MULTIFAMILY NOTE
(Wickertree)
$4,231,700.00 As of October 31, 1997
FOR VALUE RECEIVED, AIMCO/WICKERTREE, L.P., a Delaware limited partnership,
having its principal place of business at 1873 S. Bellaire Street, 17th Floor,
Denver Colorado 80222 (hereinafter referred to as "Borrower"), promises to pay
to the order of GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation,
having its principal place of business at 650 Dresher Road, Horsham,
Pennsylvania 19055-8015 (hereinafter referred to as "Lender"), the principal sum
of FOUR MILLION TWO HUNDRED THIRTY-ONE THOUSAND SEVEN HUNDRED AND NO/100 DOLLARS
($4,231,700.00), with interest on the unpaid principal balance to be computed
from the date of this Multifamily Note (together with the Addendum to
Multifamily Note attached hereto and made a part hereof, the "Note") at
the Applicable Interest Rate (hereinafter defined), in lawful money of the
United States of America which shall at the time of payment be legal tender in
payment of all debts and dues, public and private.
1. PAYMENT OF PRINCIPAL AND INTEREST.
A. The principal and interest under this Note shall be payable at
the office of Lender as set forth above, Attn: Mr. Barry Moore, or at such other
place as Lender may from time to time designate in writing, in equal
consecutive monthly installments of $32,856.60 each, on the first day of
December, 1997, and on the first day of each calendar month thereafter up to and
including the first day of October, 2017 (or if such day is not a Business Day
(hereinafter defined) the next Business Day thereafter); and the balance of said
principal sum together with accrued and unpaid interest and any other amounts
due under this Note, the Instrument and the other Loan Documents (each as
hereinafter defined) shall be due and payable on the 1st day of November, 2017
(the "Maturity Date"). The term "Business Day" shall mean a day other than a
Saturday, a Sunday or any other day on which Lender is not open for business.
B. Interest on the principal sum of this Note shall accrue in
arrears and be calculated on the basis of a three hundred sixty (360) day year
composed of twelve (12) months of thirty (30) days each except that interest due
and payable for a period less than a full month shall be calculated by
multiplying the actual number of days elapsed in such period by a daily rate
based on said 360 day year. In computing the number of days during which
interest accrues, the day on which funds are initially advanced shall be
included regardless of the time of day such advance is made, and the day on
which funds are repaid shall be included unless repayment is credited prior to
close of business. Payments in federal funds immediately available in the place
designated for payment which are received by Lender prior to 2:00 p.m. local
time at said place of payment shall be credited prior to close of business,
while other payments may, at the option of Lender, not be credited until
immediately available to Lender in federal funds in the place designated for
payment prior to 2:00 p.m. local time at said place of payment on a day on which
Lender is open for business. On the date of the closing of the loan evidenced by
this Note, Borrower shall pay to Lender an interest payment equal to the product
of the number of days remaining in the month from the date on which the loan is
closed multiplied by the interest per diem. Payments under this Note shall be
applied first to the payment of interest and other costs and charges due in
connection with this Note or the Debt (as hereinafter defined), as Lender may
determine in its sole discretion, and the balance applied toward the reduction
of the principal sum in inverse order of maturity (but
such application shall not reduce the amount of the fixed monthly installments
required to be paid pursuant to Section 1.A above). All amounts due under this
Note shall be payable without set off, counterclaim or any other deduction
whatsoever.
C. The term "Applicable Interest Rate" as used in this Note shall
mean a rate of 7.09% per annum.
2. DEFAULT.
A. If any sum payable under this Note is not paid within five (5)
calendar days after the date on which it is due, Borrower shall pay to Lender
upon demand an amount equal to the lesser of five percent (5%) of such unpaid
sum or the maximum amount permitted by applicable law to defray the expenses
incurred by Lender in handling and processing such delinquent payment and to
compensate Lender for the loss of the use of such delinquent payment and such
amount shall be secured by the Instrument and the other Loan Documents.
