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Exhibit 10.4
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AMENDED AND RESTATED
INDEMNITY MULTIFAMILY DEED OF TRUST,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
(____________________:_____________________)
THIS AMENDED AND RESTATED INDEMNITY DEED OF TRUST (together with the
attached Rider to Indemnity Multifamily Instrument and Special Rider to
Indemnity Multifamily Instrument, the "Instrument") is executed this ___ day of
September, 1997, effective as of the ___ day of September, 1997 (the "Effective
Date"), among the Trustor/Grantor, THE TC-____________________ COMPANY, a
Maryland general partnership, whose address is x/x Xxx Xxxx xxx Xxxxxxx
Xxxxxxxxxx Xxxxxxx, 0000 Equitable Bank Center, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xx. Xxxxxxxx X. Xxxxx, Senior Vice
President (herein "Grantor"), G. XXXXX XXXXXX (herein "Trustee"), and the
Beneficiary, WASHINGTON MORTGAGE FINANCIAL GROUP, LTD, a corporation organized
and existing under the laws of the state of Delaware, whose address is 0000
Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (herein "Lender").
WHEREAS, Grantor is a party to that certain Master Credit Facility
Agreement dated as of the Effective Date, by and among Grantor, Lender, and
others (as amended from time to time, the "Master Agreement");
WHEREAS, Grantor, as owner of the Property (as defined below), has
executed and delivered to Lender that certain Amended and Restated Deed of
Trust, Assignment of Rents and Security Agreement (the "First Security
Instrument"), securing that certain Amended and Restated Multifamily Base
Facility Note made by Grantor in favor of Lender (the "Promissory Note"), which
First Security Instrument will be recorded among the records of
____________________ County, Maryland, immediately prior to the recordation
hereof;
WHEREAS, the Promissory Note amends and restates that certain
promissory note (the "Original Note"), dated as of August 23, 1993, made by
Grantor for the benefit of The Town and Country Funding Corporation (the
"Original Lender"), which Original Note was purchased by Lender;
WHEREAS, the First Security Instrument amends and restates that
certain deed of trust and security agreement, dated as of August 23, 1993, made
by Grantor, which secured the Original Note;
WHEREAS, pursuant to the terms of the Master Agreement, Grantor has
executed and delivered to Lender that certain Amended and Restated Guaranty
dated as of the Effective Date (the "Guaranty"), in respect of thirty-four (34)
promissory notes in favor of Lender (collectively, the "Note"), all made
pursuant to and in accordance with the terms of the Master Agreement;
WHEREAS, the Guaranty amends and restates, that certain guaranty,
dated as of August 23, 1993, made by Grantor and others for the benefit of
Original Lender (the "Original Guaranty"), which Original Guaranty was secured
by an amended and restated indemnity subordinate deed of trust dated as of
August 23, 1993, and described more fully on Exhibit B attached hereto and
incorporated herein by this reference (the "Original Indemnity Instrument"),
and which Original Guaranty and Original Indemnity Instrument were purchased by
Lender;
WHEREAS, Grantor and Lender desire to amend and restate the Original
Indemnity Instrument by executing and delivering this Instrument;
GRANTOR, in consideration of the indebtedness herein recited and the
trust herein created, and for other good and valuable consideration,
irrevocably grants, conveys and assigns to Trustee, in trust, with power of
sale, the property described on Exhibit A attached hereto and incorporated
herein by this reference, located in ____________________ County , State of
Maryland.
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,
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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 and owned by Grantor, 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 all other equipment owned
by Grantor necessary for the operation of the foregoing and any and all other
personal property on the property site owned by the Grantor, other than
personal property of the occupancy tenants, and together with the following
items: utility deposits, unearned premiums, accrued, accruing or to accrue
under insurance policies now or hereafter obtained by the Grantor and all
proceeds of any conversion of the "Property" (as hereinafter defined) or any
part thereof including, without limitation, proceeds of hazard and title
insurance and all awards and compensation for the taking by eminent domain,
condemnation or otherwise, of all or any part of the Property or any easement
therein; all of which, including replacements and additions thereto, shall be
deemed to remain a part of the real property covered by this Instrument; and
all of the foregoing owned by Grantor, 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 payment of all indebtedness, liabilities
and obligations now or hereafter owed by Grantor pursuant to the Guaranty, (b)
the repayment of any and all indebtedness created by any future advances, with
interest thereon, made by Lender described in Paragraph I of the Special Rider
(the "Future Advances"), each and all of the Future Advances being fully
contemplated by Grantor, (c) the payment of all other sums, with interest
thereon, advanced in accordance herewith to protect the security of this
Instrument, and (d) the performance of the covenants and agreements of Grantor
herein contained, Grantor does hereby mortgage, grant, convey and assign to
Lender the property described in Exhibit A to this Instrument.
Grantor covenants that Grantor is lawfully seised 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 Grantor 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.
UNIFORM COVENANTS. Grantor and Lender covenant and agree as follows:
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1. GUARANTY OF PRINCIPAL AND INTEREST. Grantor guarantees that the makers
of the Note shall promptly pay when due the principal of and interest on the
indebtedness evidenced by the Note, any prepayment and late charges provided in
the Note and all other sums secured by this Instrument, all as set forth in the
Guaranty.
2. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. [INTENTIONALLY OMITTED.]
3. APPLICATION OF PAYMENTS. [INTENTIONALLY OMITTED.]
4. CHARGES; LIENS. [INTENTIONALLY OMITTED.]
5. HAZARD INSURANCE. Grantor 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 Instrument is on a leasehold, the ground
lease) shall require and 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 the Master Agreement, or by Grantor 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 Grantor shall promptly furnish to Lender all renewal notices and
all receipts of paid premiums. At least 20 days prior to the expiration date of
a policy, Grantor shall deliver to Lender written notice of any significant
changes to a policy and 10 days prior to the expiration date of a policy,
Grantor shall deliver to Lender a copy of a renewal policy in form satisfactory
to Lender. If this Instrument is on a leasehold, Grantor shall furnish Lender a
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 Grantor to Lender.
In the event of loss, Grantor shall give immediate written notice to
the insurance carrier and to Lender. Grantor hereby authorizes and empowers
Lender as attorney-in-fact for Grantor 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 Lender's 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. Grantor
further authorizes Lender, at Lender's option, (a) to hold the balance of such
proceeds to be used to reimburse Grantor 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 or guaranteed by the Guaranty,
whether or not then due, in the order of application set forth in the Master
Agreement (subject, however, to the rights of the lessor under the ground lease
if this Instrument is on a leasehold).
Notwithstanding the foregoing paragraph, Lender shall not exercise
Lender's option to apply insurance proceeds to the payment of the sums secured
by this Instrument if all of the following conditions are met: (i) no Event of
Default has occurred and is continuing; (ii) Lender reasonably determines that
there will be sufficient funds (including any funds furnished by Grantor) to
restore and repair the Property substantially to the equivalent of its
condition immediately prior to the loss or casualty to the Property; (iii)
Lender reasonably determines that the rental income of the Property, after
restoration and repair of the property to the condition required by clause
(ii), will be sufficient to meet all operating costs and other expenses,
payments for reserves and loan repayment obligations relating to the Property;
(iv) Lender reasonably determines that restoration and repair of the property
to the condition required by clause (ii) will be completed prior to the earlier
to occur of (1) the maturity date of the Note or (2) (A) one year from the date
of the loss or casualty to the Property (if less than 50% of the rentable space
of the Property (as measured by Lender) is damaged by the loss or casualty) or
(B) two years from the date of the loss or casualty to the Property (if 50% or
more of the rentable space of the Property (as measured by Lender) is damaged
by the loss or casualty); and (v) Lender reasonably determines that upon the
restoration and repair of the Property there will not have been a material
diminution in the value of the Property since the date immediately preceding
the loss or casualty.
If the insurance proceeds are held by Lender to reimburse Grantor for
the cost of restoration and repair of the Property, the Property shall be
restored substantially to the equivalent of its condition immediately prior to
the loss or casualty to the Property. Lender may, at Lender's option, condition
disbursement of said proceeds on Lender's 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. Lender shall also have the right to make any
casualty loss draft payable to both Lender and Grantor. Lender, at Grantor's
expense, shall also be entitled to inspect the Property during the period in
which the restoration and repair is being completed, provided Lender makes no
more than one inspection in any 60-day period. 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 due under any Note
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secured hereby. If the Property is sold pursuant to paragraph 27 hereof or if
Lender acquires title to the Property, Lender shall all of the right, title and
interest of Grantor in and to any insurance policies and unearned premiums
thereon and in and to the proceeds resulting from any damage to the Property
prior to such sale or acquisition.
Notwithstanding anything to the contrary in this paragraph 5, so long
as there exists no Event of Default, Grantor shall be entitled to retain,
without Lender's consent, insurance proceeds payable with respect to any claim
not exceeding $500,000. Grantor agrees to provide Lender with prompt written
notice of any such claim.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Grantor (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 or any part of the Property to substantially the
equivalent of, or better than, its condition on the date hereof, 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 or powers of Lender. Neither Grantor nor any tenant or other
person shall remove, demolish or alter any improvement now existing or
hereafter erected on the Property or any fixture, equipment, machinery or
appliance in or on the Property except when incident to the replacements of
fixtures, equipment, machinery and appliances with items of like kind.
7. USE OF PROPERTY. Unless required by applicable law or unless Lender has
otherwise agreed in writing, Grantor 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. Grantor 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 Grantor fails to perform the
covenants and agreements contained in this Instrument, or if any action or
proceeding is commenced which affects the Property or 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 option may make such appearances,
disburse such sums and take such action 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 a leasehold, exercise of any option to renew
or extend the ground lease on behalf of Grantor and the curing of any default
of Grantor 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 Grantor secured by
this Instrument. Unless Grantor 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
Grantor 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 from Grantor under applicable law. Grantor 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. [INTENTIONALLY OMITTED.]
