satisfactory to Lender, and shall be certified by the chief
financial officer or comptroller of Borrower to be true, accurate and
complete in material respects.
(ii) In the event that (a) a default under the Loan Documents or
Additional Loan Documents shall have occurred or (b) Lender shall
determine that the Net Operating Income of the Property and the Additional
Properties was, for the preceding twelve (12) months as reasonably determined
by Lender in accordance with Federal National Mortgage underwriting
guidelines then in effect, less than 1.50 based on a thirty (30) year
amortization schedule (the "Debt Service"), then Borrower shall following
demand by Lender thereafter cause all Gross Revenues from the Property to be
directly deposited in a lockbox (the "Lockbox") established, administered and
controlled solely by Lender. Such test may be performed by Lender no more
frequently than quarterly. Lender shall hold all funds deposited in the
Lockbox as additional security for the indebtedness secured by the
Instrument. All funds on deposit in the Lockbox shall be held by Lender free
of any liens or claims on the part of creditors of Borrower other than
Lender. Borrower shall complete such forms as may be provided by Lender to
Borrower in order to notify the Postal Service of the Lockbox arrangement.
Borrower acknowledges that in such event, Lender shall have exclusive and
unrestricted access to the Lockbox, including all mail which is delivered
thereto. In the event that Lender elects to establish a Lockbox, all tenants
of the Property, and other parties obligated to make any payments to Borrower
with respect to the Property, shall be notified and directed to make such
payments directly into the Lockbox with Lender in accordance with this
Supplemental Rider (such notices are hereinafter referred to collectively as
the "Payment Notices"). The Payment Notices shall also request that such
payments not be made in cash and that such obligors only send payments and
related invoices or statements to the Lockbox (but not other correspondence).
Borrower agrees to execute and deliver to Lender such Payment Notices as may
be requested by Lender to notify such tenants of the Property and such other
parties that may become obligated to make payments to Borrower of the
provisions of this paragraph. Borrower does hereby designate and appoint
Lender its agent and attorney-in-fact for the purpose of executing in the
name of Borrower, addressing and forwarding such notices to such tenants and
such other parties obligated to make any such payments or any
portion thereof, which power of attorney is coupled with an interest and
irrevocable by dissolution or otherwise. After the giving of the Payment
Notices by Lender, Borrower shall not communicate with any such tenant or any
such other party obligated to pay any sums to Borrower for the purpose of
cancelling such notice or directing any such party to make payments other
than in accordance with such notices. Borrower does hereby acknowledge and
agree that the forwarding of such notices by Lender to such tenants and such
other parties constitutes all actions, if any, required to be taken by Lender
to exercise, invoke or perfect its rights to collect the rents, issuee and
profits of the Property. Borrower agrees that, after the establishment of
the Lockbox, any Gross Revenues received by Borrower will be
promptly delivered by Borrower to Lender for deposit in the Lockbox, and
pending such delivery will be held by Borrower in trust for Lender.
(iii) Provided no default or event which, with the giving of
notice or the passage of time or both, would constitute a default under the
Loan Documents or the Additional Loan Documents shall have occurred, Lender
shall remit to Borrower all funds on deposit in the Lockbox at such time as
the funds on deposit in the Lockbox are sufficient to pay for such month (A)
the principal and interest due and payable on the Note and the Additional
Notes, (B) any deposits payable pursuant to Uniform Covenant 2 of the
Instrument, and (C) any monthly deposits required pursuant to any Collateral
Agreement (collectively the "Payments"). Lender shall withdraw from the
Lockbox any amounts on deposit in the Lockbox to pay the Payments. The right
of Lender to cause all Gross Revenues to be deposited into the Lockbox shall
be suspended at such time as the Borrower establishes to the satisfaction of
Lender that the Net Operating Income of the Property and the Additional
Property for the preceding twelve (12) months equals or exceeds 1.50 times
the Debt Service, until such time as the Net Operating Income again falls
below such threshold. The collection of Gross Revenues by Lender under this
Section F is not intended to modify Borrower's obligations under the Loan
Documents or the Additional Loan Documents.
(iv) Upon the occurrence of any default or event of default,
Lender may at any time, without notice or demand, withdraw all or any amount
of funds on deposit in the Lockbox and apply such funds to the payment of the
2
indebtedness secured hereby in such order as Lender may determine in its sole
discretion.
(v) The forwarding of the Payment Notices to tenants of the
Property and such other parties obligated to make any payments to Borrower
directing such parties to make payments directly into the Lockbox shall not
be deemed or construed to constitute a waiver by Lender or any right or
remedy Lender may have under the Loan Documents to direct such tenants or
other parties to make payments directly to Lender after the occurrence of an
event of default.
(vi) Borrower hereby irrevocably appoints Lender as its true and
lawful agent and attorney-in-fact for purposes of collecting all items from
the Lockbox, making any and all endorsements on such items as are necessary
or appropriate, and withdrawing funds on deposit in the Lockbox to be applied
as provided in this Instrument.
(vii) Borrower agrees that it shall have no right to use any
amounts on deposit from time to time in the Lockbox except as specifically
provided herein, and that none of the funds on deposit in the Lockbox may be
withdrawn by Borrower from the Lockbox without the prior written consent of
Lender. No items or funds on deposit in the Lockbox shall at any time be
deemed to be trust funds. All or any of the Lockboxes created pursuant to
the Loan Documents or the Additional Loan Documents may be maintained by
Lender as a single account, and all funds maintained in such accounts may be
commingled, provided that the amounts credited to and debited from each of
such accounts shall be accounted for separately.
(viii) Borrower agrees to indemnify Lender and its agents from and
against any and all claims, expenses, losses and liabilities growing out of
or resulting from the enforcement of the provisions herein concerning the
Lockbox, except claims, expenses, losses or liabilities resulting from
Lender's gross negligence or wilful misconduct. Borrower upon demand shall
pay to Lender or its agent administering the Lockbox a monthly fee in the
amount of one-quarter of one percent (.25%) of the average deposits to the
Lockbox during the immediately preceding month for the administration of the
Lockbox. Lender or its agent shall be entitled to withdraw from the Lockbox
after ten (10) days prior written notice to Borrower, such amounts as and
when due; provided, however, that Borrower shall remain liable for the
payment of such amounts in the event that the amounts on deposit in the
Lockbox are not sufficient to pay such amounts in full as and when due.
(ix) Lender's election to establish a Lockbox in accordance with
the provisions of this paragraph D shall not be deemed an election in lieu
of any other right or remedy under the Loan Documents and/or the Additional
Loan Documents or otherwise afforded by law or equity but may be exercised
concurrently, independently, or successively, in any order whatsoever, with
any other right or remedy so provided.