B. The entire outstanding principal sum of this Note, together with
all interest accrued and unpaid thereon and all other sums due under the
Instrument, the other Loan Documents and this Note (all such sums hereinafter
collectively referred to as the "Debt"), or any portion thereof, shall without
notice become immediately due and payable if (i) any payment required under this
Note or the Debt is not paid within five (5) calendar days after the date when
due; or (ii) any representation or warranty of Borrower or any Key Principal, or
any member, general partner, principal or beneficial owner of any of the
foregoing, made herein or in any guaranty, or in any certificate, report,
financial statement or other instrument or document furnished to Lender shall
have been false or misleading in any material respect when made; or (iii) except
for the specific defaults set forth in this Section B, any other default
hereunder or under any of the other Loan Documents by Borrower, which default is
not cured (a) in the case of any default which can be cured by the payment of a
sum of money, within ten (10) days after written notice from Lender to Borrower,
or (b) in the case of any other default, within thirty (30) days after written
notice from Lender to Borrower; provided that if such default cannot reasonably
be cured within such thirty (30) day period and Borrower shall have commenced to
cure such default within such thirty (30) day period and thereafter diligently
and expeditiously proceeds to cure the same, such thirty (30) day period shall
be extended for so long as it shall require Borrower in the exercise of due
diligence to cure such default, it being agreed that no such extension shall be
for a period in excess of one hundred twenty (120) days, unless, only in the
case of cures that require construction or remedial work, such cure cannot with
diligence be completed within such one hundred twenty (120 day period, in which
case such period shall be extended for an additional one hundred twenty (120)
days; or (iv) the Borrower breaches or fails to comply with (a) Paragraph J of
the Rider to Multifamily Instrument (the "Rider") as amended by Section D of the
Supplemental Rider to the Multifamily Instrument (the "Supplemental Rider"), or
(b) Paragraph F of the Rider as amended by Section H of the Supplemental Rider;
or (v) Borrower or any Key Principal shall make an assignment for the benefit of
creditors or if Borrower shall generally not be paying its debts as they become
due; or (vi) the Policies (defined in the Supplemental Rider to Multifamily
Instrument) are not kept in full force and effect, or; (vii) (a) Borrower or any
Key Principal shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, conservatorship or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to it or its
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debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or the Borrower or any Key Principal shall make a general assignment for
the benefit of its creditors'; or (b) there shall be commenced against Borrower
or any Key Principal any case, proceeding or other action of a nature referred
to in clause (a) above which (A) results in the entry of an order for relief or
any such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of ninety (90) days; or (c) there shall be commenced
against the Borrower or any Key Principal any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in the
entry of any order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within ninety (90) days from the
entry thereof; or (d) the Borrower or any Key Principal shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (a), (b), or (c) above; or (e) the Borrower
or any Key Principal shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due (hereinafter each
an "Event of Default"). Time is of the essence in this Note, the Instrument, and
the other Loan Documents. All of the terms, covenants and conditions contained
in the Instrument and the other Loan Documents are hereby made part of this Note
to the same extent and with the same force as if they were fully set forth
herein. In the event that Lender employs counsel to collect the Debt or to
protect or foreclose the security hereof, Borrower also agrees to pay on demand
all reasonable costs of collection incurred by Lender, including reasonable
attorneys' fees for the services of counsel whether or not suit be brought.
C. Borrower does hereby agree that upon the occurrence of an Event
of Default or upon the failure of Borrower to pay the Debt in full on the
Maturity Date, or upon the failure of Borrower to pay the Debt on the date
specified in any notice given pursuant to Section A of the attached Addendum to
Multifamily Note, Lender shall be entitled to receive and Borrower shall pay
interest on the entire unpaid principal sum at the Applicable Interest Rate plus
five percent (5%) (the "Default Rate"); provided, however, that in the event
Lender permits Borrower to cure such Event of Default after expiration of any
applicable notice or grace period, then the rate of interest on the unpaid
principal balance of this Note shall be the Applicable Interest Rate and shall
be computed at the Applicable Interest Rate from and after the date such Event
of Default is cured. The Default Rate shall be applicable from the occurrence of
the Event of Default until the earlier to occur of the actual receipt and
collection of the Debt or, if permitted by Lender, the date such Event of
Default is cured. This charge shall be added to the Debt, and shall be deemed
secured by the Instrument. This clause, however, shall not be construed as an
agreement or privilege to extend the date of the payment of the Debt, nor as a
waiver of any other right or remedy accruing to Lender by reason of the
occurrence of any Event of Default. In the event the Default Rate would
otherwise exceed the maximum rate permitted by applicable law, the Default Rate
shall be the maximum rate permitted by applicable law. Borrower agrees to an
effective rate of interest stated above plus any additional rate of interest
resulting from any other charges in the nature of interest to be paid by or on
behalf of Borrower, or any other benefit received or to be received by Lender,
in connection with the Note.