10. BOOKS AND RECORDS. [INTENTIONALLY OMITTED.]
11. CONDEMNATION. Grantor 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 Grantor shall appear in and
prosecute any such action or proceeding unless otherwise directed by Lender in
writing. Grantor authorizes Lender, at Lender's option, as attorney-in-fact for
Grantor, to commence, appear in and prosecute, in Lender's or Grantor'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.
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Grantor 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 for in the Master Agreement, with the balance, if
any, to Grantor. Unless Grantor 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 paragraph 1 hereof or change the
amount of such installments. Grantor 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.
Notwithstanding the foregoing, in the event of any condemnation
claim(s) in connection with any condemnation or other taking that, in the
aggregate, does not exceed Five Hundred Thousand Dollars ($500,000.00), Lender
agrees, provided that no Event of Default has occurred and is continuing, to
waive its right to act as Grantor's attorney-in-fact (as set forth in the
second sentence of this paragraph 11) upon the condition that Grantor (A) shall
give prompt written notice thereof to Lender and (B) shall diligently and
continuously prosecute such claim to completion.
Lender shall permit Grantor to apply any such awards, payments,
proceeds or damages, after deduction of Lender's expenses incurred in the
collection of such amounts, to the payment of repairs to the Property if all of
the following conditions are met: (i) no Event of Default has occurred and is
continuing; (ii) Lender reasonably determines that there will be sufficient
funds to restore and repair the Property substantially to the equivalent of its
condition immediately prior to the condemnation or other taking; (iii) Lender
reasonably determines that the condition required by clause (ii), will be
sufficient to meet all operating costs and other expenses, payments for
reserves and loan repayment obligations relating to the Property; (iv) Lender
reasonably determines that restoration and repair of the Property to the
condition required by clause (ii) will be completed prior to the earlier to
occur of (1) the maturity date of the Note or (2) (x) one year from the date of
the condemnation or other taking (if less than 50% of the rentable space of the
Property (as measured by Lender) is subject to the condemnation or other
taking) or (y) two years from the date of the condemnation or other taking (if
50% or more the rentable space of the Property (as measured by Lender) is
subject to the condemnation or other taking); and (v) Lender reasonably
determines that upon the restoration and repair of the Property there will not
have been a material diminution in the value of the Property since the date
immediately preceding the condemnation or other taking.
12. GRANTOR AND LIEN NOT RELEASED. From time to time, Lender may, at
Lender's option, without giving notice to or obtaining the consent of Grantor,
Grantor's successors or assigns or of any junior lienholder or guarantors,
without liability on Lender's part and notwithstanding the occurrence of an
Event of Default, extend the time for payment of the sums secured by this
Instrument or guaranteed by the Guaranty, reduce the payments thereon, release
anyone liable on any of the sums secured by this Instrument or guaranteed by
the Guaranty, modify the terms and time of payment of the sums secured by this
Instrument, 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 or join in any extension or subordination agreement. Any
actions taken by Lender pursuant to the terms of this paragraph 12 shall not
affect the obligation of Grantor or Grantor's successors or assigns to pay the
sums secured by this Instrument and to observe the covenants of Grantor
contained herein, shall not affect the guaranty of any person, corporation,
partnership or other entity for payment of the sums secured hereby, and shall
not affect the lien or priority of lien hereof on the Property. Grantor 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 Grantor's request.
13. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in
exercising 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 sums 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 sums secured by
this Instrument, nor shall Lender's receipt of any awards, proceeds or damages
under paragraphs 5 and 11 hereof operate to cure or waive Grantor's default in
payment of sums secured by this Instrument.
14. ESTOPPEL CERTIFICATE. Grantor 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 Grantor hereby grants Lender a security interest in said
items. Grantor 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
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security agreement or financing statement shall be sufficient as a financing
statement. In addition, Grantor 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. Grantor
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, Grantor 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 the occurrence of an Event of Default, 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 and 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. Grantor shall
comply with and observe Grantor's obligations as landlord under all leases of
the Property or any part thereof. Except as provided in the Master Agreement,
Grantor will not lease any portion of the Property for non-residential use
except with the prior written approval of Lender. Grantor, 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 entered into after the date hereof
(including, without limitation, any renewals, extensions, or modifications of
existing leases) 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 to 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. Grantor 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 Grantor 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, Grantor 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, Grantor 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.
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 GRANTOR'S INSOLVENCY. If Grantor 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 Grantor shall
fail to obtain a vacation or stay of involuntary proceedings brought for the
reorganization, dissolution or liquidation of Grantor, or if Grantor shall be
adjudged a bankrupt, or if a trustee or receiver shall be appointed for Grantor
or Grantor's property, or if the Property shall become subject to the
jurisdiction of a Federal bankruptcy court or similar state court, or if
Grantor shall make an assignment for the benefit of Grantor's creditors, or if
there is an attachment, execution or other judicial seizure of any portion of
Grantor'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 or guaranteed by the Guaranty to be immediately due and payable
without prior notice to Grantor, 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 Grantor's bankruptcy or any of the other
aforesaid events shall be additional indebtedness of Grantor secured by this
Instrument pursuant to paragraph 8 hereof.
19. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN GRANTOR;
ASSUMPTION. [INTENTIONALLY OMITTED.]
20. NOTICE. [INTENTIONALLY OMITTED.]
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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 Grantor, subject to the provisions of the Master Agreement. All
covenants and agreements of Grantor 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. GOVERNING LAW; SEVERABILITY. The law governing this Instrument shall be
determined in accordance with the terms and provisions of the Master Agreement.
23. WAIVER OF STATUTE OF LIMITATIONS. Grantor 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 Guaranty 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 from the proceeds realized upon the exercise of the
remedies provided herein. Grantor, any party who consents to this Instrument
and any party who now or 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. CONSTRUCTION LOAN PROVISIONS. [INTENTIONALLY OMITTED.]
26. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION.
Grantor 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. Grantor 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 Grantor of
the occurrence of an Event of Default and of Lender's demand that Grantor cease
collection of such rents and revenues, Grantor shall collect and receive all
rents and revenues of the Property as trustee for the benefit of Lender and
Grantor, to apply the rents and revenues so collected to the sums secured by
this Instrument or guaranteed by the Guaranty in the order provided in the
Master Agreement with the balance, so long as no such notice of Event of
Default and cessation has occurred, to the account of Grantor, it being
intended by Grantor and Lender that this assignment of rents constitutes an
absolute assignment and not an assignment for additional security only. Upon
delivery of written notice by Lender to Grantor of the occurrence of an Event
of Default and of Lender's demand that Grantor cease collection of such rents
and revenues, and without the necessity of Lender entering upon and taking and
maintaining full control of the Property in person, by agent or by a
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 due 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 Grantor as trustee for the benefit of Lender only; provided, however,
that the written notice by Lender to Grantor of the occurrence of an Event of
Default shall contain a statement that Lender exercises its rights to such
rents. Grantor agrees that commencing upon delivery of such written notice of
the occurrence of an Event of Default by Lender to Grantor, 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
unit, without any liability on the part of said tenant to inquire further as to
the existence of an Event of Default.
Grantor hereby covenants that Grantor has not executed any prior
assignment of said rents, that Grantor 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. Grantor covenants that Grantor 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. Grantor further covenants that
Grantor 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 the occurrence of an Event of Default, Lender may in person, by
agent or by a court-appointed receiver, regardless of the adequacy of Lender's
security, enter upon and take and 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
MARYLAND--Multifamily--1/77--FNMA/FHLMC UNIFORM INSTRUMENT FORM 4021
(page 7 of 10 pages)
8
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 the occurrence of an Event
of Default, Grantor 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 such
written notice by Lender to Grantor of the occurrence of an Event of Default
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 Grantor 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 Grantor anyone claiming under or through Grantor 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
Grantor to Lender secured by this Instrument pursuant to paragraph 8 hereof.
Unless Lender and Grantor agree in writing to other terms of payment, such
amounts shall be payable upon notice from Lender to Grantor requesting payment
thereof and shall bear interest from the date of disbursement at the rate
stated in the Note for amounts advanced on such date unless payment 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 from Grantor
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
right 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 is released.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
MARYLAND--Multifamily--1/77--FNMA/FHLMC UNIFORM INSTRUMENT FORM 4021
(page 8 of 10 pages)
9
NON-UNIFORM COVENANTS. Grantor and Lender further covenant and agree as
follows:
27. ACCELERATION; REMEDIES. Upon the occurrence of an Event of Default,
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. Grantor acknowledges that the power of sale herein granted may
be exercised by Lender without prior judicial hearing. Grantor has the right to
bring an action to assert the non-existence of a breach or any other defense of
Grantor 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 shall mail or cause
Trustee to mail written notice of sale to Grantor in the manner prescribed by
the laws of Maryland. Trustee shall give notice of sale and shall sell the
Property according to the laws of Maryland. Trustee may sell the Property at
the time and place and under the terms designated in the notice of sale in one
or more parcels and in such order as Trustee may determine. Trustee may
postpone sale of all or any parcel of the Property by public announcement at
the time and place of any previously scheduled sale. Lender or Lender's
designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the
Property so sold without any covenant or warranty, expressed or implied. The
recitals in the Trustee's deed shall be prima facie evidence of the truth of
the statements made therein. Trustee shall apply the proceeds of the sale in
the following order: (a) to all costs and expenses of the sale, including, but
not limited to, Trustee's fees of up to 2.0% of the gross sale price,
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 persons legally entitled thereto.
28. RELEASE. Upon payment of all sums secured by this Instrument or as
provided elsewhere herein or in the Master Agreement, Lender or Trustee shall
release this Instrument. Grantor shall pay Lender's or Trustee's reasonable
costs incurred in releasing this Instrument.
29. SUBSTITUTE TRUSTEE. Lender at Lender's option may from time to time
remove Trustee and appoint a successor trustee to any Trustee appointed
hereunder by an instrument recorded in the city or 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.
