Title of Document: Multifamily Deed of Trust, Assignment of Rents and Security Agreement Date of Document: December 21, 2006 Grantor(s): CSI, L.L.C., a Missouri limited liability company Grantee(s):WELLS FARGO BANK, N.A., a national banking...

(Space above reserved for the Register of Deeds’ recording information)


Title of Document:		Multifamily Deed of Trust, Assignment of Rents and Security Agreement

Date of Document:		December 21, 2006

Grantor(s): CSI, L.L.C., a Missouri limited liability company

Grantee(s):XXXXX FARGO BANK, N.A., a national banking association

Xxxxxxx’s Address:		0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, XxXxxx, Xxxxxxxx 00000

Legal Description:		See attached Exhibit A, pages A-1 through A-2

Ref:

Please return to:

N. Bump / X. Xxxx

Chicago Title Ins. Co.

000 X 00^xx Xx, 18^th floor

Kansas City, MO 64105

(000) 000-0000

File no.

Prepared by, and after recording
return to:

Xxxxx X. Xxxxxx, Esq.

c/o Arent Fox PLLC

0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000

MULTIFAMILY DEED OF TRUST,
ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT

(MISSOURI)


TABLE OF CONTENTS		PAGE

DEFINITIONS.

UNIFORM COMMERCIAL CODE SECURITY AGREEMENT.

ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; XXXXXX IN POSSESSION.

ASSIGNMENT OF LEASES; LEASES AFFECTING THE MORTGAGED PROPERTY.

PAYMENT OF INDEBTEDNESS; PERFORMANCE UNDER BORROWER DOCUMENTS; PREPAYMENT PREMIUM.

EXCULPATION.

DEPOSITS FOR TAXES, INSURANCE AND OTHER CHARGES.

COLLATERAL AGREEMENTS.

APPLICATION OF PAYMENTS.

10.

COMPLIANCE WITH LAWS.

11.

USE OF PROPERTY.

12.

PROTECTION OF XXXXXX’S SECURITY.

13.

INSPECTION.

14.

BOOKS AND RECORDS; FINANCIAL REPORTING.

15.

TAXES; OPERATING EXPENSES.

16.

LIENS; ENCUMBRANCES.

17.

PRESERVATION, MANAGEMENT AND MAINTENANCE OF MORTGAGED PROPERTY.

18.

ENVIRONMENTAL HAZARDS.

19.

PROPERTY AND LIABILITY INSURANCE.

20.

CONDEMNATION.

21.

TRANSFERS OF THE MORTGAGED PROPERTY OR INTERESTS IN BORROWER.

22.

EVENTS OF DEFAULT.

23.

REMEDIES CUMULATIVE.

24.

FORBEARANCE.

25.

LOAN CHARGES.

26.

WAIVER OF STATUTE OF LIMITATIONS.

27.

WAIVER OF MARSHALLING.

28.

FURTHER ASSURANCES.

29.

ESTOPPEL CERTIFICATE.

30.

GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.

31.

NOTICE.

32.

SALE OF NOTE; CHANGE IN SERVICER.

33.

SINGLE PURPOSE BORROWER.

34.

SUCCESSORS AND ASSIGNS BOUND.

35.

JOINT AND SEVERAL LIABILITY.

36.

RELATIONSHIP OF PARTIES; NO THIRD PARTY BENEFICIARY.

37.

SEVERABILITY; AMENDMENTS.

38.

CONSTRUCTION.

39.

LOAN SERVICING.

40.

DISCLOSURE OF INFORMATION.

41.

NO CHANGE IN FACTS OR CIRCUMSTANCES.

42.

SUBROGATION.

43.

ACCELERATION; REMEDIES.

44.

RELEASE.

45.

FINANCING STATEMENT.

46.

APPOINTMENT OF RECEIVER.

47.

FURTHER ASSURANCES FOR TRUSTEE.

48.

SUCCESSOR TRUSTEE.

49.

WAIVER OF TRIAL BY JURY.

50.

FUTURE ADVANCES.

51.

CROSS-COLLATERALIZATION.

52.

CROSS-DEFAULT.

53.

REVOLVING LINE OF CREDIT.

MULTIFAMILY DEED OF TRUST,

ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT

THIS MULTIFAMILY DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (the “Instrument”) is dated as of the 21st day of December, 2006, among the trustor, CSI, L.L.C., a limited liability company organized and existing under the laws of the State of Missouri, whose address is c/o America First Apartment Investors, Inc., Xxx Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxx Xxxx 00000 (“Borrower”), Xxxxxxx X. Xxxxxx, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, as trustee (“Trustee”), and the beneficiaries, XXXXX FARGO BANK, N.A., a national banking association organized and existing under the laws of the United States, whose address is 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, XxXxxx, Xxxxxxxx 00000 (“Xxxxx Fargo”) and XXXXXX XXX, a federally chartered and stockholder-owned corporation organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. § 1716, et seq., whose address is 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, Xxxxxxxx xx Xxxxxxxx 00000 (together with its successors and assigns, “Xxxxxx Xxx”) (Xxxxx Fargo and Xxxxxx Xxx are individually and collectively referred to herein as “Lender”), as their interests may appear. This Instrument is granted for the benefit of Lender in connection with that certain Master Credit Facility and Reimbursement Agreement, dated as of September 28, 2006, as amended by Amendment No. 1 to Master Credit Facility and Reimbursement Agreement, dated as of December 14, 2006, by and among (i) Borrower, (ii) Arbors of Dublin Apartments Limited Partnership, an Ohio limited partnership, Brentwood Oaks Apartments L.P., a Tennessee limited partnership, Greenhouse Holding, L.L.C., a Nebraska limited liability company, Morganton Place Apartments LLC, a North Carolina limited liability company, Park Trace Apartments Limited Partnership, a Georgia limited partnership, Village at Cliffdale Apartments LLC, a North Carolina limited liability company, and Xxxxxxxxx Asheville Apartments LLC, a North Carolina limited liability company (the “Other Borrowers”), (iii) America First Apartment Investors, Inc., a Maryland corporation, (iv) Xxxxx Fargo and (v) Xxxxxx Xxx (as the same may be modified, amended, restated or otherwise supplemented from time to time, the “Master Agreement”). Initially capitalized terms used in this Instrument but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Master Agreement.

