Exhibit 10.84
Prepared by, and after recording
return to:
Brian J. Iwashyna, Esquire
Troutman Sanders LLP
P.O. Box1122
Richmond, Virginia
23218-1122
AMENDED AND RESTATED
MULTIFAMILY DEED OF TRUST,
ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
(RECAST TRANSACTION)
(COLORADO – REVISION DATE 05-11-2004)
Old FHLMC Loan No. 002652560
New FHLMC Loan No. 504180312
Tamarac Village
AMENDED AND RESTATED
MULTIFAMILY DEED OF TRUST,
ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
(RECAST TRANSACTION)
THIS AMENDED AND RESTATED MULTIFAMILY DEED OF TRUST, ASSIGNMENT OF
RENTS AND SECURITY AGREEMENT (RECAST TRANSACTION) (the "
Instrument ") is made to be effective as of this 5th day of
October, 2009, between TAMARAC VILLAGE, LLC , a limited
liability company organized and existing under the laws of Delaware
whose address is c/o AIMCO, 4582 South Ulster Street Parkway, Suite
1100, Denver, Colorado 80237 as trustor (" Borrower ") and
FEDERAL HOME LOAN MORTGAGE CORPORATION , as beneficiary ("
Lender ").
RECITALS
A.
Consolidated Capital
Institutional Properties/3, a California limited partnership,
predecessor in interest to Consolidated Capital Institutional
Properties/3, LP, a Delaware limited partnership (the “
Original Borrower ”), is the maker of a Multifamily
Note (the " Note "), dated as of June 27, 2001, in the
original principal amount of Twenty-One Million and 00/100 Dollars
($ 21,000,000.00 ),
evidencing a loan (the " Loan ") to Original Borrower in
such amount from GMAC Commercial Mortgage Corporation, a California
corporation (the " Original Lender ").
B.
The Note is secured by that
certain Multifamily Deed of Trust, Assignment of Rents, and
Security Agreement dated as of June 27, 2001, from Original
Borrower, as grantor, to Original Lender, as grantee, recorded in
the Land Records of Denver County (the “ Land Records
”) at Reception No. 2001107080 (the " Instrument
"). The Instrument encumbers, among other things, Original
Borrower's interest in the land described in Exhibit A to
the Instrument.
C.
Pursuant to a Limited Guaranty
dated as of June 27, 2001, AIMCO Properties, L.P., a
Delawarelimited partnership,
guaranteed some or all of Original Borrower’s obligations
under the terms of the Note and the Instrument.
D.
Original Lender (i) endorsed
the Note to Lender and (ii) assigned the Instrument to Lender by
Assignment of Security Instrument dated as of June 27, 2001 and
recorded in the Land Records of Denver County at Reception No.
2001123386.
E.
Pursuant to an Assumption
Agreement of even date herewith, Borrower assumed all of Original
Borrower’s rights, obligations and liabilities created or
arising under the Note and Instrument.
F.
Borrower has confirmed to
Lender that Borrower has no defenses or offsets of any kind against
any of the indebtedness due under the Note.
G.
By Amended and Restated
Multifamily Note dated effective as of the date of this Amended and
Restated Instrument, Borrower and Lender have amended and restated
the Note so as to, among other things, (i) reflect an aggregate
current unpaid balance of Fifteen Million Eight Hundred Three
Thousand Six Hundred Thirteen and 00/100 Dollars ($15,803,613.00),
and (ii) amend the terms of payment. Borrower and Lender now
also desire to amend and restate the Instrument as provided
below.
NOW, THEREFORE, in consideration of these
premises, and other good and valuable consideration, the receipt
and sufficiency of which are acknowledged, the parties agree that
the Instrument is amended and restated in its entirety in the form
attached hereto and made a part hereof.
FHLMC Loan No. 504180312
Tamarac Village
MULTIFAMILY DEED OF TRUST,
ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT
(COLORADO – REVISION DATE 05-11-2004)
THIS MULTIFAMILY DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT (the " Instrument ") is made to be effective as of
this 5th day of October, 2009 by TAMARAC VILLAGE, LLC , a
limited liability company organized and existing under the laws of
Delaware whose address is c/o AIMCO, 4582 South Ulster Street
Parkway, Suite 1100, Denver, Colorado 80237 as trustor ("
Borrower "), to the PUBLIC TRUSTEE OF DENVER
COUNTY , as trustee (" Trustee "), for the benefit of
CAPMARK BANK , an industrial bank organized and existing
under the laws of Utah, whose address is 6955 Union Park Center,
Suite 330, Midvale, Utah 84047, Attn: President, as
beneficiary (" Lender "), with a copy to Capital Finance
Inc., 116 Welsh Road, Horsham, Pennsylvania 19044, Attention:
Servicing – Executive Vice President. Borrower's
organizational identification number, if applicable, is
4732119.