3. SECURITY. This Note is secured by the Instrument and the other Loan
Documents. The terms "Instrument" and other "Loan Documents" have the meanings
ascribed to those terms in the Addendum to Multifamily Note attached hereto
and incorporated herein by this referenced.
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4. GENERAL
A. This Note is subject to the express condition that at no time
shall Borrower be obligated or required to pay interest on the Debt or any
portion thereof at a rate which could subject Lender to either civil or criminal
liability as a result of being in excess of the maximum interest rate which
Borrower is permitted by applicable law to contract or agree to pay. If by the
terms of this Note, Borrower is at any time required or obligated to pay
interest on the Debt or any portion thereof at a rate in excess of such maximum
rate, the rate of interest under this Note shall be deemed to be immediately
reduced to such maximum rate and the interest payable shall be computed at such
maximum rate and all prior interest payments in excess of the maximum rate shall
be deemed to have been payments in reduction of principal and not on account of
the interest due hereunder.
B. This Note may not be modified, amended, waiver, extended,
changed, discharged or terminated orally or by any act or failure to act on the
part of Borrower or Lender, but only by an agreement in writing signed by the
party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
C. Borrower and all others who may become liable for the payment of
all or any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, protest and notice of protest, notice of non-
payment and notice of intent to accelerate the maturity hereof (and of such
acceleration). Borrower hereby waives the benefits of the right to assert any
defense, affirmative defense, or file a cause of action based on the failure of
the Lender to comply with Section 44-6852, Arizona Revised Statutes. No release
of any security for the Debt or extension of time for payment of this Note or
any installment hereof, and no alteration, amendment or waiver of any provision
of this Note, the Instrument and the other Loan Documents made by agreement
between Lender and any other person or party shall release, modify, amend,
waive, extend, change, discharge, terminate or affect the liability of Borrower,
and any other who may become liable for the payment of all or any part of the
Debt, under this Note, the Instrument and the other Loan Documents. Lender may
release any guarantor or indemnitor of the Debt from liability, in every
instance without the consent of the Borrower hereunder, and without waiving any
rights the Lender may have hereunder or by virtue of the laws of the State in
which the Property (as defined in the Instrument) is located or any other state
of the United States.
D. Borrower is and shall be obligated to pay principal, interest and
any and all other amounts which become payable hereunder or under the other Loan
Documents absolutely and unconditionally and without any abatement,
postponement, diminution or deduction and without any reduction for counterclaim
or setoff. In the event that at any time any payment received by Lender
hereunder shall be deemed by a court of competent jurisdiction to have been a
voidable preference or fraudulent conveyance under any bankruptcy, insolvency or
other debtor relief law, then the obligation to make such payment shall survive
any cancellation or satisfaction of this Note or return thereof to Borrower and
shall not be discharged or satisfied with any prior payment thereof or
cancellation of this Note, but shall remain a valid and binding obligation
enforceable in accordance with the terms and provisions hereof, and such payment
shall be immediately due and payable upon demand.
E. This Note shall be interpreted, construed and enforced according
to the laws of the State where the Property is located. The terms and
provisions hereof shall be binding upon and inure to the benefit of Borrower and
Lender and their respective
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heirs, executors, legal representatives, successors, successors-in-title and
assigns, whether by voluntary action of the parties or by operation of law. As
used herein, the terms "Borrower" and "Lender" shall be deemed to include their
respective heirs, executors, legal representatives, successors, successors-in-
title and assigns, whether by voluntary action of the parties or by operation of
law. If Borrower consists of more than one person or entity, each shall be
jointly and severally liable to perform the obligations of Borrower under this
Note. All personal pronouns used herein, whether used in the masculine,
feminine or neuter gender, shall include all other genders; the singular shall
include the plural and vice versa. Title or articles and sections are for
convenience only and in no way define, limit, amplify or describe the scope or
intent of any provisions hereof. This Note, the Instrument and the other Loan
Documents contain the entire agreements between the parties hereto relating to
the subject matter hereof and thereof and all prior agreements relative hereto
and thereto which are not contained herein or therein are terminated.
F. BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN
CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN
EVIDENCED BY THIS NOTE, THE APPLICATION FOR THE LOAN EVIDENCED BY THIS NOTE,
THIS NOTE, THE INSTRUMENT OR THE OTHER LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS
OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
G. If any term of this Note or any application thereof shall be
invalid or unenforceable, the remainder of this Note and any other application
of the term shall not be affected thereby.
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IN WITNESS WHEREOF, Borrower has duly executed this Note the day and year
first above written.
BORROWER:
AIMCO/WICKERTREE, L.P.,
a Delaware limited partnership
By: AIMCO/WICKERTREE, INC., a
Delaware corporation
By: /s/ Harry Alcock
--------------------------------
Harry Alcock
Vice President
ADDENDUM TO MULTIFAMILY NOTE
(FOR USE WITH EXCEPTIONS TO NON-RECOURSE GUARANTY)
THIS ADDENDUM TO MULTIFAMILY NOTE (the "Addendum") is made as of the
31st day of October, 1997, and is incorporated into and shall be deemed to
amend and supplement the Multifamily Note (the "Multifamily Note") made by
the undersigned (the "Borrower") to GMAC COMMERCIAL MORTGAGE CORPORATION and
its successors, assigns and transferees (the "Lender"), dated the same date
as this Addendum (the Multifamily Note as amended and supplemented by this
Addendum, any other addendum to the Multifamily Note, and any future
amendments to the Multifamily Note is referred to as the "Note"). The debt
evidenced by the Note is secured by a Multifamily Mortgage, Deed of Trust or
Deed to Secure Debt of the same date (the "Multifamily Instrument"), covering
the property described in the Multifamily Instrument and defined therein as
the "Property".
This Property is located entirely within the state identified in Exhibit A to
the Multifamily Instrument (the "Property Jurisdiction"). The Multifamily
Instrument is amended and supplemented by the Rider to Multifamily Instrument
(the "Rider") and any other rider to Multifamily Instrument given by Borrower to
Lender and dated the same date as the Multifamily Instrument. (The Multifamily
Instrument as amended and supplemented by the Rider and any other rider to the
Multifamily Instrument and any future amendments to the Instrument is referred
to as the "Instrument".)
The term "Loan Documents" when used in this Addendum shall mean, collectively,
the following documents: (i) the Instrument, (ii) the Note, and (iii) all other
documents or agreements, including any Collateral Agreements (as defined in the
Rider) or O&M Agreement (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.
The covenants and agreements of this Addendum, and the covenants and agreements
of any other addendum to the Multifamily Note, shall be incorporated into and
shall amend and supplement the covenants and agreements of the Multifamily Note
as if this Addendum and the other addenda were a part of the Multifamily Note,
and all references to the Note in the Loan Documents shall mean the Note as so
amended and supplemented. Any conflict between the provisions of the Multifamily
Note and this Addendum shall be resolved in favor of this Addendum.
ADDITIONAL COVENANTS. In addition to the covenants and agreements made in
the Multifamily Note Borrower and Lender further covenant and agree as follows:
A. PREPAYMENTS
1. YIELD MAINTENANCE PERIOD
During the first 19.0 years of the Note term beginning with the date of the
Note and upon giving Lender 60 days prior written notice, Borrower may prepay
the entire unpaid principal balance of the Note on the last Business Day before
a scheduled monthly payment date by paying, in addition to the entire unpaid
principal balance, accrued interest and any other sums due Lender at the time of
prepayment, a prepayment premium equal to the greater of:
(a) 1% of the entire unpaid principal balance of the Note, or
(b) The product obtained by multiplying (1) the entire unpaid principal
balance of the Note at the time of prepayment, times (2) the
difference obtained by subtracting from the interest rate on the Note
the Applicable Treasury Yield, as such yield is reported on the
Bloomberg display page (hereinafter "Bloomberg") as the bid side yield
at 4:00pm New York City time on the fifth Business Day preceding (x)
the date notice of prepayment is given to Lender where prepayment is
voluntary, or (y) the date Lender accelerates the loan, times (3) the
present value factor calculated using the following formula:
n
1 - (1 + r)
-----------
r
[r = Applicable Treasury Yield
n = the number of years, and any fraction thereof, remaining
between the prepayment date and the maturity date]
Applicable Treasury Yield: Shall mean the bid side yield on interpolated
U.S. Treasury Security for the average life of the loan calculated using the
interest rate on the Note, the scheduled remaining payments on the Note from and
after the date of prepayment to and including the maturity date of the loan, and
the principal balance of the loan being prepaid.