TO SECURE TO LENDER and its successors and assigns, and any subsequent holder of the Note and the obligations under the Master Agreement (a) the repayment of the Indebtedness in the amount of $108,448,000, or so much thereof as shall be advanced in installments, as evidenced by the Second Amended and Restated Fixed Facility Note payable to Xxxxxx Xxx, dated December 21, 2006, and maturing on September 28, 2016, the Fixed Facility Note payable to Xxxxx Fargo, dated December 21, 2006, and maturing on January 1, 2017, and each other Note executed to evidence such Indebtedness, (b) the payment of all amounts which become due and payable by Borrower under the Master Agreement, including, without limitation, the Facility Fee and the Activity Fee, (c) payment, performance and observance by Borrower of each and every other obligation, covenant and agreement of Borrower contained in the Master Agreement, including, without limitation, all of the other “Obligations”, as more particularly described in the Master Agreement; (d) the payment, performance and observance of all obligations, covenants and agreements of Borrower contained in this Instrument including but not limited to the payment of all sums, with interest thereon, pursuant to the terms of this Instrument, advanced by or on behalf of Lender and its successors and assigns under Section 12 to protect the security of this Instrument; and (e) payment and performance of all obligations under or secured by each of the Other Security Instruments, including any Other Security Instrument on any Additional Mortgaged Property that is granted after the date hereof, Borrower irrevocably grants, conveys and assigns to Trustee, in trust, with power of sale, the Mortgaged Property, including but not limited to the Land located in the City of Independence, County of Xxxxxxx, State of Missouri and described in Exhibit A attached to this Instrument.

Borrower covenants that Borrower is lawfully seized of the Mortgaged Property and has the right, power and authority to grant, convey and assign the Mortgaged Property, that the Mortgaged Property is unencumbered, other than by any Permitted Encumbrances, and that Borrower will warrant and defend generally the title to the Mortgaged Property against all claims and demands, subject to any Permitted Encumbrances. For purposes of this paragraph, “Permitted Encumbrances” shall mean any easements and restrictions listed in a schedule of exceptions to coverage in any title insurance policy issued to Lender contemporaneously with the execution and recordation of this Instrument and insuring Xxxxxx’s interest in the Mortgaged Property.

Covenants. 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) “Additional Borrower” shall have the meaning set forth in the Master Agreement.

(b) “Allocable Facility Amount” shall have the meaning set forth in the Master Agreement.

(c) “Borrower” means all persons or entities identified as “Borrower” in the first paragraph of this Instrument, together with their successors and assigns.

(d) “Borrower Documents” shall have the meaning set forth in the Master Agreement.

(e) “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 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.

(f) “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.

(g) “Event of Default” means the occurrence of any event listed in Section 22.

(h) “Fixtures” means all property 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.

(i) “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.

(j) “Guarantor” shall have the meaning set forth in the Master Agreement.

(k) “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 defined as a “hazardous substance,” “hazardous material,” “hazardous waste,” “toxic substance,” “toxic pollutant,” “contaminant,” or “pollutant” within the meaning of any Hazardous Materials Law.

(l) “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 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, 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.

(m) “Impositions” and “Imposition Deposits” are defined in Section 7(a).

(n) “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.

(o) “Indebtedness” means all amounts due and owing at any time under the Master Agreement, each Note, this Instrument and each Other Security Instrument, including the Obligations, prepayment premiums, late charges, default interest and advances as provided in Section 12 to protect the security of this Instrument.

(p) “Land” means the land described in Exhibit A.

(q) “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. The term “Leases” shall also include any master lease agreement or operating agreement under which control of the use or operation of the property has been granted to any other entity.

(r) “Lender” means Xxxxx Fargo and Xxxxxx Xxx, together with their successors and assigns.

(s) “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 Borrower Document, and otherwise to service the loan evidenced by the Note for the benefit of Lender.

(t) “Master Agreement” shall have the meaning set forth in the first paragraph of this Instrument.

(u) “Mortgaged Property” means all of Xxxxxxxx’s present and future right, title and interest in and to all of the following:

(1)

the Land;

(2)

the Improvements;

(3)

the Fixtures;

(4)

the Personalty;

(6)

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 benefitting 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;

(7)

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;

(8)

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;

(9)

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;

(10)

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;

(11)

all Rents and Leases;

(12)

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 and, if Borrower is a cooperative housing corporation, maintenance charges or assessments payable by shareholders or residents;

(13)

all Imposition Deposits;

(14)

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);

(15)

all tenant security deposits which have not been forfeited by any tenant under any Lease; and

(16)

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.

(v) “Note” means the Fixed Facility Note described on the first page hereof, all schedules, riders, allonges, addenda, renewals, extensions and modifications, as such Note may be amended from time to time and all additional Notes issued from time to time pursuant to the Master Agreement and all schedules, riders, allonges, addenda, renewals, extensions and modifications, as such additional Notes may be amended from time to time.

(w) “O&M Program” is defined in Section 18(a).