Borrower, in consideration of the Indebtedness and the trust
created by this Instrument, irrevocably grants, conveys and assigns
to Trustee, in trust, with power of sale, all right, title and
interest of the Borrower in the Mortgaged Property, including the
Land located in the County of Denver, State of Colorado and
described in Exhibit A attached to this Instrument.
TO SECURE TO LENDER the repayment of the Indebtedness evidenced by
Borrower’s Multifamily Note payable to Lender, dated as of
the date of this Instrument, and maturing on July 1, 2021 (the "
Maturity Date "), in the principal amount of $15,803,613.00
and all renewals, extensions and modifications of the Indebtedness,
and the performance of the covenants and agreements of Borrower
contained in the Loan Documents.
Borrower represents and warrants that Borrower is lawfully seized
of the Mortgaged Property and has the right, power and authority to
grant, convey and assign the Mortgaged Property, and that the
Mortgaged Property is unencumbered, except as shown on the schedule
of exceptions to coverage in the title policy issued to and
accepted by Lender contemporaneously with the execution and
recordation of this Instrument and insuring Lender's interest in
the Mortgaged Property (the " Schedule of Title Exceptions
"). Borrower covenants that Borrower will warrant and defend
generally the title to the Mortgaged Property against all claims
and demands, subject to any easements and restrictions listed in
the Schedule of Title Exceptions.
UNIFORM COVENANTS
REVISION DATE 02-15-2008
Covenants. In consideration of the mutual promises
set forth in this Instrument, Borrower and Lender covenant and
agree as follows:
1.
DEFINITIONS.
The
following terms, when used in this Instrument (including when used
in the above recitals), shall have the following
meanings:
(a)
"
Attorneys' Fees and
Costs " means
(i) fees and out‑of‑pocket costs of Lender's and
Loan Servicer's attorneys, as applicable, including costs of
Lender's and Loan Servicer's in-house counsel, support staff costs,
costs of preparing for litigation, computerized research, telephone
and facsimile transmission expenses, mileage, deposition costs,
postage, duplicating, process service, videotaping and similar
costs and expenses; (ii) costs and fees of expert witnesses,
including appraisers; and (iii) investigatory
fees.
(b)
"
Borrower
" means all
persons or entities identified as "Borrower" in the first paragraph
of this Instrument, together with their successors and
assigns.
(c)
"
Business Day
"
means any day other than a Saturday, a Sunday or any other day on
which Lender or the national banking associations are not open for
business.
(d)
"
Collateral
Agreement " means any
separate agreement between Borrower and Lender for the purpose of
establishing replacement reserves for the Mortgaged Property,
establishing a fund to assure the completion of repairs or
improvements specified in that agreement, or assuring reduction of
the outstanding principal balance of the Indebtedness if the
occupancy of or income from the Mortgaged Property does not
increase to a level specified in that agreement, or any other
agreement or agreements between Borrower and Lender which provide
for the establishment of any other fund, reserve or
account.
(e)
"
Controlling
Entity " means an
entity which owns, directly or indirectly through one or more
intermediaries, (i) a general partnership interest or a
Controlling Interest of the limited partnership interests in
Borrower (if Borrower is a partnership or joint venture),
(ii) a manager's interest in Borrower or a Controlling
Interest of the ownership or membership interests in Borrower (if
Borrower is a limited liability company), (iii) a Controlling
Interest of any class of voting stock of Borrower (if Borrower is a
corporation), (iv) a trustee's interest or a Controlling
Interest of the beneficial interests in Borrower (if Borrower is a
trust), or (v) a managing partner's interest or a Controlling
Interest of the partnership interests in Borrower (if Borrower is a
limited liability partnership).
(f)
"
Controlling
Interest " means
(i) 51 percent or more of the ownership interests in an
entity, or (ii) a percentage ownership interest in an entity
of less than 51 percent, if the owner(s) of that interest
actually direct(s) the business and affairs of the entity
without the requirement of consent of any other party. The
Controlling Interest shall be deemed to be 51 percent unless
otherwise stated in Exhibit B.
(g)
"
Environmental
Permit " means any
permit, license, or other authorization issued under any Hazardous
Materials Law with respect to any activities or businesses
conducted on or in relation to the Mortgaged Property.
(h)
"
Event of
Default " means the
occurrence of any event listed in Section 22.