G. [INTENTIONALLY DELETED]
H. [INTENTIONALLY DELETED]
I. INSURANCE. Without limitation of the terms and provisions of the
Instrument, Borrower will, at its expense, procure and maintain for the
benefit of Borrower and Lender, insurance policies issued by such insurance
companies, in such amounts, in such form and substance, and with such
coverages, endorsements, deductibles and expiration dates as are acceptable
to Lender, providing the following types of insurance covering the Property:
i) "ALL RISKS" property insurance (including broad form flood,
broad form earthquake and comprehensive boiler and machinery coverages) on
each building and the contents therein of Borrower in an amount not less than
one hundred percent (100%) of the full replacement cost of each building and
the contents therein of Borrower, with deductibles not to exceed $10,000 for
any one occurrence (unless a higher deductible is required by state law),
with a replacement cost coverage endorsement and an agreed amount
endorsement. Full replacement cost as used herein means the cost of
replacing the buildings (exclusive of the cost of excavations, foundations
3
and footings below the lowest basement floor) and the contents therein of
Borrower without deduction for physical depreciation thereof;
ii) Flood insurance if at any time any building is located in any
federally designated "special hazard area", in an amount equal to the full
replacement cost or the maximum amount then available under the National
Flood Insurance Program, with deductibles not to exceed $3,000 for any one
occurrence (unless a higher deductible is required by state law);
iii) Rent loss insurance in an amount sufficient to recover at
least the total estimated gross receipts from all sources of income,
including without limitation, rental income, for the Property for a twelve
month period; and
iv) Commercial general liability insurance against claims for
personal injury and property damage liability, all on an occurrence basis,
with such coverage as Lender may reasonably request with a general aggregate
limit of not less than $1,000,000, and a combined single "per occurrence"
limit of not less than $2,000,000 for bodily injury, property damage and
medical payments, with no deductible.
The insurance policies with respect to the property provided for in
clause (iv) above with respect to the Property shall name Lender as an
additional insured. The insurance policies provided for in clauses (i), (ii)
and (iii) above shall name Lender as mortgagee and loss payee, shall be first
payable in case of loss to Lender, and shall contain mortgagee clauses and
lender's loss payable endorsements in form and substance acceptable to
Lender. At least 15 days prior to the expiration date of the policies,
Borrower shall deliver to Lender evidence of continued coverage, including a
certificate of insurance, as may be satisfactory to Lender. All policies of
insurance required by this Instrument shall contain clauses or endorsements
to the effect that such policies shall not be modified, cancelled
or terminated prior to the scheduled expiration date thereof without the
insurer thereunder giving at least 30 days prior written notice to Lender.
All policies of insurance required by the instrument shall be issued by
companies licensed to do business in the State where the policy is issued and
also in the states where the Property is located and having a rating in
Best's Key Rating Guide of at least "A-" and a financial size category of at
least "V".
J. [INTENTIONALLY DELETED]
K. [INTENTIONALLY DELETED]
L. [INTENTIONALLY DELETED]
M. ADDITIONAL REPRESENTATIONS. Borrower represents to Lender that
AIMCO COPPERFIELD, L.P. is the sole general partner of Borrower (the "General
Partner"), that AIMCO HOLDINGS (as defined in Section S below) is the sole
general partner of the General Partner and that AIMCO QRS (as defined in
Section S below) is the sole general partner of AIMCO HOLDINGS. Borrower
further represents that a substantial portion (at least 10%) of the limited
partnership interests of Borrower are held by an entity or entities wholly
unrelated to AIMCO REIT (as defined in Section S below).
N. [INTENTIONALLY DELETED]
0. CONSENT TO RELIEF FROM AUTOMATIC STAY. Borrower hereby agrees that,
in consideration of the making of the loan by Lender to Borrower evidenced by
the Notes and the Additional Notes, and as a material inducement to Lender to
make such loan and to the Federal National Mortgage Association to acquire
such loan from Lender, in the event Borrower shall (i) file with any
bankruptcy court of competent jurisdiction or be the subject of any petition
under the United States Bankruptcy Code (the "Bankruptcy Code"), (ii) be the
subject of any order for relief issued under the Bankruptcy Code, (iii) file
or be the subject of any petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under
any present or future federal or state act or law relating to bankruptcy,
insolvency, or other relief for debtors, (iv) have sought or consented to or
acquiesced in the appointment of any trustee, receiver,
4
conservator, or liquidator, or (v) be the subject of any order, judgment, or
decree entered by any court of competent jurisdiction approving a petition
filed against such party for any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present
or future federal or state act or law relating to bankruptcy, insolvency, or
relief for debtors, then (a) Lender shall thereupon be entitled and Borrower
irrevocably consents to relief from any automatic stay imposed by Section 362
of the Bankruptcy Code, or otherwise, on or against the exercise of the
rights and remedies otherwise available to Lender as provided in the Note
and/or Instrument or any of the Additional Loan Documents, and as otherwise
provided by law, and Borrower hereby irrevocably waives its right to object
to such relief and acknowledges that no reorganization in bankruptcy is
feasible; (b) Borrower waives its exclusive right pursuant to Section 1121(b)
of the Bankruptcy Code to file a plan of reorganization and irrevocably
consents to the Lender filing a plan immediately upon the entry of an order
for relief if any involuntary petition is filed against Borrower or upon the
filing of a voluntary petition by the Borrower; (c) in the event that Lender
shall move pursuant to Section 1121(d) of the Bankruptcy Code for an order
reducing the 120 day exclusive period, Borrower shall not object to any such
motion; and (d) Borrower irrevocably waives its right to demand a turnover of
the Property from a receiver appointed at the request of Lender, and agrees
that it is in the best interest of the creditors pursuant to Section 543(d)
of the Bankruptcy Code for the receiver to continue in possession, custody
and control of the Property.
P. ACCELERATION; REMEDIES. Non-Uniform Covenant 27 of the Instrument
("Acceleration; Remedies") is amended to read as follows:
(a) DEFAULT. 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 (collectively an "Event
of Default"), Lender may exercise any and all remedies provided under this
Instrument and/or under any of the other Loan Documents or Additional Loan
Documents, or any other remedies available under applicable law, or any one
or more of such remedies.
(b) REMEDIES. Upon the occurrence of any Event of Default and at
any time thereafter:
i) INDEBTEDNESS DUE. All indebtedness secured by this
Instrument in its entirety shall, at the option of Lender, become immediately
due and payable without presentment, demand, notice of intention to
accelerate or notice of acceleration, or other notice of any kind except as
otherwise expressly set forth herein, all of which are hereby expressly
WAIVED, and the liens and security interests created or intended to be
created hereby shall be subject to foreclosure, repossession and sale in any
manner provided for herein or provided for by law, as Lender may elect, and
Lender may exercise any and all of its rights under this Instrument, the
Note, the Loan Documents and any of the Additional Loan Documents.
ii) POWER OF SALE; LEGAL PROCEEDINGS. Lender shall have
the right to invoke the power of sale granted herein, which power of sale
Borrower acknowledges may be exercised without prior judicial hearing.