(x) “Other Borrowers” shall have the meaning set forth in the first paragraph of this Instrument and shall also include any Additional Borrower.

(y) “Other Security Instrument” shall have the meaning set forth in Section 49 of this Instrument.

(z) “Personalty” means all equipment, inventory, general intangibles which are used now or in the future in connection with the ownership, management or operation of the Land or the Improvements or are located on the Land or in the Improvements, including furniture, furnishings, machinery, building materials, appliances, goods, supplies, tools, books, records (whether in written or electronic form), computer equipment (hardware and software) and other tangible personal property (other than Fixtures) which are used now or in the future in connection with the ownership, management or operation of the Land or the Improvements or are located on the Land or in the Improvements, and any operating agreements relating to the Land or the Improvements, and any surveys, plans and specifications and contracts for architectural, engineering and construction services relating to the Land or the Improvements and all other intangible property 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.

(aa) “Property Jurisdiction” means the laws of the jurisdiction in which the Land is located.

(bb) “Rents” means all rents (whether from residential or non-residential space), revenues and other income of the Land or the Improvements, including subsidy payments received from any sources (including, but not limited to payments under any Housing Assistance Payments Contract), 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.

(cc) “Taxes” means all taxes, assessments, vault rentals and other charges, if any, 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.

(dd) “Transfer” shall have the meaning set forth in the Master Agreement.

2. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT.

This Instrument is also a security agreement under the Uniform Commercial Code for any of the Mortgaged Property which, under applicable law, may be subject to a security interest under the Uniform Commercial Code, whether acquired now or 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 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 Xxxxxxxx agrees, if Xxxxxx 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 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. 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. This Instrument constitutes a financing statement with respect to any part of the Mortgaged Property which is or may become a Fixture.

3. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; XXXXXX 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 Xxxxxx, Xxxxxxxx agrees to execute and deliver such further assignments as Xxxxxx may from time to time require. Borrower and Xxxxxx 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,” as that term is defined in Section 1(u). 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 Xxxxxx to collect, sue for and compromise Rents and directs each tenant of the Mortgaged Property to pay all Rents to, or as directed by, Xxxxxx, and Borrower shall, upon Borrower’s receipt of any Rents from any sources (including, but not limited to subsidy payments under any Housing Assistance Payments Contract), pay the total amount of such receipts to the 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 Borrower 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, Xxxxxx’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 Xxxxxx is entitled. At any time on or after the date of Xxxxxx’s demand for Rents, 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, no tenant shall be obligated to inquire further as to the occurrence or continuance of an Event of Default, and 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 Xxxxxx 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 Xxxxxx’s collection of such Rents.

(c) Borrower represents and warrants to Lender that Xxxxxxxx has not executed any prior assignment of Rents (other than an assignment of Rents securing indebtedness that will be 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, in accordance with applicable law, 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 Xxxxxx’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. 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, Xxxxxxxx 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. Xxxxxxxx acknowledges and agrees that the exercise by Xxxxxx 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. 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 this Section 3, 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 Xxxxxxxx’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 Xxxxxxxx to establish a present, absolute and irrevocable transfer and assignment to Lender of all of Xxxxxxxx’s right, title and interest in, to and under the Leases. Xxxxxxxx and Xxxxxx 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,” as that term is defined in Section 1(u). 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 Xxxxxx’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) Xxxxxxxx acknowledges and agrees that the exercise by Xxxxxx, 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 Xxxxxx 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. 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 Xxxxxx to Borrower of Xxxxxx’s exercise of Xxxxxx’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 Xxxxxx’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. If customary in the applicable market, residential Leases with terms of less than six months may be permitted with Xxxxxx’s prior written consent. Notwithstanding anything in the foregoing to the contrary, Borrower may enter into residential Leases with terms of less than six months without Lender consent, provided that such Leases have terms of at least three months and do not account for more than five percent (5%) of all residential Leases in effect with respect to the residential units at the Mortgaged Property at any given time.

(f) Except for non-residential leases existing as of the date of this Instrument and disclosed to Lender in writing, Borrower shall not lease any portion of the Mortgaged Property for non-residential use except with the prior written consent of Lender and Xxxxxx’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. Borrower shall, without request by Xxxxxx, 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 (1) such Leases are subordinate to the lien of this Instrument (unless waived in writing by Lender); (2) 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; (3) 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; (4) the Lease shall not be terminated by foreclosure or any other transfer of the Mortgaged Property; (5) after a foreclosure sale of the Mortgaged Property, Lender or any other purchaser at such foreclosure sale may, at Xxxxxx’s or such purchaser’s option, accept or terminate such Lease; and (6) 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.

5. PAYMENT OF INDEBTEDNESS; PERFORMANCE UNDER BORROWER DOCUMENTS; PREPAYMENT PREMIUM.

Borrower shall pay the Indebtedness when due in accordance with the terms of the Note and the other Borrower Documents and shall perform, observe and comply with all other provisions of the Note and the other Borrower Documents. Borrower shall pay a prepayment premium in connection with certain prepayments of the Indebtedness, including a payment made after Xxxxxx’s exercise of any right of acceleration of the Indebtedness, as provided in the Note.

6. EXCULPATION.

Xxxxxxxx’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 Master Agreement.