(i)
"
Fixtures
" means all
property owned by Borrower which is so attached to the Land or the
Improvements as to constitute a fixture under applicable law,
including: machinery, equipment, engines, boilers, incinerators,
installed building materials; systems and equipment for the purpose
of supplying or distributing heating, cooling, electricity, gas,
water, air, or light; antennas, cable, wiring and conduits used in
connection with radio, television, security, fire prevention, or
fire detection or otherwise used to carry electronic signals;
telephone systems and equipment; elevators and related machinery
and equipment; fire detection, prevention and extinguishing systems
and apparatus; security and access control systems and apparatus;
plumbing systems; water heaters, ranges, stoves, microwave ovens,
refrigerators, dishwashers, garbage disposers, washers, dryers and
other appliances; light fixtures, awnings, storm windows and storm
doors; pictures, screens, blinds, shades, curtains and curtain
rods; mirrors; cabinets, paneling, rugs and floor and wall
coverings; fences, trees and plants; swimming pools; and exercise
equipment.
(j)
"
Governmental
Authority " means any
board, commission, department or body of any municipal, county,
state or federal governmental unit, or any subdivision of any of
them, that has or acquires jurisdiction over the Mortgaged Property
or the use, operation or improvement of the Mortgaged Property or
over the Borrower.
(k)
"
Hazard
Insurance " is defined
in Section 19.
(l)
"
Hazardous
Materials " means
petroleum and petroleum products and compounds containing them,
including gasoline, diesel fuel and oil; explosives; flammable
materials; radioactive materials; polychlorinated biphenyls
("PCBs") and compounds containing them; lead and lead-based
paint; asbestos or asbestos‑containing materials in any form
that is or could become friable; underground or above-ground
storage tanks, whether empty or containing any substance; any
substance the presence of which on the Mortgaged Property is
prohibited by any federal, state or local authority; any substance
that requires special handling and any other material or substance
now or in the future that (i) is defined as a "hazardous
substance," "hazardous material," "hazardous waste," "toxic
substance," "toxic pollutant," "contaminant," or "pollutant" by or
within the meaning of any Hazardous Materials Law, or (ii) is
regulated in any way by or within the meaning of any Hazardous
Materials Law.
(m)
"
Hazardous Materials
Laws " means all
federal, state, and local laws, ordinances and regulations and
standards, rules, policies and other governmental requirements,
administrative rulings and court judgments and decrees in effect
now or in the future and including all amendments, that relate to
Hazardous Materials or the protection of human health or the
environment and apply to Borrower or to the Mortgaged Property.
Hazardous Materials Laws include, but are not limited to, the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601, et seq. , the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901,
et seq. , the Toxic Substance Control Act, 15 U.S.C.
Section 2601, et seq. , the Clean Water Act, 33 U.S.C.
Section 1251, et seq. , and the Hazardous Materials
Transportation Act, 49 U.S.C. Section 5101 et seq. ,
and their state analogs.
(n)
"
Impositions
"
and " Imposition Deposits
"
are defined in Section 7(a).
(o)
"
Improvements
"
means the buildings, structures, improvements, and alterations now
constructed or at any time in the future constructed or placed upon
the Land, including any future replacements and
additions.
(p)
"
Indebtedness
"
means the principal of, interest at the fixed or variable rate set
forth in the Note on, and all other amounts due at any time under,
the Note, this Instrument or any other Loan Document, including
prepayment premiums, late charges, default interest, and advances
as provided in Section 12 to protect the security of this
Instrument.
(q)
"
Initial
Owners " means, with
respect to Borrower or any other entity, the persons or entities
that (i) on the date of the Note, or (ii) on the date of
a Transfer to which Lender has consented, own in the aggregate
100 percent of the ownership interests in Borrower or that
entity.
(r)
"
Land
" means the
land described in Exhibit A.
(s)
"
Leases
" means all
present and future leases, subleases, licenses, concessions or
grants or other possessory interests now or hereafter in force,
whether oral or written, covering or affecting the Mortgaged
Property, or any portion of the Mortgaged Property (including
proprietary leases or occupancy agreements if Borrower is a
cooperative housing corporation), and all modifications, extensions
or renewals.
(t)
"
Lender
" means the
entity identified as "Lender" in the first paragraph of this
Instrument, or any subsequent holder of the Note.
(u)
"
Loan
Documents " means the
Note, this Instrument, all guaranties, all indemnity agreements,
all Collateral Agreements, O&M Programs, the MMP and any other
documents now or in the
future executed by Borrower, any guarantor or any other person in
connection with the loan evidenced by the Note, as such documents
may be amended from time to time.
(v)
"
Loan Servicer
"
means the entity that from time to time is designated by Lender to
collect payments and deposits and receive Notices under the Note,
this Instrument and any other Loan Document, and otherwise to
service the loan evidenced by the Note for the benefit of
Lender. Unless Borrower receives Notice to the contrary, the
Loan Servicer is the entity identified as "Lender" in the first
paragraph of this Instrument.