Trustee and Lender shall also have the right and power to proceed by suit or
suits in equity or at law, whether for the specific performance of any
covenant or agreement of Borrower contained herein or in aid of the execution
of the powers herein granted, including the power of sale, or for the
enforcement of any other appropriate legal or equitable remedy.
iii) TRUSTEE'S SALE. Trustee, upon the written request of
Lender, shall be authorized and empowered and it shall be the Trustee's
special duty to sell the Property or any part thereof. The sale shall be
made in the county in which the Property is situated. If the Property is
situated in more than one county, then notices as hereinafter provided shall
be given in both or all of such counties, the Property may be sold in either
county, and such notices shall designate the county where the Property will
be sold. Notice of such sale shall be given by posting written notice of the
sale at the courthouse door, and by filing a copy of the notice in the county
clerk's office in the county in which the sale is to be made, at least
twenty-one (21) days preceding the date of the sale. If the Property is in
5
more than one county, one notice shall be posted at the courthouse door of
each county in which the Property is situated and one notice shall be filed
with the county clerk of each county in which the Property is situated. In
addition, the holder of the indebtedness secured by this Instrument (or any
part thereof) shall at least twenty-one (21) days preceding the date of such
sale serve written notice of the proposed sale by certified mail on each
debtor obligated to pay the indebtedness secured by this Instrument (or any
part thereof) according to the records of such holder. Service of such
notice upon each debtor shall be completed upon deposit of the notice,
enclosed in postage paid wrapper, properly addressed to such debtor at his,
her or its most recent address as shown by the records of such holder of the
indebtedness secured by this Instrument (or any part thereof) in a post
office or official depository under the care and custody of the United States
postal Service. The affidavit of any person having knowledge of the facts to
the effect that such service was completed shall be prima facie evidence of
the fact of service. After such written notice shall have been posted and
filed, as aforesaid, and such notice shall have been served upon such debtor
or debtors, as aforesaid, Trustee acting shall perform its duty to enforce
the trusts granted herein by selling the Property, either as an entirety or
in parcels as the Lender may direct (all rights to a marshalling of assets or
sale in inverse order of alienation being waived and Borrower shall not have
any right to require the Trustee to sell less than all of the Property) at
public venue, in the place designated by the commissioner's court in the
county designated in such notice on the first Tuesday in any month between
the hours of 10:00 A.M. and 4:00 P.M. (and within three (3) hours after a
specific time designated in such notice), to the highest bidder or bidders
for cash, and make due conveyance to the purchaser or purchasers, with
general warranty, and the title to such purchaser or purchasers, when so made
by Trustee acting, Borrower binds itself, its heirs, legal representatives,
successors and assigns, to warrant and forever defend against the claims and
demands of every person whomsoever lawfully claiming to claim the same or any
part thereof. Payment of the purchase price to the Trustee shall satisfy the
obligation of the purchaser at such sale therefor, and such purchaser shall
not be responsible for the application thereof. The sale or sales by the
Trustee of less than the whole of the Property shall not exhaust the power of
sale herein granted, and Trustee is specifically empowered to make successive
sale or sales under such power until the whole of the Property shall be sold;
and if the proceeds of such sale or sales of less than the whole of the
Property shall be less than the aggregate of the indebtedness secured by this
Instrument and the expenses thereof, this Instrument and the lien, security
interest and assignment hereof shall remain in full force and effect as to
the unsold portion of the Property just as though no sale or sales had been
made; provided, however, that Borrower shall never have any right to require
the sale or sales of less than the whole of the Property, but Lender shall
have the right, at its sole election, to request the Trustee to sell less
than the whole of the Property. If an Event of Default occurs, the holder of
the indebtedness secured by this Instrument or any part thereof on which the
payment is delinquent shall have the option to proceed with foreclosure in
satisfaction of such item either through judicial proceedings or by directing
Trustee to proceed as if under a full foreclosure, conducting the sale as
herein provided without declaring the entire indebtedness secured by this
Instrument due, and if sale is made because of default of an installment, or
a part of an installment, such sale may be made subject to the unmatured part
of the indebtedness secured by this Instrument; and it is agreed that such
sale, if so made, shall not in any manner affect the unmatured part of the
indebtedness secured by this Instrument, but as to such unmatured part this
Instrument shall remain in full force and effect as though no sale had been
made under the provisions of this paragraph. Several sales may be made
hereunder without exhausting the right of sale for any unmatured part of the
indebtedness secured by this Instrument. At any such sale (1) Borrower
hereby agrees, in its behalf and in behalf of its heirs, executors,
administrators, successors, personal representatives and assigns, that any
and all recitals made in any deed of conveyance given by Trustee with respect
to the identity of Lender, the occurrence or existence of any default, the
acceleration of the maturity of any of the indebtedness secured by this
Instrument, the request to sell, the notice of sale, the giving of notice to
all debtors legally entitled thereto, the time, place, terms and manner of
sale, and receipt, distribution and application of the money realized
therefrom, or the due and proper appointment of a substitute Trustee, and,
without being limited by the foregoing, with respect to any other act or
6
thing having been duly done by Lender or by Trustee hereunder, shall be taken
by all courts of law and equity as prima facie evidence that the statements
or recitals state facts and are without further question to be so accepted,
and Borrower hereby ratifies and confirms every act that Trustee or any
substitute Trustee may lawfully do in the premises by virtue hereof, and (2)
the purchaser may disaffirm any easement granted, or rental, lease or other
contract made in violation of any provision of this Instrument, and may take
immediate possession of the Property free from, and despite the terms of,
such grant of easement and rental or lease contract. Lender may bid and
become the purchaser of all or any part of the Property at any trustee's or
foreclosure sale hereunder, and the amount of Lender's successful bid may be
credited on the indebtedness secured by this Instrument. The provisions
hereof with respect to posting and giving notices of sale are intended to
comply with the provisions of the Texas Property Code, and any
other applicable laws, and in the event the requirements for any notice under
the Texas Property Code or such other applicable laws shall be eliminated or
the prescribed manner of giving same modified by future amendment to, or
adoption of any statute superseding, the Texas Property Code or such other
applicable law, the requirements for such particular notice shall be deemed
stricken from or modified in this Instrument in conformity with such
amendment or superseding statute, effective as of the effective date of same.
The manner herein prescribed for serving or giving any notice, other than
that to be posted or caused to be posted by Trustee, shall not be deemed
exclusive but such notice or notices may be given in any other manner
which may be permitted by applicable law. Said sale shall forever be a bar
against Borrower, its heirs, legal representatives, successors and assigns,
and all other persons claiming under it. It is expressly agreed that the
recitals in each conveyance to the purchaser shall be full evidence of the
truth of the matters therein stated, and all lawful prerequisites to said
sale shall be conclusively presumed to have been performed.