If the Applicable Treasury Yield is no longer available on Bloomberg,
Lender shall determine such Applicable Treasury Yield from another source
selected by Lender.
Page 1
Except as provided in paragraph A.3 of this Addendum, no partial
prepayments are permitted. Such prepayment premium shall be due and payable if
the Loan is prepaid for any reason during the first 19.0 years of the Note,
including without limitation, a prepayment arising because of an acceleration of
the Loan.
2. AFTER YIELD MAINTENANCE PERIOD
After the expiration of the Yield Maintenance Period and upon giving Leader
60 days prior written notice, Borrower may prepay the entire unpaid principal
balance of the Note on the last Business Day before a scheduled monthly payment
date by paying, in addition to the entire unpaid principal balance, accrued
interest and any other sums due Lender at the time of prepayment. No prepayment
premium shall be due for any prepayment in full after the expiration of the
Yield Maintenance Period.
Except as provided in paragraph A.3 of this Addendum, no partial
prepayments are permitted.
3. PARTIAL PREPAYMENTS
Borrower shall have no right to make a partial prepayment of the
outstanding indebtedness during the Note term. However, in the event that
Lender shall require a partial prepayment of the outstanding indebtedness
after a default under the Note, the Instrument or any of the other Loan
Documents, by applying funds held by Lender pursuant to any Collateral
Agreement (as defined in Uniform Covenant 2B of the Instrument) against the
indebtedness secured by the Instrument, or, if Lender shall for any other
reason accept a partial prepayment by Borrower of the outstanding
indebtedness, except as otherwise provided in paragraph A.4 of this Addendum,
a prepayment premium shall be due and payable to Lender as follows:
(a) AFTER YIELD MAINTENANCE PERIOD. No prepayment premium shall be due for
any partial prepayment made by Borrower in accordance with the
provisions of the preceding sentence after the expiration of the Yield
Maintenance Period.
(b) DURING YIELD MAINTENANCE PERIOD. If Lender shall require or accept a
partial prepayment during the Yield Maintenance Period, the partial
prepayment shall be made on the last Business Day before a scheduled
monthly payment date and a prepayment premium shall be due and payable
to Lender equal to the greater of:
(i) 1% of the amount of principal being prepaid, or
(ii) the product obtained by multiplying (A) the amount of the
principal which is being prepaid, times (B) the difference
obtained by subtracting from the interest rate on the Note the
yield rate (the "Partial Prepayment Yield Rate") on the Specified
U.S. Treasury Security, as the Partial Prepayment Yield Rate is
reported in the WALL STREET JOURNAL on the fifth Business Day
preceding (1) the day Lender accelerates the loan (in connection
with any partial prepayment made in connection with an
acceleration of the loan), or (2) the day Lender applies funds
held under any Collateral Agreement (other than in connection
with an acceleration of the loan), times (C) the present value
factor calculated using the following formula:
n
l -(1 + y)
---------
y
[y = Partial Prepayment Yield Rate
n = the number of years, and any fraction thereof,
remaining between the prepayment date and the
expiration of the Yield Maintenance Period]
When the total amount to be applied toward the unpaid principal balance of
the loan and the prepayment premium is known, but the amounts to be allocated
toward the unpaid principal balance of the loan and the prepayment premium,
respectively, are unknown, the Lender shall determine the allocation between the
prepaid principal amount and the prepayment premium as follows:
Given: a = total amount to be applied
b = prepaid principal amount
c = prepayment premium
N = note rate
n
F = present value factor = 1 - (1 + y)
------------
y
["y" and "n" have the same meanings as set forth in subparagraph
(ii) above]
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Then: a = b + c
b = a
-----------
F (N-y) + l
c = a-b
Except as provided in the next sentence, any partial prepayment of the
outstanding indebtedness shall not extend the due date of any subsequent monthly
installments or change the amount of such installments, unless Lender shall
otherwise agree in writing. Upon any partial prepayment, Lender shall have the
option, in its sole and absolute discretion, to recast the monthly installment
due under the Note so that the maturity date of the Note shall remain the same.