(w)
"
MMP
" means a
moisture management plan to control water intrusion and prevent the
development of Mold or moisture at the Mortgaged Property
throughout the term of this Instrument. At a minimum, the MMP
must contain a provision for (i) staff training, (ii) information
to be provided to tenants, (iii) documentation of the plan, (iv)
the appropriate protocol for incident response and remediation and
(v) routine, scheduled inspections of common space and unit
interiors.
(x)
"
Mold
" means
mold, fungus, microbial contamination or pathogenic
organisms.
(y)
"
Mortgaged
Property " means all
of Borrower's present and future right, title and interest in and
to all of the following:
(i)
the Land;
(ii)
the Improvements;
(iii)
the Fixtures;
(iv)
the Personalty;
(v)
all current and future rights,
including air rights, development rights, zoning rights and other
similar rights or interests, easements, tenements,
rights‑of‑way, strips and gores of land, streets,
alleys, roads, sewer rights, waters, watercourses, and
appurtenances related to or benefiting the Land or the
Improvements, or both, and all rights-of-way, streets, alleys and
roads which may have been or may in the future be
vacated;
(vi)
all proceeds paid or to be paid by
any insurer of the Land, the Improvements, the Fixtures, the
Personalty or any other part of the Mortgaged Property, whether or
not Borrower obtained the insurance pursuant to Lender's
requirement;
(vii)
all awards, payments and other
compensation made or to be made by any municipal, state or federal
authority with respect to the Land, the Improvements, the Fixtures,
the Personalty or any other part of the Mortgaged Property,
including any awards or settlements resulting from condemnation
proceedings or the total or partial taking of the Land, the
Improvements, the Fixtures, the Personalty or any other part of the
Mortgaged Property under the power of eminent domain or otherwise
and including any conveyance in lieu thereof;
(viii)
all contracts, options and other
agreements for the sale of the Land, the Improvements, the
Fixtures, the Personalty or any other part of the Mortgaged
Property entered into by Borrower now or in the future,
including
cash or securities deposited to secure performance by parties of
their obligations;
(ix)
all proceeds from the conversion,
voluntary or involuntary, of any of the above into cash or
liquidated claims, and the right to collect such
proceeds;
(x)
all Rents and Leases;
(xi)
all earnings, royalties, accounts
receivable, issues and profits from the Land, the Improvements or
any other part of the Mortgaged Property, and all undisbursed
proceeds of the loan secured by this Instrument;
(xii)
all Imposition
Deposits;
(xiii)
all refunds or rebates of
Impositions by any municipal, state or federal authority or
insurance company (other than refunds applicable to periods before
the real property tax year in which this Instrument is
dated);
(xiv)
all tenant security deposits which
have not been forfeited by any tenant under any Lease and any bond
or other security in lieu of such deposits; and
(xv)
all names under or by which any of
the above Mortgaged Property may be operated or known, and all
trademarks, trade names, and goodwill relating to any of the
Mortgaged Property.
(z)
"
Note
" means the
Multifamily Note described on page 1 of this Instrument, including
all schedules, riders, allonges and addenda, as such Multifamily
Note may be amended from time to time.
(aa)
"
O&M
Program " is defined
in Section 18(d).
(bb)
"
Personalty
"
means all:
(i)
accounts (including deposit
accounts) of Borrower related to the Mortgaged
Property;
(ii)
equipment and inventory owned by
Borrower, which are used now or in the future in connection with
the ownership, management or operation of the Land or Improvements
or are located on the Land or Improvements, including furniture,
furnishings, machinery, building materials, goods, supplies, tools,
books, records (whether in written or electronic form), and
computer equipment (hardware and software);
(iii)
other tangible personal property
owned by Borrower which is used now or in the future in connection
with the ownership, management or operation of the Land or
Improvements or is located on the Land or in the Improvements,
including ranges, stoves, microwave ovens, refrigerators,
dishwashers, garbage disposers, washers, dryers and other
appliances (other than Fixtures);
(iv)
any operating agreements relating
to the Land or the Improvements;
(v)
any surveys, plans and
specifications and contracts for architectural, engineering and
construction services relating to the Land or the
Improvements;
(vi)
all other intangible property,
general intangibles and rights relating to the operation of, or
used in connection with, the Land or the Improvements, including
all governmental permits relating to any activities on the Land and
including subsidy or similar payments received from any sources,
including a governmental authority; and
(vii)
any rights of Borrower in or under
letters of credit.
(cc)
"
Property
Jurisdiction " is defined
in Section 30(a).
(dd)
"
Rents
" means all
rents (whether from residential or non-residential space), revenues
and other income of the Land or the Improvements, parking fees,
laundry and vending machine income and fees and charges for food,
health care and other services provided at the Mortgaged Property,
whether now due, past due, or to become due, and deposits forfeited
by tenants, and, if Borrower is a cooperative housing corporation
or association, maintenance fees, charges or assessments payable by
shareholders or residents under proprietary leases or occupancy
agreements, whether now due, past due, or to become
due.