(c) APPLICATION OF PROCEEDS, RENTS, ETC. The proceeds of any sale
of, and any rents and other amounts generated by the holding, leasing,
operation or other use of the Property shall be applied by the Trustee (or
the receiver, if one is appointed) to the extent that funds are so available
therefrom, in the following order of priority:
i) COSTS OF TRUSTEE'S SALE. First, to the payment of all
reasonable costs of the sale by the Trustee or other costs mandated by law
(including the Trustee's commission).
ii) OTHER COSTS. Second, to the payment of the
reasonable costs and expense of taking possession of the Property and of
holding, using, leasing, repairing and selling the same, including without
limitation (1) reasonable attorneys' and accountants' fees, and (2) the
payment of any and all taxes, assessments, liens, security interests or other
rights, titles or interests superior to the lien and security interest of
this Instrument;
iii) INDEBTEDNESS. Third, to the payment of the
indebtedness secured by this Instrument and/or any Additional Security
Instrument in such order as Lender, in Lender's sole discretion, directs; and
iv) BALANCE. Fourth, to Borrower, its heirs, legal
representatives, successors and assigns, or to whomsoever may be lawfully
entitled to receive the same.
(d) LENDER'S FORECLOSURE OPTIONS. Trustee may require minimum
bids at any foreclosure sale and may cancel and abandon the sale if no bid is
received equal to or greater than any such minimum bid. If foreclosure
should be commenced by Trustee, Lender may at any time before the sale direct
Trustee to abandon the sale for any reason, and may at any time or times
thereafter direct Trustee to again commence foreclosure. Irrespective of
whether foreclosure is commenced by Trustee, Lender may at any time after the
occurrence of an Event of Default institute suit for collection of the
indebtedness secured by this Instrument or foreclosure of the lien of this
Instrument. If Lender should institute suit for collection of the
indebtedness secured by this Instrument or foreclosure of the lien of this
Instrument, Lender or such other holder may at any time before the entry of
7
final judgment dismiss the same, and require Trustee to sell the Property in
accordance with the provisions of this Instrument.
(e) MULTIPLE SALES AND FORECLOSURES. No single sale or series of
sales by Trustee or by any substitute or successor trustee under this
Instrument, and no judicial foreclosure shall extinguish the lien or security
interest, or exhaust the power of sale under this Instrument except with
respect to the items of property sold, but such lien or security interest and
power shall exist for so long as, and may be exercised in any manner by law
or in this Instrument provided as often as, the circumstances require to give
Lender full relief hereunder.
(f) LENDER MAY BUY. Lender shall have the right to become the
purchaser at any sale made hereunder, being the highest bidder, and credit
upon all or any part of the indebtedness secured by this Instrument shall be
deemed cash paid for the purposes of this paragraph.
(g) COSTS. Lender shall be entitled to collect all costs and
expenses incurred in pursuing its remedies, including, but not limited to,
attorneys' fees and costs of documentary evidence, abstracts and title
reports.
Q. DTPA WAIVER. Borrower waives all rights, remedies, claims, demands
and causes of action based upon or related to the Texas Deceptive Trade
Practices-Consumer Protection Act as described in Section 17.41 et. seq.
(other than Section 17.555) of the Texas Business & Commerce Code, as the
same pertains or may pertain to the Note and the Additional Notes, the
indebtedness secured by this Instrument and any of the other Loan Documents
or Additional Loan Documents or any of the transactions contemplated therein,
to the maximum extent that such rights, remedies, claims, demands, and causes
of action may lawfully and effectively be waived. In furtherance of this
waiver, Borrower hereby represents and warrants to Lender that (a) Borrower
is represented by legal counsel in connection with the negotiation, execution
and delivery of this Instrument, (b) Borrower has a choice other than to
enter into this waiver in that it can obtain the loans evidenced by the Note
and the Additional Notes from another institution and (c) Borrower does not
consider itself to be in a significant disparate bargaining position relative
to Lender with respect to the Note, the Additional Notes and the other Loan
Documents and the Additional Loan Documents.
R. BOOKS AND RECORDS. In addition to the obligations of the Borrower
under paragraph E of the Rider to Multifamily Instrument amending Uniform
Covenant 10 of the Instrument ("Books and Records"), the Borrower shall
provide the Lender the following:
(i) ANNUAL FINANCIAL STATEMENTS. As soon as available, and in any
event within 120 days after the close of each fiscal year of any Key
Principal during the term of this Agreement, its audited balance sheet as of
the end of such fiscal year, its audited statement of income, partners'
equity and retained earnings for such fiscal year and its audited statement
of cash flows for such fiscal year, all in reasonable detail and stating in
comparative form the respective figures for the corresponding date and period
in the prior fiscal year, prepared in accordance with GAAP, consistently
applied, and accompanied by a certificate of its independent certified public
accountants to the effect that such financial statements have been prepared
in accordance with GAAP, consistently applied, and that such financial
statements fairly present the results of its operations and financial
condition for the periods and dates indicated, with such certification to be
free of exceptions and qualifications as to the scope of the audit or as to
the going concern nature of the business.
(ii) QUARTERLY FINANCIAL STATEMENTS. As soon as available, and in
any event within 45 days after each of the first three fiscal quarters of any
fiscal year of any Key Principal during the term of this Agreement, its
unaudited balance sheet as of the end of such fiscal quarter and its
unaudited statement of income and retained earnings and its unaudited
statement of cash flows for the portion of the fiscal year ended with the
last day of such quarter, all in reasonable detail and stating in comparative
form the respective figures for the corresponding date and period in the
previous fiscal year, accompanied by a certificate of each Key Principal to
8
the effect that such financial statements have been prepared in accordance
with GAAP, consistently applied, and that such financial statements fairly
present the results of its operations and financial condition for the periods
and dates indicated.
(iii) MONTHLY PROPERTY STATEMENT. Upon Lender's request, on a
monthly basis within 15 days of the last day of the prior month, a statement
of income and expenses of the Property accompanied by a certificate of
Borrower to the effect that each such statement of income and expenses
fairly, accurately and completely presents the operations of the Property for
the period indicated.
(iv) ANNUAL PROPERTY STATEMENTS. On an annual basis within 15
days of the end of the fiscal year, an annual statement of income and
expenses of the Property accompanied by a certificate of Borrower to the
effect that each such statement of income and expenses fairly, accurately and
completely presents the operations of the Property for the period indicated.
(v) UPDATED RENT ROLLS. Upon Lender's request, a current rent
roll for the Property, showing the name of each tenant, and for each tenant,
the space occupied, the lease expiration date, the rent payable, the rent
paid and any other information requested by Lender and in the form required
by Lender and accompanied by a certificate of Borrower to the effect that
each such rent roll fairly, accurately and completely presents the
information required therein.
(vi) SECURITY DEPOSIT INFORMATION. Upon Lender's request, an
accounting of all security deposits held in connection with any lease of any
part of the Property, including the name and identification number of the
accounts in which such security deposits are held, the name and address of
the financial institutions in which such security deposits and held and the
name of the person to contact at such financial institution, along with any
authority or release necessary for Lender to access information regarding
such accounts.