SEE THE ATTACHED RIDER TO INDEMNITY MULTIFAMILY INSTRUMENT (THE "RIDER") AND
SPECIAL RIDER TO INDEMNITY MULTIFAMILY INSTRUMENT (THE "SPECIAL RIDER"), BOTH
OF WHICH ARE INCORPORATED INTO THIS INSTRUMENT BY REFERENCE, FOR ADDITIONAL
TERMS AND PROVISIONS. IN THE EVENT OF A CONFLICT AMONG THE TERMS AND PROVISIONS
THEREOF, (i) THE SPECIAL RIDER SHALL CONTROL THE TERMS AND PROVISIONS OF THE
RIDER AND THIS INSTRUMENT, AND (ii) THE RIDER SHALL CONTROL THIS INSTRUMENT.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
MARYLAND--Multifamily--1/77--FNMA/FHLMC UNIFORM INSTRUMENT FORM 4021
(page 9 of 10 pages)
10
IN WITNESS WHEREOF, Grantor has executed this Instrument or has caused the same
to be executed by its representatives thereunto duly authorized.
THE TC-____________________ COMPANY, a Maryland
general partnership
By: The TC Property Company, a Maryland general
partnership
By: The TC Operating Limited Partnership, a
Maryland limited partnership, General Partner
By: The Town and Country Trust, a
Maryland real estate investment trust,
General Partner
By:__________________________________
Xxxxxxxx X. Xxxxx
Vice President
Grantor's Address:
c/o The Town and Country Management Company
l700 Equitable Bank Center
x00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Senior Vice President
I hereby certify that this document was prepared under the supervision of the
undersigned, who is a member of the Maryland Bar.
_____________________________________
Xxxxx X. XxXxxxxxx, Esq.
MARYLAND--Multifamily--1/77--FNMA/FHLMC UNIFORM INSTRUMENT FORM 4021
(page 10 of 10 pages)
11
RIDER TO INDEMNITY MULTIFAMILY INSTRUMENT
(____________________:____________________)
THIS RIDER TO INDEMNITY MULTIFAMILY INSTRUMENT (the "Rider") is made
as of the ___ day of September, 1997, effective as of the ___ day of September,
1997, and is incorporated into and shall be deemed to amend and supplement the
Indemnity Multifamily Mortgage, Deed of Trust or Deed to Secure Debt of the
same date (the "Instrument"), given by the undersigned THE
TC-____________________ COMPANY, a Maryland general partnership (the
"Grantor"), for the benefit of WASHINGTON MORTGAGE FINANCIAL GROUP, LTD., a
Delaware corporation, 0000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
and its successors, assigns and transferees (the "Lender"), covering the
property described in the Instrument and defined therein as the "Property". The
Property is located entirely within the State of Maryland (the "Property
Jurisdiction").
The covenants and agreements of this Rider, and the covenants and
agreements of any other riders to the Instrument given by Grantor 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, Grantor 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 Xxxxxxx Xxxxxxxx 0X. 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 AGREEMENT
Grantor shall deposit with Lender the amounts required by the
Replacement Reserve and Security Agreement (the "Replacement Reserve
Agreement") between Grantor, Lender, and others, dated the same date as this
Rider, 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
[INTENTIONALLY OMITTED.]
(c) ACHIEVEMENT AGREEMENT
[INTENTIONALLY OMITTED.]
(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 Grantor
and Lender in connection with the loan evidenced by the Guaranty.
B. APPLICATION OF PAYMENTS
[INTENTIONALLY OMITTED.]
C. HAZARD INSURANCE; RESTORATION OF PROPERTY
[INTENTIONALLY OMITTED.]
D. ENVIRONMENTAL HAZARDS PROVISION
In addition to Grantor's covenants and agreements under Uniform
Covenant 6 of the Instrument ("Preservation and Maintenance of Property;
Leaseholds"), Grantor further covenants and agrees that Grantor shall not:
RIDER TO MULTIFAMILY INSTRUMENT -- XXXXXX XXX UNIFORM INSTRUMENT
FORM 4059 5/93 (page 1 of 4 pages)
12
(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 Property 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) 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 Grantor 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, Grantor
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. Grantor 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. Grantor
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 Grantor has disclosed that Prohibited Activities or Conditions exist
on the Property, Grantor shall comply in a timely manner with, and cause all
employees, agents, and contractors of Grantor 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 any agreement of Grantor (an "O&M Agreement")) and all other obligations set
forth in any O&M Agreement, 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 Grantor, including without limitation Lender's fees
and costs incurred in connection with the monitoring and review of the O&M
Program and Grantor's performance thereunder. If Grantor 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 or guaranteed by the Guaranty to be immediately due
and payable, and Lender may invoke any remedies permitted by paragraph 27 of the
Instrument.
Grantor represents that Grantor 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").
Grantor shall promptly notify Lender in writing of: (i) the occurrence
of any Prohibited Activity or Condition on the Property; (ii) Grantor's actual
knowledge of the presence on or under any adjoining property of any Hazardous
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, transferability or use of the
Property under Hazardous Materials Law. Grantor 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 Grantor, Lender, or the Property relating to loss or injury resulting
from any Hazardous Materials. Any such notice by Grantor shall not relieve
Grantor of, or result in a waiver of any obligation of Grantor under this
paragraph D.