(ee)
"
Taxes
" means all
taxes, assessments, vault rentals and other charges, if any,
whether general, special or otherwise, including all assessments
for schools, public betterments and general or local improvements,
which are levied, assessed or imposed by any public authority or
quasi-public authority, and which, if not paid, will become a lien
on the Land or the Improvements.
(ff)
"
Transfer
" is defined
in Section 21.
2.
UNIFORM COMMERCIAL
CODE SECURITY AGREEMENT.
(a)
This
Instrument is also a security agreement under the Uniform
Commercial Code for any of the Mortgaged Property which, under
applicable law, may be subjected to a security interest under the
Uniform Commercial Code, whether such Mortgaged Property is owned
now or acquired in the future, and all products and cash and
non-cash proceeds thereof (collectively, " UCC Collateral
"), and
Borrower hereby grants to Lender a security interest in the UCC
Collateral. Borrower hereby authorizes Lender to prepare and
file financing statements, continuation statements and financing
statement amendments in such form as Lender may require to perfect
or continue the perfection of this security interest and Borrower
agrees, if Lender so requests, to execute and deliver to Lender
such financing statements, continuation statements and
amendments. Borrower shall pay all filing costs and all costs
and expenses of any record searches for financing statements and/or
amendments that Lender may require. Without the prior written
consent of Lender, Borrower shall not create or permit to exist any
other lien or security interest in any of the UCC
Collateral.
(b)
Unless
Borrower gives Notice to Lender within 30 days after the
occurrence of any of the following, and executes and delivers to
Lender modifications or supplements of this Instrument (and any
financing statement which may be filed in connection with this
Instrument) as Lender may require, Borrower shall not
(i) change its name, identity, structure or jurisdiction of
organization; (ii) change the location of its place of
business (or chief executive office if more than one place of
business); or (iii) add to or change any location at which any
of the Mortgaged Property is stored, held or located.
(c)
If an Event
of Default has occurred and is continuing, Lender shall have the
remedies of a secured party under the Uniform Commercial Code, in
addition to all remedies provided by this Instrument or existing
under applicable law. In exercising any remedies, Lender may
exercise its remedies against the UCC Collateral separately or
together, and in any order, without in any way affecting the
availability of Lender's other remedies.
(d)
This
Instrument constitutes a financing statement with respect to any
part of the Mortgaged Property that is or may become a Fixture, if
permitted by applicable law.
3.
ASSIGNMENT OF RENTS;
APPOINTMENT OF RECEIVER; LENDER IN POSSESSION.
(a)
As part of
the consideration for the Indebtedness, Borrower absolutely and
unconditionally assigns and transfers to Lender all Rents. It
is the intention of Borrower to establish a present, absolute and
irrevocable transfer and assignment to Lender of all Rents and to
authorize and empower Lender to collect and receive all Rents
without the necessity of further action on the part of
Borrower. Promptly upon request by Lender, Borrower agrees to
execute and deliver such further assignments as Lender may from
time to time require. Borrower and Lender intend this
assignment of Rents to be immediately effective and to constitute
an absolute present assignment and not an assignment for additional
security only. For purposes of giving effect to this absolute
assignment of Rents, and for no other purpose, Rents shall not be
deemed to be a part of the Mortgaged Property. However, if
this present, absolute and unconditional assignment of Rents is not
enforceable by its terms under the laws of the Property
Jurisdiction, then the Rents shall be included as a part of the
Mortgaged Property and it is the intention of the Borrower that in
this circumstance this Instrument create and perfect a lien on
Rents in favor of Lender, which lien shall be effective as of the
date of this Instrument.
(b)
After the
occurrence of an Event of Default, Borrower authorizes Lender to
collect, sue for and compromise Rents and directs each tenant of
the Mortgaged Property to pay all Rents to, or as directed by,
Lender. However, until the occurrence of an Event of Default,
Lender hereby grants to Borrower a revocable license to collect and
receive all Rents, to hold all Rents in trust for the benefit of
Lender and to apply all Rents to pay the installments of interest
and principal then due and payable under the Note and the other
amounts then due and payable under the other Loan Documents,
including Imposition Deposits, and to pay the current costs and
expenses of managing, operating and maintaining the Mortgaged
Property, including utilities, Taxes and insurance premiums (to the
extent not included in Imposition Deposits), tenant improvements
and other capital expenditures. So long as no Event of
Default has occurred and is continuing, the Rents remaining after
application pursuant to the preceding sentence may be retained by
Borrower free and clear of, and released from, Lender's rights with
respect to Rents under this Instrument. From and after the
occurrence of an Event of Default, and without the necessity of
Lender entering upon and taking and maintaining control of the
Mortgaged Property directly, or by a receiver, Borrower's license
to collect Rents shall automatically terminate and Lender shall
without Notice be entitled to all Rents as they become due and
payable, including Rents then due and unpaid. Borrower shall
pay to Lender upon demand all Rents to which Lender is
entitled. At any time on or after the date of Lender's demand
for Rents, (i) Lender may give, and Borrower hereby
irrevocably authorizes Lender to give, notice to all tenants of the
Mortgaged Property instructing them to pay all Rents to Lender,
(ii) no tenant shall be obligated to inquire further as to the
occurrence or continuance of an Event of Default, and (iii) no
tenant shall be obligated to pay to Borrower any amounts which are
actually paid to Lender in response to such a notice. Any
such notice by Lender shall be delivered to each tenant personally,
by mail or by delivering such demand to each rental unit.