7. DEPOSITS FOR TAXES, INSURANCE AND OTHER CHARGES.

(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 (1) any water and sewer charges which, if not paid, may result in a lien on all or any part of the Mortgaged Property, (2) the premiums for fire and other hazard insurance, rent loss insurance and such other insurance as Lender may require under Section 19, (3) Taxes, and (4) amounts for other charges and expenses which Lender at any time reasonably deems necessary to protect the Mortgaged Property, to prevent the imposition of liens on the Mortgaged Property, or otherwise to protect Lender’s interests, all as reasonably estimated from time to time by Lender. 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 maintain records indicating how much of the monthly Imposition Deposits and how much of the aggregate Imposition Deposits held by Lender are held for the purpose of paying Taxes, insurance premiums and each other obligation of Borrower for which Imposition Deposits are required. Any waiver by Lender of the requirement that Borrower remit Imposition Deposits to Lender may be revoked by Xxxxxx, in Xxxxxx’s discretion, at any time upon notice to Xxxxxxxx.

(b) Imposition Deposits shall be held in an institution (which may be Lender, if Lender is such an institution) whose deposits or accounts are insured or guaranteed by a federal agency. Lender shall not be obligated to open additional accounts or deposit Imposition Deposits in additional institutions when the amount of the Imposition Deposits exceeds the maximum amount of the federal deposit insurance or guaranty. Lender shall apply the Imposition Deposits to pay Impositions so long as no Event of Default has occurred and is continuing. Unless applicable law requires, Lender shall not be required to pay Borrower any interest, earnings or profits on the Imposition Deposits. Borrower hereby pledges and grants to Lender a security interest in the Imposition Deposits as additional security for all of Borrower’s obligations under this Instrument and the other Borrower Documents. Any amounts deposited with Lender under this Section 7 shall not be trust funds, nor shall they operate to reduce the Indebtedness, unless applied by Lender for that purpose under Section 7(e).

(c) If Xxxxxx receives a bill or invoice for an Imposition, Xxxxxx shall pay the Imposition from the Imposition Deposits held by Xxxxxx. Lender shall have no obligation to pay any Imposition to the extent it exceeds Imposition Deposits then held by Xxxxxx. Lender may pay an Imposition according to any bill, statement or estimate from the appropriate public office or insurance company without inquiring into the accuracy of the bill, statement or estimate or into the validity of the Imposition.

(d) If at any time the amount of the Imposition Deposits held by Xxxxxx for payment of a specific Imposition exceeds the amount reasonably deemed necessary by Xxxxxx, the excess shall be credited against future installments of Imposition Deposits. If at any time the amount of the Imposition Deposits held by Lender for payment of a specific Imposition is less than the amount reasonably estimated by Lender to be necessary, Borrower shall pay to Lender the amount of the deficiency within 15 days after notice from Lender.

(e) If an Event of Default has occurred and is continuing, Lender may apply any Imposition Deposits, in any amounts and in any order as Lender determines, in Xxxxxx’s discretion, to pay any Impositions or as a credit against the Indebtedness. Upon payment in full of the Indebtedness, Xxxxxx shall refund to Borrower any Imposition Deposits held by Xxxxxx.

8. COLLATERAL AGREEMENTS.

Borrower shall deposit with Lender such amounts as may be required by any Collateral Agreement and shall perform all other obligations of Borrower under each Collateral Agreement.

9. APPLICATION OF PAYMENTS.

If at any time Lender receives, from Borrower or otherwise, any amount applicable to the Indebtedness which is less than all amounts due and payable at such time, then Lender may apply that payment to amounts then due and payable in any manner and in any order determined by Xxxxxx, in Xxxxxx’s discretion. Neither Lender’s acceptance of an amount which is less than all amounts then due and payable nor Lender’s application of such payment in the manner authorized shall constitute or be deemed to constitute either a waiver of the unpaid amounts or an accord and satisfaction. Notwithstanding the application of any such amount to the Indebtedness, Xxxxxxxx’s obligations under this Instrument and the Note shall remain unchanged.

10. COMPLIANCE WITH LAWS.

Borrower shall comply with all laws, ordinances, regulations and requirements of any Governmental Authority and all recorded lawful covenants and agreements relating to or affecting the Mortgaged Property, including all laws, ordinances, regulations, requirements and covenants pertaining to health and safety, construction of improvements on the Mortgaged Property, fair housing, zoning and land use, and Leases. Borrower also shall comply with all applicable laws that pertain to the maintenance and disposition of tenant security deposits. Borrower shall at all times maintain records sufficient to demonstrate compliance with the provisions of this Section 10. Borrower shall take appropriate measures to prevent, and shall not engage in or knowingly permit, any illegal activities at the Mortgaged Property that could endanger tenants or visitors, result in damage to the Mortgaged Property, result in forfeiture of the Mortgaged Property, or otherwise materially impair the lien created by this Instrument or Xxxxxx’s interest in the Mortgaged Property. Borrower represents and warrants to Lender that no portion of the Mortgaged Property has been or will be purchased with the proceeds of any illegal activity.

11. USE OF PROPERTY.

Unless required by applicable law, Borrower shall not (a) except for any change in use approved by Lender, allow changes in the use for which all or any part of the Mortgaged Property is being used at the time this Instrument was executed, (b) convert any individual dwelling units or common areas to commercial use, (c) initiate or acquiesce in a change in the zoning classification of the Mortgaged Property, or (d) violate Section 9.05 of the Master Agreement.

12. PROTECTION OF XXXXXX’S SECURITY.

(a) If Borrower fails to perform any of its obligations under this Instrument or any other Borrower Document, or if any action or proceeding is commenced which purports to affect the Mortgaged Property, Xxxxxx’s security or Lender’s rights under this Instrument, including eminent domain, insolvency, code enforcement, civil or criminal forfeiture, enforcement of Hazardous Materials Laws, fraudulent conveyance or reorganizations or proceedings involving a bankrupt or decedent, then Lender at Lender’s option may make such appearances, disburse such sums and take such actions as Lender reasonably deems necessary to perform such obligations of Borrower and to protect Xxxxxx’s interest, including (1) payment of fees and out-of-pocket expenses of attorneys, accountants, inspectors and consultants, (2) entry upon the Mortgaged Property to make repairs or secure the Mortgaged Property, (3) procurement of the insurance required by Section 19, and (4) payment of amounts which Xxxxxxxx has failed to pay under Sections 15 and 17.