(vii) SECURITY LAW REPORTING INFORMATION. Promptly upon the
mailing thereof to the partners or shareholders of Borrower or any Key
Principal, copies of all financial statements, reports and proxy statements
so mailed and promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and annual, quarterly or monthly reports
(excluding Form 4, Statement of Changes in Beneficial Ownership, or its
equivalent, unless they reflect a change in control in Owner) which Borrower
or any Key Principal shall have filed with the United States Securities and
Exchange Commission or other Governmental Authorities.
(viii) ACCOUNTANTS' REPORTS. Promptly upon receipt thereof,
copies of any reports or management letters submitted to Borrower by its
independent certified public accountants in connection with the examination
of its financial statements made by such accountants (except for reports
otherwise provided pursuant to clause (i) above).
(ix) CONDITION OF APARTMENT INVESTMENT AND MANAGEMENT COMPANY.
Borrower shall promptly notify the Lender of any report, event or condition
known to the Borrower that the status of Apartment Investment and Management
Company as a real estate investment trust under Subchapter M of the Internal
Revenue Code has been terminated or brought into question.
9
S. TRANSFERS OF THE PROPERTY.
(a) DEFINITIONS
For purposes of this Instrument, the following terms have the respective
meanings set forth below:
(i) The term "TRANSFER" means (A) a sale, assignment, pledge,
transfer or other disposition (whether voluntary or
by operation of law) of, or the granting or creating of a
lien, encumbrance or security interest in, any of
Borrower's estate, rights, title or interest in the
Property, or any portion thereof, or (B) a sale,
assignment, pledge, transfer or other disposition of any
interest in Borrower, its General Partner, AIMCO HOLDINGS,
AIMCO QRS, AIMCO REIT or in AIMCO OP, or (C) the issuance
or other creation of new ownership interests in Borrower,
its General Partner, AIMCO HOLDINGS, AIMCO QRS, AIMCO REIT
or in AIMCO OP, or (D) a merger or consolidation of
Borrower, its General Partner, AIMCO REIT, AIMCO OP, AIMCO
QRS or AIMCO HOLDINGS or (E) the reconstitution of
Borrower, its General Partner, AIMCO REIT, AIMCO OP, AIMCO
QRS or AIMCO HOLDINGS from one type of entity to another
type of entity.
(ii) A "CHANGE OF CONTROL" shall mean the earliest to occur of:
(A) the date an Acquiring Person becomes (by
acquisition, consolidation, merger or otherwise), directly
or indirectly, the beneficial owner of more than forty
percent (40%) of the total Voting Equity Capital of AIMCO
REIT then outstanding, or (B) the date on which AIMCO REIT
shall cease to hold (whether directly or indirectly through
a wholly owned intermediary entity such as AIMCO-LP, Inc.
or AIMCO-GP, Inc.) less than 50.1% of the limited
partnership interests in AIMCO OP or (C) the date of which
AIMCO REIT shall cease for any reason to own 100% of the
Voting Equity Capital (or any other securities) of AIMCO
QRS, or (D) the date on which AIMCO QRS shall cease for any
reason to be the sole general partner of AIMCO Holdings or
(E) the date on which AIMCO HOLDINGS shall cease for any
reason to be the sole general partner of the General
Partner or (F) the date on which the General Partner shall
cease to be the sole general partner of the Borrower
or (G) the replacement (other than solely by reason of
retirement at age sixty-five or older, death or disability)
of more than 50% (or such lesser percentage as is required
for decision-making by the board of directors or trustees,
if applicable) of the members of the board of directors (or
trustees, if applicable) of AIMCO REIT over a one-year
period where such replacement shall not have been approved
by a vote of at least a majority of the board of directors
(or trustees, if applicable) of AIMCO REIT then still in
office who either were members of such board of directors
(or trustees, if applicable) at the beginning of such
one-year period or whose election as members of the board
of directors (or trustees, if applicable) was previously so
approved.
(iii) An "ACQUIRING PERSON" shall mean a "PERSON" or "GROUP OF
PERSONS" within the meaning of Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended; PROVIDED,
HOWEVER, that notwithstanding the foregoing, "ACQUIRING
PERSON" shall not be deemed to include any member of the
Borrower Control Group unless such member has, directly or
indirectly, disposed of, sold or otherwise transferred to,
or encumbered or restricted (whether by means of voting
trust agreement or otherwise) for the benefit of an
Acquiring Person, all or any portion of the Voting Equity
Capital of AIMCO REIT directly or indirectly owned or
controlled by such member or such member directly or
indirectly votes all or any portion of the Voting Equity
Capital of AIMCO REIT, directly or indirectly, owned or
controlled by such member for the taking of any action
which, directly or indirectly, constitutes or would result
in a Change of Control, in which event such member of the
Borrower Control Group shall be
10
deemed to constitute an Acquiring Person to the extent of
the Voting Equity Capital of AIMCO REIT owned or controlled
by such member.
(iv) "BORROWER CONTROL GROUP" shall mean Terry Considine, Peter K.
Kompaniez, Richard S. Ellwood, J. Landis Martin, Thomas L.
Rhodes and John D. Smith.
(v) A "PERSON" shall mean an individual, an estate, a trust, a
corporation, a partnership, a limited liability company or
any other organization or entity (whether governmental or
private).
(vi) "SECURITY" shall have the same meaning as in Section 2(l) of
the Securities Act of 1933, as amended.
(vii) "VOTING EQUITY CAPITAL" shall mean Securities of any class or
classes, the holders of which are ordinarily, in the absence
of contingencies, entitled to elect a majority of the board of
directors (or Persons performing similar functions).
(viii) "AIMCO REIT" shall mean Apartment Investment and Management
Company, a corporation organized and existing under the laws
of the State of Maryland.
(ix) "AIMCO OP" shall mean AIMCO Properties, L.P., a limited
partnership organized and existing under the laws of the
State of Delaware.
(x) "AIMCO QRS" shall mean AIMCO Holdings QRS, Inc., a corporation
organized and existing under the laws of the State of
Delaware.
(xi) "AIMCO HOLDINGS" shall mean AIMCO Holdings, L.P., a limited
partnership organized and existing under the laws of the State
of Delaware.
(xii) "GENERAL PARTNER" shall be as defined in Section M above.
(b) ACCELERATION OF THE LOAN UPON TRANSFERS OF THE PROPERTY OR
SIGNIFICANT INTERESTS
Subject to clause (c) hereof, Lender may, at Lender's option, declare
all sums secured by this Instrument immediately due and payable and Lender
may invoke any remedies permitted by paragraph 27 of this Instrument if,
without Lender's prior written consent, any of the following shall occur:
(i) a Transfer of all or any part of the Property or any interest
in the Property; or
(ii) a Transfer of any interest in Borrower or the General
Partner; or
(iii) a Change in Control.