Borrower shall not interfere with and shall cooperate with Lender's
collection of such Rents.
(c)
Borrower
represents and warrants to Lender that Borrower has not executed
any prior assignment of Rents (other than an assignment of Rents
securing any prior indebtedness
that is
being assigned to Lender, or paid off and discharged with the
proceeds of the loan evidenced by the Note), that Borrower has not
performed, and Borrower covenants and agrees that it will not
perform, any acts and has not executed, and shall not execute, any
instrument which would prevent Lender from exercising its rights
under this Section 3, and that at the time of execution of
this Instrument there has been no anticipation or prepayment of any
Rents for more than two months prior to the due dates of such
Rents. Borrower shall not collect or accept payment of any
Rents more than two months prior to the due dates of such
Rents.
(d)
If an Event
of Default has occurred and is continuing, Lender may, regardless
of the adequacy of Lender's security or the solvency of Borrower
and even in the absence of waste, enter upon and take and maintain
full control of the Mortgaged Property in order to perform all acts
that Lender in its discretion determines to be necessary or
desirable for the operation and maintenance of the Mortgaged
Property, including the execution, cancellation or modification of
Leases, the collection of all Rents, the making of repairs to the
Mortgaged Property and the execution or termination of contracts
providing for the management, operation or maintenance of the
Mortgaged Property, for the purposes of enforcing the assignment of
Rents pursuant to Section 3(a), protecting the Mortgaged
Property or the security of this Instrument, or for such other
purposes as Lender in its discretion may deem necessary or
desirable. Alternatively, if an Event of Default has occurred
and is continuing, regardless of the adequacy of Lender's security,
without regard to Borrower's solvency and without the necessity of
giving prior notice (oral or written) to Borrower, Lender may
apply to any court having jurisdiction for the appointment of a
receiver for the Mortgaged Property to take any or all of the
actions set forth in the preceding sentence. If Lender elects
to seek the appointment of a receiver for the Mortgaged Property at
any time after an Event of Default has occurred and is continuing,
Borrower, by its execution of this Instrument, expressly consents
to the appointment of such receiver, including the appointment of a
receiver ex parte if permitted by applicable law. If
Borrower is a housing cooperative corporation or association,
Borrower hereby agrees that if a receiver is appointed, the order
appointing the receiver may contain a provision requiring the
receiver to pay the installments of interest and principal then due
and payable under the Note and the other amounts then due and
payable under the other Loan Documents, including Imposition
Deposits, it being acknowledged and agreed that the Indebtedness is
an obligation of the Borrower and must be paid out of maintenance
charges payable by the Borrower's tenant shareholders under their
proprietary leases or occupancy agreements. Lender or the
receiver, as the case may be, shall be entitled to receive a
reasonable fee for managing the Mortgaged Property.
Immediately upon appointment of a receiver or immediately upon the
Lender's entering upon and taking possession and control of the
Mortgaged Property, Borrower shall surrender possession of the
Mortgaged Property to Lender or the receiver, as the case may be,
and shall deliver to Lender or the receiver, as the case may be,
all documents, records (including records on electronic or magnetic
media), accounts, surveys, plans, and specifications relating to
the Mortgaged Property and all security deposits and prepaid
Rents. In the event Lender takes possession and control of
the Mortgaged Property, Lender may exclude Borrower and its
representatives from the Mortgaged Property. Borrower
acknowledges and agrees that the exercise by Lender of any of the
rights conferred under this Section 3 shall not be construed
to make Lender a mortgagee-in-possession of the Mortgaged Property
so long as Lender has not itself entered into actual possession of
the Land and Improvements.
(e)
If Lender
enters the Mortgaged Property, Lender shall be liable to account
only to Borrower and only for those Rents actually received.
Except to the extent of Lender's gross negligence or willful
misconduct, Lender shall not be liable to Borrower, anyone claiming
under or through Borrower or anyone having an interest in the
Mortgaged Property, by reason of any act or omission of Lender
under Section 3(d), and Borrower hereby releases and
discharges Lender from any such liability to the fullest extent
permitted by law.