(b) Any amounts disbursed by Lender under this Section 12, or under any other provision of this Instrument that treats such disbursement as being made under this Section 12, shall be added to, and become part of, the principal component of the Indebtedness, shall be immediately due and payable and shall bear interest from the date of disbursement until paid at the “Default Rate”, as defined in the Note.

13. INSPECTION.

Lender, its agents, representatives, and designees may make or cause to be made entries upon and inspections of the Mortgaged Property (including environmental inspections and tests) during normal business hours, or at any other reasonable time.

14. BOOKS AND RECORDS; FINANCIAL REPORTING.

The provisions of Section 8.03 to 8.05 of the Master Agreement entitled “Financial Statements; Accountants’ Reports; Other Information”; “Access to Records; Discussions With Officers and Accountants”; and “Certificate of Compliance” are incorporated by this reference into this Instrument to the fullest extent as if the text of such Sections were set forth in its entirety herein.

15. TAXES; OPERATING EXPENSES.

(a) Subject to the provisions of Section 15(c) and Section 15(d), Borrower shall pay, or cause to be paid, all Taxes when due and before the addition of any interest, fine, penalty or cost for nonpayment.

(b) Subject to the provisions of Section 15(c), Borrower shall pay the expenses of operating, managing, maintaining and repairing the Mortgaged Property (including insurance premiums, utilities, repairs and replacements) before the last date upon which each such payment may be made without any penalty or interest charge being added.

(c) As long as no Event of Default exists and Borrower has timely delivered to Lender any bills or premium notices that it has received, Borrower shall not be obligated to pay Taxes, insurance premiums or any other individual Imposition to the extent that sufficient Imposition Deposits are held by Lender for the purpose of paying that specific Imposition. If an Event of Default exists, Lender may exercise any rights Lender may have with respect to Imposition Deposits without regard to whether Impositions are then due and payable. Lender shall have no liability to Borrower for failing to pay any Impositions to the extent that any Event of Default has occurred and is continuing, insufficient Imposition Deposits are held by Xxxxxx at the time an Imposition becomes due and payable or Borrower has failed to provide Lender with bills and premium notices as provided above.

(d) Borrower, at its own expense, may contest by appropriate legal proceedings, conducted diligently and in good faith, the amount or validity of any Imposition other than insurance premiums, if (1) Borrower notifies Lender of the commencement or expected commencement of such proceedings, (2) the Mortgaged Property is not in danger of being sold or forfeited, (3) Borrower deposits with Lender reserves sufficient to pay the contested Imposition, if requested by Xxxxxx, and (4) Borrower furnishes whatever additional security is required in the proceedings or is reasonably requested by Xxxxxx, which may include the delivery to Lender of the reserves established by Borrower to pay the contested Imposition.

(e) Borrower shall promptly deliver to Lender a copy of all notices of, and invoices for, Impositions, and if Borrower pays any Imposition directly, Borrower shall promptly furnish to Lender receipts evidencing such payments.

16. LIENS; ENCUMBRANCES.

Borrower acknowledges that, to the extent provided in Section 21, the grant, creation or existence of any mortgage, deed of trust, deed to secure debt, security interest or other lien or encumbrance (a “Lien”) on the Mortgaged Property (other than the lien of this Instrument) or on certain ownership interests in Borrower, whether voluntary, involuntary or by operation of law, and whether or not such Lien has priority over the lien of this Instrument, is a “Transfer” which constitutes an Event of Default.

17. PRESERVATION, MANAGEMENT AND MAINTENANCE OF MORTGAGED PROPERTY.

(a) Borrower (1) shall not commit waste or permit impairment or deterioration of the Mortgaged Property, (2) shall not abandon the Mortgaged Property, (3) shall restore or repair promptly, in a good and workmanlike manner, any damaged part of the Mortgaged Property to the equivalent of its original condition, or such other condition as Lender may approve in writing, whether or not insurance proceeds or condemnation awards are available to cover any costs of such restoration or repair, (4) shall keep the Mortgaged Property in good repair, including the replacement of Personalty and Fixtures with items of equal or better function and quality, (5) shall provide for professional management of the Mortgaged Property by a residential rental property manager satisfactory to Lender under a contract approved by Lender in writing, and (6) shall give notice to Lender of and, unless otherwise directed in writing by Lender, shall appear in and defend any action or proceeding purporting to affect the Mortgaged Property, Xxxxxx’s security or Lender’s rights under this Instrument. Borrower shall not (and shall not permit any tenant or other person to) remove, demolish or alter the Mortgaged Property or any part of the Mortgaged Property except in connection with the replacement of tangible Personalty.

(b) If, in connection with the making of the loan evidenced by the Note or at any later date, Lender waives in writing the requirement of Section 17(a)(5) above that Borrower enter into a written contract for management of the Mortgaged Property and if, after the date of this Instrument, Borrower intends to change the management of the Mortgaged Property, Lender shall have the right to approve such new property manager and the written contract for the management of the Mortgaged Property and require that Borrower and such new property manager enter into an Assignment of Management Agreement on a form approved by Lender. If required by Xxxxxx (whether before or after an Event of Default), Borrower will cause any Affiliate of Borrower to whom fees are payable for the management of the Mortgaged Property to enter into an agreement with Lender, in a form approved by Xxxxxx, providing for subordination of those fees and such other provisions as Lender may require. “Affiliate of Borrower” means any corporation, partnership, joint venture, limited liability company, limited liability partnership, trust or individual controlled by, under common control with, or which controls Borrower (the term “control” for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests).