(c) NO ACCELERATION OF THE LOAN FOR TRANSFERS CAUSED BY CERTAIN EVENTS
Notwithstanding the foregoing provisions of this covenant, Lender shall
not be entitled to declare sums secured by this Instrument immediately due
and payable or to invoke any remedy permitted by paragraph 27 of this
Instrument solely upon the occurrence of any of the following:
(i) a Transfer that occurs by inheritance, devise, or bequest or
by operation of law upon the death of a natural person who is
an owner of an indirect ownership interest in the Borrower.
(ii) The grant of a leasehold interest in individual dwelling
units for a term of two years or less and leases for
commercial uses provided that (A) commercial leases do not
exceed 5 percent (5%) of (1) the rentable space of the
Property (measured as
11
required by Lender) or (2) the rental income from the
Property, (B) no such commercial leasehold interest contains
an option to purchase the Property, and (C) all such
commercial leasehold interests, in the aggregate, (1) do not
adversely affect the value of the Property and (2) are
coincidental to the current use of the Property for
multifamily residential purposes.
(iii) A sale or other disposition of obsolete or worn out
personal property which is contemporaneously replaced by
comparable personal property of equal or greater value which
is free and clear of liens, encumbrances and security
interests other than those created by the Loan Documents.
(iv) The creation of a mechanic's or materialmen's lien or
judgment lien against the Property which is released of
record or otherwise remedied to Lender's satisfaction, within
thirty (30) days of the date of creation.
(v) The grant of an easement, if prior to the granting of the
easement Borrower causes to be submitted to Lender all
information required by Lender to evaluate the easement, and
if Lender determines that the easement will not materially
affect the operation of the Property or Lender's interest in
the Property and Borrower pays to Lender on demand, all costs
and expenses incurred by Lender in connection with reviewing
Borrower's request. Lender shall not unreasonably withhold
its consent to (A) the grant of a utility easement serving the
Property to a publicly operated utility, or (B) the grant of
an easement related to expansion or widening of roadways,
provided that such easement is in form and substance
reasonably acceptable to Lender and does not materially and
adversely affect the access, use or marketability of the
Property.
(vi) The transfer of limited partnership interests in Borrower
by parties unrelated to AIMCO REIT provided no Change in
Control occurs as a result of such Transfer.
(vii) The Transfer of shares of common stock, limited
partnership interests or other beneficial or ownership
interests or other forms of securities in AIMCO REIT or AIMCO
OP, and the issuance of all varieties of convertible debt,
equity and other similar securities of AIMCO REIT or AIMCO OP,
and the subsequent Transfer of such securities; provided,
however, that no Change in Control occurs as a result of such
Transfer, either upon such Transfer or upon the subsequent
conversion to equity of such convertible debt or other
securities.
(viii) The issuance by AIMCO REIT or AIMCO OP of additional
common stock, limited partnership interests or other
beneficial or ownership interests, convertible debt, equity
and other similar securities, and the subsequent Transfer of
such convertible debt or securities; provided, however, that
no Change in Control occurs as the result of such Transfer,
either upon such Transfer or upon the subsequent conversion to
equity of such convertible debt or other securities.
(ix) So long as AIMCO REIT owns 100% of the stock of AIMCO-LP, Inc.,
a Transfer of limited partnership interests that results in
AIMCO-LP, Inc. owning not less than 50.1% of the limited
partnership interests in AIMCO OP.
(e) OTHER PROVISIONS REGARDING TRANSFERS. The parties acknowledge and
agree that pursuant to the provisions of the this Instrument, Lender may
permit a transfer of an indirect interest in the Borrower where Lender
approves the transferee's creditworthiness. Lender will approve such proposed
transferee's creditworthiness in connection with a transfer of indirect
interests in the Borrower so long as there is no transfer of a direct
interest in Borrower or its General Partner and so long as no "Change of
12
Control" occurs. So long as there is no transfer of a direct interest in
Borrower or its General Partner and so long as no Change in Control occurs,
Lender's consent to the transferee's creditworthiness in connection with a
transfer of indirect interests in the Borrower shall be deemed automatic and
Borrower shall not be required to come to Lender for consent. Alternatively,
if a transfer of either a direct interest in Borrower or its General Partner
or a Change in Control is contemplated, Borrower must obtain Lender's prior
written consent. Nothing contained in this paragraph is intended to permit,
authorize or confer consent to a transfer of all or any part of any property
encumbered by the Instrument.
Lender will not unreasonably withhold its consent to a "Change of
Control", provided that Borrower gives Lender not less than forty-five (45)
days prior written notice of such Change of Control. Borrower acknowledges
and agrees that time is of the essence with respect to such notice and that
the remaining provisions of this paragraph shall be null and void unless such
notice is timely given by Borrower. Lender will not withhold its consent
under this paragraph if Lender determines in its discretion that (A) such
acquiring person or entity has a creditworthiness at least equal to that of
Borrower, (B) that such acquiring person or entity is of sufficient size and
sophistication to own, operate and manage the properties securing the
Mortgages and (C) that such acquiring person or entity has experience that is
at least equal to that of Borrower in the ownership, operation and management
of a portfolio of Multifamily Residential Property that is at least equal in
value to the value of the property securing the Instrument. Lender shall
provide Borrower written notice of its decision to consent or refuse to
consent to a Change in Control under this paragraph within thirty (30) days
from the date that Lender determines that it has received all of
the information required by Lender to make the determinations described in
the preceding sentence.
IN WITNESS WHEREOF, the parties hereto have executed this Supplemental
Rider or have caused the same to be executed by their respective
representatives thereunto duly authorized.
BORROWER:
WITNESS: COPPERFIELD PARTNERS, LTD.,
a Texas limited partnership
By: AIMCO COPPERFIELD, L.P.,
a Delaware limited partnership,
its General Partner
By: AIMCO HOLDINGS, L.P., a
Delaware limited partnership,
its General Partner
By: AIMCO HOLDINGS QRS, INC.,
a Delaware corporation,
its General Partner
/s/ Judith E. Mintz By: /s/ Harry Alcock
- -------------------- -----------------------
Harry Alcock
Vice President
13
ACKNOWLEDGMENT
DISTRICT OF COLUMBIA ) to-wit:
BEFORE ME, the undersigned, a Notary Public in and for the jurisdiction
aforesaid, this day personally appeared Harry Alcock, known to me to be the
Vice President of AIMCO HOLDINGS QRS, INC., the corporation that executed the
foregoing instrument, and known to me to be the person who executed the
foregoing instrument on behalf of said corporation, said corporation being
known to me to be general partner of AIMCO HOLDINGS, L.P., a limited
partnership, which limited partnership is general partner of AIMCO
COPPERFIELD, L.P., a limited partnership, and which limited partnership is
general partner of COPPERFIELD PARTNERS, LTD., the limited partnership that
executed the foregoing instrument, and acknowledged to me that such
corporation executed the same as such general partner and that such limited
partnerships executed the same for the purposes and consideration therein
expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 18th day of April, 1997.