(f)
If the Rents
are not sufficient to meet the costs of taking control of and
managing the Mortgaged Property and collecting the Rents, any funds
expended by Lender for such purposes shall become an additional
part of the Indebtedness as provided in
Section 12.
(g)
Any entering
upon and taking of control of the Mortgaged Property by Lender or
the receiver, as the case may be, and any application of Rents as
provided in this Instrument shall not cure or waive any Event of
Default or invalidate any other right or remedy of Lender under
applicable law or provided for in this Instrument.
4.
ASSIGNMENT OF
LEASES; LEASES AFFECTING THE MORTGAGED PROPERTY.
(a)
As part of
the consideration for the Indebtedness, Borrower absolutely and
unconditionally assigns and transfers to Lender all of Borrower's
right, title and interest in, to and under the Leases, including
Borrower's right, power and authority to modify the terms of any
such Lease, or extend or terminate any such Lease. It
is the intention of Borrower to establish a present, absolute and
irrevocable transfer and assignment to Lender of all of Borrower's
right, title and interest in, to and under the Leases.
Borrower and Lender intend this assignment of the Leases to be
immediately effective and to constitute an absolute present
assignment and not an assignment for additional security
only. For purposes of giving effect to this absolute
assignment of the Leases, and for no other purpose, the Leases
shall not be deemed to be a part of the Mortgaged Property.
However, if this present, absolute and unconditional assignment of
the Leases is not enforceable by its terms under the laws of the
Property Jurisdiction, then the Leases shall be included as a part
of the Mortgaged Property and it is the intention of the Borrower
that in this circumstance this Instrument create and perfect a lien
on the Leases in favor of Lender, which lien shall be effective as
of the date of this Instrument.
(b)
Until Lender
gives Notice to Borrower of Lender's exercise of its rights under
this Section 4, Borrower shall have all rights, power and
authority granted to Borrower under any Lease (except as otherwise
limited by this Section or any other provision of this
Instrument), including the right, power and authority to modify the
terms of any Lease or extend or terminate any Lease. Upon the
occurrence of an Event of Default, the permission given to Borrower
pursuant to the preceding sentence to exercise all rights, power
and authority under Leases shall automatically terminate.
Borrower shall comply with and observe Borrower's obligations under
all Leases, including Borrower's obligations pertaining to the
maintenance and disposition of tenant security
deposits.
(c)
Borrower
acknowledges and agrees that the exercise by Lender, either
directly or by a receiver, of any of the rights conferred under
this Section 4 shall not be construed to make Lender a
mortgagee-in-possession of the Mortgaged Property so long as Lender
has not itself entered into actual possession of the Land and the
Improvements. The acceptance by Lender of the assignment of
the Leases pursuant to Section 4(a) shall not at any time
or in any event obligate Lender to take any action under this
Instrument or to expend any money or to incur any expenses.
Except to the extent of Lender's gross negligence or willful
misconduct, Lender shall not be liable in any way for any injury or
damage to person or property sustained by any person or persons,
firm or corporation in or about the Mortgaged Property. Prior
to Lender's actual entry into and taking possession of the
Mortgaged Property, Lender shall not (i) be obligated to
perform any of the terms, covenants and conditions contained in any
Lease (or otherwise have any obligation with respect to any Lease);
(ii) be obligated to appear in or defend any action or
proceeding relating to the Lease or the Mortgaged Property; or
(iii) be responsible for the operation, control, care,
management or repair of the Mortgaged Property or any portion of
the Mortgaged Property. The execution of this Instrument by
Borrower shall constitute conclusive evidence that all
responsibility for the operation, control, care, management and
repair of the Mortgaged Property is and shall be that of Borrower,
prior to such actual entry and taking of possession.
(d)
Upon delivery
of Notice by Lender to Borrower of Lender's exercise of Lender's
rights under this Section 4 at any time after the occurrence
of an Event of Default, and without the necessity of Lender
entering upon and taking and maintaining control of the Mortgaged
Property directly, by a receiver, or by any other manner or
proceeding permitted by the laws of the Property Jurisdiction,
Lender immediately shall have all rights, powers and authority
granted to Borrower under any Lease, including the right, power and
authority to modify the terms of any such Lease, or extend or
terminate any such Lease.
(e)
Borrower
shall, promptly upon Lender's request, deliver to Lender an
executed copy of each residential Lease then in effect. All
Leases for residential dwelling units shall be on forms approved by
Lender, shall be for initial terms of at least six months and not
more than two years, and shall not include options to
purchase.
(f)
Borrower
shall not lease any portion of the Mortgaged Property for
non-residential use except with the prior written consent of Lender
and Lender's prior written approval of the Lease agreement.