18. ENVIRONMENTAL HAZARDS.

(a) Except for matters covered by a written program of operations and maintenance approved in writing by Xxxxxx (an “O&M Program”) or matters described in Section 18(b), Borrower shall not cause or permit any of the following:

(1)

the presence, use, generation, release, treatment, processing, storage (including storage in above ground and underground storage tanks), handling, or disposal of any Hazardous Materials on or under the Mortgaged Property or any other property of Borrower that is adjacent to the Mortgaged Property;

(2)

the transportation of any Hazardous Materials to, from, or across the Mortgaged Property;

(3)

any occurrence or condition on the Mortgaged Property or any other property of Borrower that is adjacent to the Mortgaged Property, which occurrence or condition is or may be in violation of Hazardous Materials Laws; or

(4)

any violation of or noncompliance with the terms of any Environmental Permit with respect to the Mortgaged Property or any property of Borrower that is adjacent to the Mortgaged Property.

The matters described in clauses (1) through (4) above are referred to collectively in this Section 18 as “Prohibited Activities or Conditions”.

(b) Prohibited Activities and Conditions shall not include the safe and lawful use and storage of quantities of (1) pre-packaged supplies, cleaning materials and petroleum products customarily used in the operation and maintenance of comparable multifamily properties, (2) cleaning materials, personal grooming items and other items sold in pre-packaged containers for consumer use and used by tenants and occupants of residential dwelling units in the Mortgaged Property; and (3) petroleum products used in the operation and maintenance of motor vehicles from time to time located on the Mortgaged Property’s parking areas, so long as all of the foregoing are used, stored, handled, transported and disposed of in compliance with Hazardous Materials Laws.

(c) Borrower shall take all commercially reasonable actions (including the inclusion of appropriate provisions in any Leases executed after the date of this Instrument) to prevent its employees, agents, and contractors, and all tenants and other occupants from causing or permitting any Prohibited Activities or Conditions. Borrower shall not lease or allow the sublease or use of all or any portion of the Mortgaged Property to any tenant or subtenant for nonresidential use by any user that, in the ordinary course of its business, would cause or permit any Prohibited Activity or Condition.

(d) If an O&M Program has been established with respect to Hazardous Materials, Borrower shall comply in a timely manner with, and cause all employees, agents, and contractors of Borrower and any other persons present on the Mortgaged Property to comply with the O&M Program. All costs of performance of Borrower’s obligations under any O&M Program shall be paid by Xxxxxxxx, and Xxxxxx’s out-of-pocket costs incurred in connection with the monitoring and review of the O&M Program and Xxxxxxxx’s performance shall be paid by Borrower upon demand by Xxxxxx. Any such out-of-pocket costs of Lender which Borrower fails to pay promptly shall become an additional part of the Indebtedness as provided in Section 12.

(e) Borrower represents and warrants to Lender that, except as previously disclosed by Xxxxxxxx to Lender in writing:

(1)

Borrower has not at any time engaged in, caused or permitted any Prohibited Activities or Conditions;

(2)

to the best of Xxxxxxxx’s knowledge after reasonable and diligent inquiry, no Prohibited Activities or Conditions exist or have existed;

(3)

except to the extent previously disclosed by Borrower to Lender in writing or otherwise disclosed to Lender pursuant to that certain Phase I Environmental Site Assessment of the Mortgaged Property that was issued to Lender on October 18, 2006, the Mortgaged Property does not now contain any underground storage tanks, and, to the best of Borrower’s knowledge after reasonable and diligent inquiry, the Mortgaged Property has not contained any underground storage tanks in the past. If there is an underground storage tank located on the Property which has been previously disclosed by Borrower to Lender in writing, that tank complies with all requirements of Hazardous Materials Laws;

(4)

Borrower has complied with all Hazardous Materials Laws, including all requirements for notification regarding releases of Hazardous Materials. Without limiting the generality of the foregoing, Xxxxxxxx has obtained all Environmental Permits required for the operation of the Mortgaged Property in accordance with Hazardous Materials Laws now in effect and all such Environmental Permits are in full force and effect;

(5)

no event has occurred with respect to the Mortgaged Property that constitutes, or with the passing of time or the giving of notice would constitute, noncompliance with the terms of any Environmental Permit;

(6)

there are no actions, suits, claims or proceedings pending or, to the best of Xxxxxxxx’s knowledge after reasonable and diligent inquiry, threatened that involve the Mortgaged Property and allege, arise out of, or relate to any Prohibited Activity or Condition; and

(7)

Borrower has not received any complaint, order, notice of violation or other communication from any Governmental Authority with regard to air emissions, water discharges, noise emissions or Hazardous Materials, or any other environmental, health or safety matters affecting the Mortgaged Property or any other property of Borrower that is adjacent to the Mortgaged Property.

The representations and warranties in this Section 18 shall be continuing representations and warranties that shall be deemed to be made by Borrower throughout the term of the loan evidenced by the Note, until the Indebtedness has been paid in full.

(f) Borrower shall promptly notify Lender in writing upon the occurrence of any of the following events:

(1)

Borrower’s discovery of any Prohibited Activity or Condition;

(2)

Xxxxxxxx’s receipt of or knowledge of any complaint, order, notice of violation or other communication from any Governmental Authority or other person with regard to present or future alleged Prohibited Activities or Conditions or any other environmental, health or safety matters affecting the Mortgaged Property or any other property of Borrower that is adjacent to the Mortgaged Property; and

(3)

any representation or warranty in this Section 18 becomes untrue after the date of this Agreement.