Grantor 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.
Grantor 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
RIDER TO MULTIFAMILY INSTRUMENT -- XXXXXX MAE UNIFORM INSTRUMENT
FORM 4059 5/93 (page 2 of 4 pages)
13
costs and expenses incurred by Lender (including but not limited to fees and
expenses of attorneys and consultants, whether incurred in connection with any
judicial or administrative process or otherwise) which Grantor 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
Instrument.
Grantor 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 Grantor contained in this paragraph D or (ii) the
presence or alleged presence of Hazardous Materials on or under the Property.
Lender agrees that the liability created under this paragraph shall be limited
to the assets of Grantor and Lender shall not seek to recover any deficiency
from any natural persons who are general partners of Grantor (if Grantor is a
partnership).
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 or other related materials whether in the
form of a chemical, element, compound, solution, mixture or otherwise 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 Materials Law," 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 Grantor or to 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 the Property.
The representations, warranties, covenants, agreements, indemnities
and undertakings of Grantor contained in this paragraph D shall be in addition
to any and all other obligations and liabilities that Grantor may have to
Lender under applicable law.
The representations, warranties, covenants, agreements, indemnities
and undertakings of Grantor contained in this paragraph D shall continue and
survive notwithstanding the satisfaction, discharge, release, assignment,
termination, subordination or cancellation of the Instrument or the payment in
full of the principal 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 foreclosure 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 Materials 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 Grantor and all entities which
control, are controlled by, or are under common control with the Grantor (each
of the foregoing persons or entities is hereinafter referred to as a
"Responsible Party") following foreclosure of the Instrument or acquisition of
the Property by a deed in lieu of foreclosure. Nothing in the foregoing
sentence shall relieve the Grantor from any liability with respect to any
Prohibited Activities or Conditions or violation of Hazardous Materials Laws
where such Prohibited Activities 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
[INTENTIONALLY OMITTED.]
F. TRANSFERS OF THE PROPERTY OR SIGNIFICANT INTERESTS IN GRANTOR; TRANSFER
FEES
[INTENTIONALLY OMITTED.]
RIDER TO MULTIFAMILY INSTRUMENT -- XXXXXX XXX UNIFORM INSTRUMENT
FORM 4059 5/93 (page 3 of 4 pages)
14
G. NOTICE
Any notice give under the Instrument shall be given in accordance with
the terms of the Master Agreement.
H. GOVERNING LAW
[INTENTIONALLY OMITTED.]
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 occurrence of an Event of Default, Lender, at Lender's option
may, in addition to any remedies specified in this covenant, invoke any other
remedies provided in any Collateral Agreement.
J. SINGLE ASSET GRANTOR
[INTENTIONALLY OMITTED.]
K. NON-RECOURSE LIABILITY
[INTENTIONALLY OMITTED.]
L. EXCEPTIONS TO NON-RECOURSE LIABILITY
[INTENTIONALLY OMITTED.]
M. WAIVER OF JURY TRIAL
Grantor (i) covenants and agrees 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) waives 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 Grantor, 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, Grantor certifies that no representative or agent of
Lender (including, but not limited to, Lender's counsel) has represented,
expressly or otherwise, to Grantor or Key Principal that Lender will not seek
to enforce the provisions of this paragraph M.
BY SIGNING BELOW, Grantor accepts and agrees to the covenants and
agreements contained in this Rider.
THE TC-____________________ COMPANY, a Maryland general
partnership
By: The TC Property Company, a Maryland general partnership
By: The TC Operating Limited Partnership, a Maryland
limited partnership, General Partner
By: The Town and Country Trust, a Maryland
real estate investment trust, General
Partner
By:___________________________________
Xxxxxxxx X. Xxxxx
Vice President
RIDER TO MULTIFAMILY INSTRUMENT -- XXXXXX MAE UNIFORM INSTRUMENT
FORM 4059 5/93 (page 4 of 4 pages)
15
EXHIBIT E TO MASTER CREDIT FACILITY AGREEMENT
INDEMNITY SECURITY INSTRUMENT
16
SPECIAL RIDER TO INDEMNITY MULTIFAMILY INSTRUMENT
(Name of Owner/Asset Number)
THIS SPECIAL RIDER TO INDEMNITY MULTIFAMILY INSTRUMENT (the "Special
Rider") is made as of the ____ day of September, 1997, effective as of the
Effective Date, and is incorporated into and shall be deemed to amend and
supplement the Indemnity Multifamily Mortgage or Deed of Trust of the same date
given by the undersigned [Name of Owner], a Maryland general partnership (the
"Grantor") to or for the benefit of WASHINGTON MORTGAGE FINANCIAL GROUP, LTD.,
a Delaware corporation, whose address is 0000 Xxxxxx Xxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, and its successors, assigns and transferees (the
"Lender"), as amended and supplemented by a Rider to Indemnity Multifamily
Instrument, dated the same date as this Special Rider (the Indemnity
Multifamily Mortgage or Deed of Trust, as amended or supplemented by the Rider
to Indemnity Multifamily Instrument, this Special Rider, any other riders to
the Instrument, and any future amendments to the Indemnity Multifamily Mortgage
or Deed of Trust, is referred to as the "Instrument"), covering the property
described in the Indemnity Multifamily Mortgage or Deed of Trust and defined
therein as the "Property," more particularly described on Exhibit A, attached
hereto and made a part hereof.