Borrower shall not modify the terms of, or extend or terminate, any
Lease for non-residential use (including any Lease in existence on
the date of this Instrument) without the prior written consent
of Lender. However, Lender's consent shall not be required
for the modification or extension of a non-residential Lease if
such modification or extension is on terms at least as favorable to
Borrower as those customary at that time in the applicable market
and the income from the extended or modified Lease will not be less
than the income received from the Lease as of the date of this
Instrument. Borrower shall, without request by Lender,
deliver an executed copy of each non-residential Lease to Lender
promptly after such Lease is signed. All non-residential
Leases, including renewals or extensions of existing Leases, shall
specifically provide that (i) such Leases are subordinate to
the lien of this Instrument; (ii) the tenant shall attorn to
Lender and any purchaser at a foreclosure sale, such attornment to
be self-executing and effective upon acquisition of title to the
Mortgaged Property by any purchaser at a foreclosure sale or by
Lender in any manner; (iii) the tenant agrees to execute such
further evidences of attornment as Lender or any purchaser at a
foreclosure sale may from time to time request; (iv) the Lease
shall not be terminated by foreclosure or any other transfer of the
Mortgaged Property; (v) after a foreclosure sale of the
Mortgaged Property, Lender or any other purchaser at such
foreclosure sale may, at Lender's or such purchaser's option,
accept or terminate such Lease; and (vi) the tenant shall,
upon receipt after the occurrence of an Event of Default of a
written request from Lender, pay all Rents payable under the Lease
to Lender.
(g)
Borrower
shall not receive or accept Rent under any Lease (whether
residential or non-residential) for more than two months in
advance.
(h)
If Borrower
is a cooperative housing corporation or association,
notwithstanding anything to the contrary contained in this
subsection or in Section 21, so long as Borrower remains a
cooperative housing corporation or association and is not in breach
of any covenant of this Instrument, Lender hereby consents
to:
(i)
the execution of leases of
apartments for a term in excess of two years from Borrower to a
tenant shareholder of Borrower, so long as such leases, including
proprietary leases, are and will remain subordinate to the lien of
this Instrument; and
(ii)
the surrender or termination of
such leases of apartments where the surrendered or terminated lease
is immediately replaced or where the Borrower makes its best
efforts to secure such immediate replacement by a newly executed
lease of the same apartment to a tenant shareholder of the
Borrower. However, no consent is hereby given by Lender to
any execution, surrender, termination or assignment of a lease
under terms that would waive or reduce the obligation of the
resulting tenant shareholder under such lease to pay cooperative
assessments in full when due or the obligation of the former tenant
shareholder to pay any unpaid portion of such
assessments.
5.
PAYMENT OF
INDEBTEDNESS; PERFORMANCE UNDER LOAN DOCUMENTS; PREPAYMENT
PREMIUM.
Borrower shall pay the Indebtedness when due in accordance with the
terms of the Note and the other Loan Documents and shall perform,
observe and comply with all other provisions of the Note and the
other Loan Documents. Borrower shall pay a prepayment premium
in connection with certain prepayments of the Indebtedness,
including a payment made after Lender's exercise of any right of
acceleration of the Indebtedness, as provided in the
Note.
6.
EXCULPATION.
Borrower's personal liability for payment of the Indebtedness and
for performance of the other obligations to be performed by it
under this Instrument is limited in the manner, and to the extent,
provided in the Note.
7.
DEPOSITS FOR TAXES,
INSURANCE AND OTHER CHARGES.
(a)
Unless this
requirement is waived in writing by Lender, which waiver may be
contained in this Section 7(a), Borrower shall deposit with
Lender on the day monthly installments of principal or interest, or
both, are due under the Note (or on another day designated in
writing by Lender), until the Indebtedness is paid in full, an
additional amount sufficient to accumulate with Lender the entire
sum required to pay, when due, the items marked "Collect"
below. Lender will not require the Borrower to make
Imposition Deposits with respect to the items marked "Deferred"
below.
[Deferred] Hazard
Insurance premiums or other insurance premiums required by Lender
under Section 19,
[Deferred] Taxes,
[Deferred] water and
sewer charges (that could become a lien on the Mortgaged
Property),
[ N/A ]
ground rents,
[Deferred] assessments or
other charges (that could become a lien on the Mortgaged
Property)
The amounts deposited under the preceding sentence are collectively
referred to in this Instrument as the " Imposition Deposits
." The obligations of Borrower for which the Imposition
Deposits are required are collectively referred to in this
Instrument as " Impositions. " The amount of the
Imposition Deposits shall be sufficient to enable Lender to pay
each Imposition before the last date upon which such payment may be
made without any penalty or interest charge being added.
Lender shall
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