Any such notice given by Borrower shall not relieve Borrower of, or result in a waiver of, any obligation under this Instrument, the Note, or any other Borrower Document.

(g) Borrower shall pay promptly the costs of any environmental inspections, tests or audits (“Environmental Inspections”) required by Lender in connection with any foreclosure or deed in lieu of foreclosure, or as a condition of Lender’s consent to any Transfer under Section 21, or required by Lender following a reasonable determination by Lender that Prohibited Activities or Conditions may exist. Any such costs incurred by Xxxxxx (including the fees and out-of-pocket costs of attorneys and technical consultants whether incurred in connection with any judicial or administrative process or otherwise) which Borrower fails to pay promptly shall become an additional part of the Indebtedness as provided in Section 12. The results of all Environmental Inspections made by Lender shall at all times remain the property of Lender and Lender shall have no obligation to disclose or otherwise make available to Borrower or any other party such results or any other information obtained by Lender in connection with its Environmental Inspections. Lender hereby reserves the right, and Xxxxxxxx hereby expressly authorizes Xxxxxx, to make available to any party, including any prospective bidder at a foreclosure sale of the Mortgaged Property, the results of any Environmental Inspections made by Lender with respect to the Mortgaged Property. Borrower consents to Lender notifying any party (either as part of a notice of sale or otherwise) of the results of any of Lender’s Environmental Inspections. Borrower acknowledges that Lender cannot control or otherwise assure the truthfulness or accuracy of the results of any of its Environmental Inspections and that the release of such results to prospective bidders at a foreclosure sale of the Mortgaged Property may have a material and adverse effect upon the amount which a party may bid at such sale. Xxxxxxxx agrees that Xxxxxx shall have no liability whatsoever as a result of delivering the results of any of its Environmental Inspections to any third party, and Borrower hereby releases and forever discharges Lender from any and all claims, damages, or causes of action, arising out of, connected with or incidental to the results of, the delivery of any of Xxxxxx’s Environmental Inspections.

(h) If any investigation, site monitoring, containment, clean-up, restoration or other remedial work (“Remedial Work”) is necessary to comply with any Hazardous Materials Law or order of any Governmental Authority that has or acquires jurisdiction over the Mortgaged Property or the use, operation or improvement of the Mortgaged Property under any Hazardous Materials Law, Borrower shall, by the earlier of (1) the applicable deadline required by Hazardous Materials Law or (2) 30 days after notice from Lender demanding such action, begin performing the Remedial Work, and thereafter diligently prosecute it to completion, and shall in any event complete the work by the time required by applicable Hazardous Materials Law. If Borrower fails to begin on a timely basis or diligently prosecute any required Remedial Work, Lender may, at its option, cause the Remedial Work to be completed, in which case Xxxxxxxx shall reimburse Lender on demand for the cost of doing so. Any reimbursement due from Borrower to Lender shall become part of the Indebtedness as provided in Section 12.

(i) Borrower shall cooperate with any inquiry by any Governmental Authority and shall comply with any governmental or judicial order which arises from any alleged Prohibited Activity or Condition.

(j) Xxxxxxxx shall indemnify, hold harmless and defend (i) Xxxxxx, (ii) any prior owner or holder of the Note, (iii) the Loan Servicer, (iv) any prior Loan Servicer, (v) the officers, directors, shareholders, partners, employees and trustees of any of the foregoing, and (vi) the heirs, legal representatives, successors and assigns of each of the foregoing (collectively, the “Indemnitees”) from and against all proceedings, claims, damages, penalties and costs (whether initiated or sought by Governmental Authorities or private parties), including fees and out-of-pocket expenses of attorneys and expert witnesses, investigatory fees, and remediation costs, whether incurred in connection with any judicial or administrative process or otherwise, arising directly or indirectly from any of the following:

(1)

any breach of any representation or warranty of Borrower in this Section 18;

(2)

any failure by Borrower to perform any of its obligations under this Section 18;

(3)

the existence or alleged existence of any Prohibited Activity or Condition;

(4)

the presence or alleged presence of Hazardous Materials on or under the Mortgaged Property or any property of Borrower that is adjacent to the Mortgaged Property; and

(5)

the actual or alleged violation of any Hazardous Materials Law.

(k) Counsel selected by Xxxxxxxx to defend Indemnitees shall be subject to the approval of those Indemnitees. However, any Indemnitee may elect to defend any claim or legal or administrative proceeding at the Borrower’s expense.

(l) Borrower shall not, without the prior written consent of those Indemnitees who are named as parties to a claim or legal or administrative proceeding (a “Claim”), settle or compromise the Claim if the settlement (1) results in the entry of any judgment that does not include as an unconditional term the delivery by the claimant or plaintiff to Lender of a written release of those Indemnitees, satisfactory in form and substance to Lender; or (2) may materially and adversely affect Lender, as determined by Xxxxxx in its discretion.

(m) Xxxxxx agrees that the indemnity under this Section 18 shall be limited to the assets of Borrower and Lender shall not seek to recover any deficiency from any natural persons who are general partners of Xxxxxxxx.

(n) Borrower shall, at its own cost and expense, do all of the following:

(1)

pay or satisfy any judgment or decree that may be entered against any Indemnitee or Indemnitees in any legal or administrative proceeding incident to any matters against which Indemnitees are entitled to be indemnified under this Section 18;

(2)

reimburse Indemnitees for any expenses paid or incurred in connection with any matters against which Indemnitees are entitled to be indemnified under this Section 18; and

(3)

reimburse Indemnitees for any and all expenses, including fees and out-of-pocket expenses of attorneys and expert witnesses, paid or incurred in connection with the enforcement by Indemnitees of their rights under this Section 18, or in monitoring and participating in any legal or administrative proceeding.