The covenants and agreements of this Special Rider, and the covenants
and agreements of any other riders to the Instrument given by Grantor 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. Any conflict between the provisions of the Instrument (including
the covenants and agreements of the Rider to Indemnity Multifamily Instrument)
and this Special Rider shall be resolved in favor of this Special Rider.
ADDITIONAL COVENANTS. In addition to the covenants and agreements made
in the Instrument, Grantor and Lender further covenant and agree as follows:
A. DEFINITIONS
All capitalized terms used but not defined in the Instrument,
including, without limitation, the term "Loan Documents," shall have the
meanings ascribed to such terms in that certain Master Credit Facility
Agreement, dated the same date as this Special Rider, as amended from time to
time (the "Master Agreement"). When used in the Instrument, the parties agree
that the term "Note" shall refer to, collectively, the Base Facility Notes (as
defined in the Master Agreement), expressly excluding any Base Facility Note
executed by Grantor, and the Revolving Facility Note (as defined in the Master
Agreement).
B. SECURED OBLIGATIONS
Without limiting the generality of the description of obligations
secured in the paragraph of the Instrument starting "TO SECURE TO LENDER", and
in addition to the obligations secured in such paragraph, the irrevocable
grant, conveyance and assignment of the Property made by Grantor under the
Instrument shall specifically secure all of the following obligations
(collectively, the "Secured Obligations"):
(1) The payment of all amounts which become due and payable
by Grantor under the Guaranty; and
(2) The performance of all other obligations of Grantor under
the Guaranty.
C. CROSS-COLLATERALIZATION
The obligations guaranteed by the Grantor under the Guaranty (the
"Guaranteed Obligations") are also secured by the Security Instruments and
other Security Documents described in the Master Agreement. Reference is hereby
made to the Master Agreement, and
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such other Security Instruments and other Security Documents for a complete
description of all of the property securing the Guaranteed Obligations, and the
terms governing such secured transactions.
D. RELEASE PROVISIONS
Reference is hereby made to Articles VII, IX and X of the Master
Agreement. Subject to the terms, conditions and limitations of such Articles,
Grantor is entitled to obtain a release of the Instrument. If the original
Lender named in the Instrument, or any successor, assign or transferee to the
original Lender's interest in the Instrument, assigns or otherwise disposes of
its interest in the Instrument, then upon such assignment or other disposition
all liabilities and obligations to release the Property covered by the
Instrument on the part of the original Lender, or such successor Lender, which
accrue after such assignment or disposition shall cease and terminate and each
successor Lender shall, without further agreement, be bound by Lender's
obligation to release the Property when obligated to do so under the Master
Agreement, but only during the period of such successor Lender's ownership of
the interest in the Instrument.
E. CROSS-DEFAULT WITH MASTER AGREEMENT
The occurrence of an Event of Default under the Master Agreement shall
constitute a default under the Instrument. Upon the occurrence of an Event of
Default under the Master Agreement, Lender, at Lender's option, may exercise
any or all of the remedies to which it may be entitled under the Instrument or
any Collateral Agreement or other Loan Documents upon the breach of any
covenant or agreement by Grantor under the Instrument, including, without
limitation, all of the remedies set forth in Covenant 27 of the Instrument and
Paragraph I of the Rider to Indemnity Multifamily Instrument.
F. CERTAIN CONFORMING CHANGES.
(1) Any reference in the Instrument to the term "principal of and
interest on the Note" or "principal of and interest on the indebtedness
evidenced by the Note" shall refer to any principal of and any interest payable
on any Advance under either the Base Facility Notes or the Revolving Facility
Note (as guaranteed pursuant to the Guaranty), as selected by Lender.
(2) Any reference in the Instrument to a breach or default on the part
of the Grantor shall refer to a breach or default, after the expiration of any
applicable notice and cure periods.
(3) Any reference in the Instrument to the maturity date of the Note
shall refer to the Credit Facility Termination Date, or any earlier date on
which the indebtedness under the Base Facility Notes are due and payable.
G. INSTRUMENT NOT EXTINGUISHED UPON ZERO BALANCE.
The reduction of the indebtedness evidenced by the Revolving Facility
Note, and guaranteed by the Guaranty, to a zero balance shall not cause the
Instrument to become extinguished by operation of law. The Instrument shall not
be extinguished except upon the execution of a release of the Instrument by the
party secured under the Instrument and the recordation of the release.
H. PRIORITY OF ADVANCES.
The lien of each Security Instrument and any other Security Documents
executed by Grantor from time to time to secure the Guaranty, shall secure each
obligation to guaranty each Advance or other sum guaranteed by the Guaranty to
the same extent and with the same effect as if the Advance had been made, and
the contingent obligation had been incurred, on the date on which the Security
Instrument was recorded in the land records of the jurisdiction in which the
real property covered by the Security Instrument is located, or the date on
which the Security Document is executed and delivered to Lender.