4. PREMIUM DUE WHETHER VOLUNTARY OR INVOLUNTARY PREPAYMENT; INSURANCE
AND CONDEMNATION PROCEEDS
Borrower shall pay the prepayment premium due under this paragraph A
whether the prepayment is voluntary or involuntary (in connection with Lender's
acceleration of the unpaid principal balance of the Note) or the Instrument is
satisfied or released by foreclosure (whether by power of sale or judicial
proceeding), deed in lieu of foreclosure or by any other means. Notwithstanding
any other provision herein to the contrary, Borrower shall not be required to
pay any prepayment premium in connection with any prepayment occurring as a
result of the application of insurance proceeds or condemnation awards under the
Instrument.
5. NOTICE; BUSINESS DAY
Any notice to Lender provided for in this Addendum shall be given in the
manner provided 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.
B. BORROWER'S EXCULPATION
Subject to the provisions of paragraph C and notwithstanding any other
provision in the Note or Instrument, the personal liability of Borrower, any
general partner of Borrower (if the Borrower is a partnership), and any "Key
Principal" (collectively, the entities defined as Key Principal in Uniform
Covenant 19(a)( 1) of the Security Instrument) 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 or pledged under any Collateral Agreement
(as defined in Uniform Covenant 2B of the Instrument) 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 tine 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 Instrument or any other Loan Document
(including but not limited 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 C, Lender shall not seek (a) any judgment
for a deficiency against Borrower, any general partner of Borrower (if Borrower
is a partnership) or any Key Principal, or Borrower's or any general partner's
or Key Principal's heirs, legal representatives, successors or assigns, in any
action to enforce any right or 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.
C. EXCEPTIONS TO NON-RECOURSE LIABILITY
If, without obtaining the 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 sums 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, in violation of the terms of the Instrument or,
(iii) Borrower shall violate the single asset covenant of 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 event shall
continue for 30 days, paragraph B 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 or 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 B, 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 attorneys fees) resulting from (A) fraud or material
misrepresentation by Borrower or Borrower's agents or employees or any Key
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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 or other sums or payments received by or on behalf of the
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 any other sums due under the Instrument and all other Loan
Document (including but not limited to deposit or reserves payable under any
Collateral Agreement), (D) Borrower's failure to pay transfer fees and charges
due Lender 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, 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 the disbursement of such sums), books and
records relating to the Property, (F) or relating to Hazardous Materials or
compliance 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.
No provision of paragraphs B or C 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.
D. BUSINESS, COMMERCIAL OR INVESTMENT PURPOSE
Borrower represents that the Loan evidenced by the Note is being made
solely for business, commercial or investment purposes.
E. GOVERNING LAW
1. CHOICE OF LAW
The validity of the Note, and the other Loan Documents, each of their terms
and provisions, and the rights and obligations of Borrower under the Note, 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.
2. CONSENT TO JURISDICTION
Borrower irrevocably consents to the exclusive jurisdiction of any and all
state and federal courts with jurisdiction in the Property Jurisdiction over
Borrower and Borrower's assets. Borrower agrees that such assets shall be used
to first 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 state and federal courts and
authorities with jurisdiction in the Property Jurisdiction shall have exclusive
jurisdiction over ail controversies which may arise under or in relation to 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.
F. SUCCESSORS AND ASSIGNS
The provisions of the Note, the Instrument, and all other Loan Documents
shall be binding on the successors and assigns, including, but not limited to,
any receiver, trustee, representative or other person appointed under foreign or
domestic bankruptcy, receivership, or similar proceedings of Borrower and any
person having an interest in Borrower.
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BY SIGNING BELOW, Borrower accepts and agrees to the covenants and
agreements contained in this Addendum.
AIMCO/WICKERTREE, L.P.,
a Delaware limited partnership
By: AIMCO/Wickertree, Inc., a
Delaware corporation
By: /s/ Harry Alcock
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Harry Alcock
Vice President
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