/s/ Isabelle Balakit Adams
----------------------------
Notary Public in and for the
District of Columbia
[Seal]
My commission Expires:
ISABELLE BALAKIT ADAMS
Notary Public, District of Columbia
My Commission Expires May 14, 2000
EXHIBIT A
Cooperfield
DESCRIPTION Of A TRACT OR PARCEL BEING 7.4489 ACRES OR 324.388 SQUARE FOOT
TRACT OF TRACT OF LAND SITUATED IN THE W.C.R.R. CO. SURVEY ABSTRACT 939 AND
THE J.W. BELL SURVEY ABSTRACT 1150, BEING THE SAME CALLED COPPERFIELD
APARTMENTS RECORDED IN FILM CODE NO. 372029 OF THE HARRIS COUNTY MAP RECORDS
ALSO BEING THE SAME TRACT CALLED PALAIS DE VILLE 7.4429 ACRES APARTMENT
SUBDIVISION RECORDED IN VOLUME 321. PAGE 122 OF THE HARRIS COUNTY MAP
RECORDS, BEING OUT OF UNRESTRICTED RESERVE T OF EASTON COMMONS SECTION TWO
RECORDED IN VOLUME 310, PAGE 80 OF THE HARRIS COUNTY MAP RECORDS, HARRIS
COUNTY, TEXAS, BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS
FOLLOWS:
BEGINNING AT A 3/4 INCH IRON PIPE FOUND MARKING THE SOUTHWEST END OF A 25
FOOT CUTBACK CURVE AT THE INTERSECTION OF THE SOUTHEAST RIGHT OF WAY LINE OF
EASTON COMMONS DRIVE (100 FEET WIDE AT THIS POINT) AND THE SOUTHWEST RIGHT OF
WAY LINE OF SUNBURY LANE (60 FOOT WIDE);
THENCE ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF 25.00 FEET, A DELTA OF
88 DEGREES 57 MINUTES 30 SECONDS, AND AN ARC LENGTH OF 38.82 FEET TO A 3/4
INCH IRON PIPE FOUND MARKING THE POINT OF TANGENCY ON THE WESTERLY RIGHT OF
WAY LINE OF SAID SUNBURY LANE;
THENCE CONTINUING ALONG THE SAID WESTERLY RIGHT OF WAY LINE OF SUNBURY LANE,
SOUTH 38 DEGREES 13 MINUTES AND 40 MINUTES EAST, 30.76 FEET TO A 3/4 INCH
IRON PIPE FOUND MARKING THE BEGINNING OF A CURVE TO THE RIGHT;
THENCE ALONG THE SAID CURVE TO THE RIGHT, BEING THE WESTERLY RIGHT OF WAY
LINE OF SAID SUNBURY LANE, HAVING A RADIUS OF 1,170.00 FEET, A DELTA OF 36
DEGREES 04 MINUTES 01 SECONDS (CALLED 36 DEGREES 02 MINUTES 30 SECONDS), AND
AN ARC LENGTH OF 736.50 FEET (CALLED 735.99 FEET) TO A 3/4 INCH IRON PIPE
FOUND MARKING THE POINT OF TANGENCY;
THENCE CONTINUING ALONG SAID WESTERLY RIGHT OF WAY LINE OF SUNBURY LANE,
SOUTH 02 DEGREES 09 MINUTES 39 SECONDS EAST (CALLED SOUTH 02 DEGREES 11
MINUTES 10 SECONDS EAST) 287.54 FEET (CALLED 287.31 FEET), TO A 5/8 INCH
IRON ROD FOUND MARKING THE BEGINNING OF A CURVE TO THE LEFT;
THENCE ALONG SAID CURVE TO THE LEFT, BEING ON THE SAID WESTERLY RIGHT OF WAY
LINE OF SUNBURY LANE, HAVING A RADIUS OF 392.17 FEET, A DELTA OF 08 DEGREES
08 MINUTES 15 SECONDS (CALLED 08 DEGREES 08 MINUTES 11 SECONDS), AND AN ARC
LENGTH OF 55.70 FEET (CALLED 55.69 FEET) TO A 3/4 INCH IRON PIPE FOUND
MARKING THE SOUTHEAST CORNER OF SAID PALAIS DE VILLE 7.4429 ACRE TRACT;
THENCE SOUTH 81 DEGREES 00 MINUTES 29 SECONDS WEST (CALLED SOUTH 80 DEGREES
59 MINUTES 07 SECONDS WEST), 96.48 FEET (CALLED 96.66 FEET), TO A 5/8 INCH
IRON ROD FOUND MARKING AN INTERIOR CORNER OF RESTRICTED RESERVE S OF SAID
EASTON COMMONS SECTION TWO, AND ALSO BEING THE SOUTHWEST CORNER OF THE
HEREIN DESCRIBED TRACT AND SAID PALAIS DE VILLE;
THENCE NORTH 18 DEGREES 02 MINUTES 19 SECONDS WEST (CALLED NORTH 18 DEGREES
03 MINUTES 51 SECONDS WEST), 114.51 FEET (CALLED 114.46 FEET), TO A 5/8 INCH
IRON FOUND CAPPED MARKING AN ANGLE POINT IN THE WESTERLY LINE OF SAID PALAIS
DE VILLE AND THE HEREIN DESCRIBED TRACT, BEING IN THE EASTERLY LINE OF SAID
RESTRICTED RESERVE S;
THENCE NORTH 38 DEGREES 53 MINUTES 18 SECONDS WEST (CALLED NORTH 38 DEGREES
54 MINUTES 56 SECONDS WEST), 702.07 FEET (CALLED 701.52 FEET), TO THE
NORTHWEST CORNER OF THE HEREIN DESCRIBED TRACT AND SAID PALAIS DE VILLE,
BEING ON THE NORTHEAST CORNER OF SAID RESTRICTED RESERVE S, ALSO BEING ON THE
SOUTHEASTERLY RIGHT OF WAY LINE OF SAID EASTON COMMONS DRIVE (60 FEET WIDE AT
THIS POINT), FROM WHICH A 5/8 INCH IRON ROD FOUND FOR REFERENCE BEARS NORTH
46 DEGREES 03 MINUTES WEST, 0.40 FEET;
THENCE ALONG THE SAID SOUTHEASTERLY RIGHT OF WAY LINE OF EASTON COMMONS
DRIVE, NORTH 15 DEGREES 38 MINUTES 32 SECONDS EAST, 173.20 FEET TO AN "X"
SET IN DRIVEWAY MARKING BEGINNING OF A CURVE TO THE RIGHT;
THENCE ALONG THE SAID CURVE TO THE RIGHT, BEING ON THE SAID SOUTHEASTERLY
RIGHT OF WAY LINE OF EASTON COMMONS DRIVE, HAVING A RADIUS OF 350.00 FEET,
A DELTA OF 37 DEGREES 10 MINUTES 19 SECONDS, AND AN ARC LENGTH OF 227.07
FEET TO A 5/8 INCH IRON PIPE FOUND MARKING THE POINT OF TANGENCY;
THENCE CONTINUING ALONG THE SAID SOUTHEASTERLY RIGHT OF WAY LINE OF EASTON
COMMONS DRIVE, NORTH 52 DEGREES 48 MINUTES 50 SECONDS EAST, 98.64 FEET TO THE
POINT OF BEGINNING, CONTAINING 7.4469 ACRES OR 324,388 SQUARE FEET OF LAND.