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I. FUTURE ADVANCES.
The Instrument is given wholly or partly to secure a guaranty of
future obligations which may be incurred under the Master Agreement. Subject to
all of the conditions set forth in the Master Agreement, on or prior to January
1, 2008, Borrower may request and Lender shall make Future Advances which shall
be guaranteed by the Guaranty and secured by the Instrument. Except upon
amendment of the Instrument in accordance with the terms of the Master
Agreement, at no time shall the principal amount of the indebtedness guaranteed
under the Guaranty and secured by the Instrument, not including sums advanced
in accordance with the Instrument to protect the security of the Instrument,
exceed the original amount of the Note, which amount is (i) $375,000,000.00
(the aggregate principal amount of the Base Facility Notes and the Revolving
Facility Note) MINUS (ii) the original principal amount of the Base Facility
Note executed by Grantor.
J. REVOLVING FACILITY.
This Instrument secures indebtedness guaranteed under the Guaranty
that includes a revolving-type of indebtedness.
K. INDEMNITY INSTRUMENT
This Instrument secures the Grantor's guaranty of loans owed to Lender
by third parties other than Grantor. Grantor is not primarily liable for these
loans.
L. NONRECOURSE OBLIGATIONS.
The provisions of Article XXI of the Master Agreement (entitled
Nonrecourse Obligations), which limit Lender's recourse against Grantor, are
hereby incorporated into this Instrument by this reference to the fullest
extent as if the text of such Article were set forth in its entirety herein.
[TO BE INCLUDED FOR ALL ASSETS EXCEPT X-00, X-0, X-0, X-0, X-0 AND V-4]
M. AMENDED AND RESTATED INSTRUMENT.
The Instrument amends and restates the original Instrument.
[TO BE INCLUDED FOR X-00, X-0, X-0, X-0, X-0 AND V-4]
M. AMENDED, RESTATED AND CONSOLIDATED INSTRUMENT.
This Instrument amends, restates and consolidates the Original First
Instrument and the Original Second Instrument.
[TO BE INCLUDED IN X-00 XXX X-00 SPECIAL RIDERS ONLY]
N. GROUND LEASE COVENANTS.
Grantor hereby acknowledges that Grantor's interest in the Property is
a leasehold estate pursuant to that certain ground lease (as assigned to
Grantor and amended, the "Ground Lease") dated as of ___________________, by
and among __________________ and __________________ (the "Lessor"). In
connection therewith, Grantor hereby covenants and agrees, as long as the
Instrument encumbers the Property or any part thereof, as follows:
(1) Grantor shall not subordinate any or all of Grantor's
interest in the Property to any mortgage, lien or other
encumbrance on the Lessor's interest in the Property, without
the express written consent of Lender;
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(2) Grantor shall not convey any or all of its leasehold interest
in the Lessor, nor shall Grantor purchase or otherwise
acquire Lessor's interest in the Property, without the
express written consent of Lender, which consent Lender
agrees not to unreasonably withhold so long as Grantor
executes and delivers to Lender such instruments, and takes
such other steps, as Lender may require to ensure the
continued perfection and priority of the lien created hereby
upon and after Grantor's acquisition of Lessor's interest;
(3) The occurrence of a default by Grantor under the Ground Lease
(a "Lease Default") shall constitute an Event of Default
under the Instrument. Upon the occurrence of a Lease Default,
Lender, at Lender's option, may exercise any or all of the
remedies to which it may be entitled under the Instrument or
any Collateral Agreement or other Loan Documents upon the
breach of any covenant or agreement by Grantor under the
Instrument, including, without limitation, all of the
remedies set forth in Covenant 27 of the Instrument and
Paragraph I of the Rider to Indemnity Multifamily Instrument;
(4) Grantor shall give immediate written notice to Lender of any
default by Lessor under the Ground Lease or of any notice
received by Grantor from such Lessor of any Lease Default;
(5) Grantor shall not consent to any amendment to, or
modification of, the Ground Lease, without the express
written consent of Lender;
(6) Grantor 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;
(7) Grantor shall not surrender the Ground Lease nor terminate or
cancel the Ground Lease;
(8) Grantor 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 Grantor's attorney-in-fact to control and
act for Grantor in any such remedial proceedings; and
(9) Grantor shall, at the request of Lender, use commercially
reasonable efforts to obtain and deliver to Lender an
estoppel certificate from Lessor in the form reasonably
requested by Lender within thirty days after such request
from Lender.
Grantor 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. Grantor
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 Grantor 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.
[FOR VIRGINIA AND MARYLAND]
IN WITNESS WHEREOF, Grantor, Lender and Trustee have caused the
Instrument to be duly executed and delivered as of the date first written
above.
[FOR DELAWARE AND PENNSYLVANIA]
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IN WITNESS WHEREOF, Grantor and Lender have caused the Instrument to
be duly executed and delivered as of the date first written above.
[Signature blocks and acknowledgments to be added]
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