EXHIBIT "B" TO MULTIFAMILY DEED OF TRUST
AND FINANCING STATEMENTS
(Copperfield Apartments)
As used herein, the term "Debtor" shall mean and include the terms
"Mortgagor", "Grantor" and "Borrower"; and the term "Creditor" shall mean and
include the terms "Lender", "Mortgagee" and "Secured Party".
This Exhibit "B" is attached to, incorporated by reference in, and forms
a part of, certain documents (collectively, the "Security Documents"),
executed and delivered by Debtor in connection with the refinancing of the
Project (as hereinafter defined), including: (i) a Multifamily Deed of Trust,
Assignment of Rents and Security Agreement; and (ii) Financing Statements.
This Exhibit "B" refers to the following collateral, which may be now or
hereafter located on the premises of, relate to, or be used in connection
with, the acquisition or refinancing, construction, equipping, repair,
ownership, management or operation of a multifamily rental housing project
known as Copperfield Apartments (the "Project"), located in Harris County,
Houston, Texas.
1. All materials now owned or hereafter acquired by the Debtor and
intended for construction, reconstruction, alteration and repair of any
building, structure or improvement now or hereafter erected or placed on the
property described on Exhibit "A" (the "Property"), all of which materials
shall be deemed to be included within the Project immediately upon the
delivery thereof to the Project.
2. All of the walks, fences, plants, trees, shrubbery, driveways,
fixtures, machinery, apparatus, equipment, appliances, fittings, and other
goods and other personal property of every kind and description whatsoever,
now owned or hereafter acquired by the Debtor and attached to or contained in
and used or usable in connection with any present or future operation of the
Project, including, by way of example rather than of limitation, all
lighting, laundry, incinerating and power equipment; all engines, boilers,
machines, motors, furnaces, compressors and transformers; all generating
equipment; all pumps, tanks, ducts, conduits, wire, switches, electrical
equipment and fixtures, fans and switchboards; all telephone equipment; all
piping, tubing, plumbing equipment and fixtures; all heating, refrigeration,
air conditioning, cooling, ventilating, sprinkling, water, gas, power and
communications equipment, systems and apparatus; all water coolers, water
heaters and water closets; all fire prevention, alarm and extinguishing
systems and apparatus; all security and access control systems and apparatus;
all cleaning equipment; all lift, elevator and escalator equipment and
apparatus; all partitions, shades, blinds, awnings, screens, screen doors,
storm doors, storm windows, exterior and interior signs, antennas, gas
fixtures, bathtubs, washers, dryers, sinks, stoves, ranges, ovens,
refrigerators, garbage disposals, dishwashers, cabinets, mirrors, mantles,
pictures, panelling, floor coverings, carpets, rugs, curtains, curtain rods,
draperies and other furnishings and furniture installed or to be installed or
used or usable in the operation of any part of the Project or facilities
erected or to be erected in or upon the Property; and every renewal or
replacement thereof or articles in substitution therefor, whether or not the
same are now or hereafter attached to the Property in any manner; all except
for any right, title or interest therein owned by any tenant (it being agreed
that all personal property owned by the Debtor and placed by it on the
Property shall, so far as permitted by law, be deemed to be affixed to the
Property, appropriated to its use, and covered by each of the Security
Documents to which this Exhibit "B" is attached).
3. All of the Debtor's right, title and interest in and to any and all
judgments, awards of damages (including but not limited to severance and
consequential damages), payments, proceeds, settlements or other compensation
(collectively, the "Awards") heretofore or hereafter made, including interest
thereon, and the right to receive the same, as a result of, in connection
with, or in lieu of (i) any taking of the Property or any part thereof by the
exercise of the power of condemnation or eminent domain, or the police power,
(ii) any change or alteration of the grade of any street, or (iii) any other
injury to or decrease in the value of the Property or any part thereof
(including but not limited to destruction or decrease in value by fire or
other casualty), all of which Awards, rights thereto and shares therein are
hereby assigned to the Creditor, who is hereby authorized to collect and
receive the proceeds thereof and to give proper receipts and acquittances
therefor and to apply, at its option, the net proceeds thereof, after
deducting expenses of collection, as a credit upon any portion, as selected
by the Creditor, of the indebtedness secured by the Security Documents.
4. All of the Debtor's right, title and interest in and to any and all
payments, proceeds, settlements or other compensation heretofore or hereafter
made, including any interest thereon, and the right to receive the same from
any and all insurance policies covering the Property or any portion thereof,
or any of the other property described herein.
5. The interest of the Debtor in and to all of the rents, royalties,
mineral, oil and gas rights and profits, water, water rights and water stock
appurtenant to the Property, issues, profits, revenues, income, tenant
assistance payments, if any, and other benefits of the Property, or arising
from the use or enjoyment of all or any portion thereof, or from any lease,
agreement or tenant assistance payment contract, if any, pertaining thereto,
and all right, title and interest of the Debtor in and to, and remedies
under, all contract rights, accounts receivable and general intangibles
arising out of or in connection with any and all leases and subleases of the
Property, or any part thereof, and of the other property described herein, or
any part thereof, both now in existence or hereafter entered into, together
with all proceeds (cash and non-cash) thereof; and including, without
limitation, to the extent permitted by law, all cash or securities deposited
thereunder to secure performance by the lessees of their obligations
thereunder.
6. All of the Debtor's rights, options, powers and privileges in and
to (but not the Debtor's obligations and burdens under) any construction
contract, architectural and engineering agreements and management contract
pertaining to construction, development, ownership, equipping and management
of the Property and all of the Debtor's right, title and interest in and to
(but not the Debtor's obligations and burdens under) all architectural,
engineering and similar plans, specifications, drawings, reports, surveys,
plats, permits and the like, contracts for construction, operation and
maintenance of, or provision of services to, the Property or any of the other
property described herein, and all sewer taps and allocations, agreements for
utilities, bonds and the like, all relating to the Property.
7. All intangible personal property, accounts, licenses, permits,
instruments, contract rights, and chattel paper of the Debtor derived from,
or generated or required by, the Property, including but not limited to cash;
accounts receivable; bank accounts; certificates of deposit; securities;
promissory notes; rents; tenant assistance payments (if any); rights (if any)
to amounts held in escrow; insurance proceeds; condemnation rights; deposits;
judgments, liens and causes of action; warranties and guarantees (but not
including syndication proceeds generated by sale of interests in the Debtor).