(o) In any circumstances in which the indemnity under this Section 18 applies, Xxxxxx may employ its own legal counsel and consultants to prosecute, defend or negotiate any claim or legal or administrative proceeding and Lender, with the prior written consent of Borrower (which shall not be unreasonably withheld, delayed or conditioned), may settle or compromise any action or legal or administrative proceeding. Borrower shall reimburse Lender upon demand for all costs and expenses incurred by Xxxxxx, including all costs of settlements entered into in good faith, and the fees and out-of-pocket expenses of such attorneys and consultants.

(p) The provisions of this Section 18 shall be in addition to any and all other obligations and liabilities that Borrower may have under applicable law or under other Borrower Documents, and each Indemnitee shall be entitled to indemnification under this Section 18 without regard to whether Lender or that Indemnitee has exercised any rights against the Mortgaged Property or any other security, pursued any rights against any guarantor, or pursued any other rights available under the Borrower Documents or applicable law. If Borrower consists of more than one person or entity, the obligation of those persons or entities to indemnify the Indemnitees under this Section 18 shall be joint and several. The obligation of Borrower to indemnify the Indemnitees under this Section 18 shall survive any repayment or discharge of the Indebtedness, any foreclosure proceeding, any foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of record of the lien of this Instrument.

19. PROPERTY AND LIABILITY INSURANCE.

(a) Borrower shall keep the Improvements insured at all times against such hazards as Lender may from time to time require, which insurance shall include but not be limited to coverage against loss by fire and allied perils, general boiler and machinery coverage, and business income coverage. Xxxxxx’s insurance requirements may change from time to time throughout the term of the Indebtedness. If Lender so requires, such insurance shall also include sinkhole insurance, mine subsidence insurance, earthquake insurance, and, if the Mortgaged Property does not conform to applicable zoning or land use laws, building ordinance or law coverage. If any of the Improvements is located in an area identified by the Federal Emergency Management Agency (or any successor to that agency) as an area having special flood hazards, and if flood insurance is available in that area, Borrower shall insure such Improvements against loss by flood.

(b) All premiums on insurance policies required under Section 19(a) shall be paid in the manner provided in Section 7, unless Xxxxxx has designated in writing another method of payment. All such policies shall also be in a form approved by Lender. All policies of property damage insurance shall include a non-contributing, non-reporting mortgage clause in favor of, and in a form approved by, Lender. Lender shall have the right to hold the original policies or duplicate original policies of all insurance required by Section 19(a). Borrower shall promptly deliver to Lender a copy of all renewal and other notices received by Borrower with respect to the policies and all receipts for paid premiums. At least 30 days prior to the expiration date of a policy, Borrower shall deliver to Lender the original (or a duplicate original) of a renewal policy in form satisfactory to Lender.

(c) Borrower shall maintain at all times commercial general liability insurance, workers’ compensation insurance and such other liability, errors and omissions and fidelity insurance coverages as Lender may from time to time require.

(d) All insurance policies and renewals of insurance policies required by this Section 19 shall be in such amounts and for such periods as Lender may from time to time require, and shall be issued by insurance companies satisfactory to Lender.

(e) Borrower shall comply with all insurance requirements and shall not permit any condition to exist on the Mortgaged Property that would invalidate any part of any insurance coverage that this Instrument requires Borrower to maintain.

(f) In the event of loss, Borrower shall give immediate written notice to the insurance carrier and to Lender. With respect to any event of loss, the casualty proceeds of which are at or above $200,000, Borrower hereby authorizes and appoints Xxxxxx as attorney-in-fact for Borrower to make proof of loss, to adjust and compromise any claims under policies of property damage insurance, to appear in and prosecute any action arising from such property damage insurance policies, to collect and receive the proceeds of property damage insurance, and to deduct from such proceeds Xxxxxx’s expenses incurred in the collection of such proceeds. This power of attorney is coupled with an interest and therefore is irrevocable. However, nothing contained in this Section 19 shall require Lender to incur any expense or take any action. Lender may, at Xxxxxx’s option, (1) hold the balance of such proceeds to be used to reimburse Borrower for the cost of restoring and repairing the Mortgaged Property to the equivalent of its original condition or to a condition approved by Xxxxxx (the “Restoration”), or (2) apply the balance of such proceeds to the payment of the Indebtedness, whether or not then due. To the extent Lender determines to apply insurance proceeds to Restoration, Lender shall do so in accordance with Lender’s then-current policies relating to the restoration of casualty damage on similar multifamily properties.

(g) Lender shall not exercise its option to apply insurance proceeds to the payment of the Indebtedness if all of the following conditions are met: (1) no Event of Default (or any event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default) has occurred and is continuing; (2) Lender determines, in its discretion, that there will be sufficient funds to complete the Restoration; (3) Lender determines, in its discretion, that the rental income from the Mortgaged Property after completion of the Restoration will be sufficient to meet all operating costs and other expenses, Imposition Deposits, deposits to reserves and loan repayment obligations relating to the Mortgaged Property; (4) Lender determines, in its discretion, that the Restoration will be completed before the earlier of (A) one year before the maturity date of the Note or (B) one year after the date of the loss or casualty; and (5) upon Xxxxxx’s request, Borrower provides Lender evidence of the availability during and after the Restoration of the insurance required to be maintained by Borrower pursuant to this Section 19; and (6) no “Potential Default” or “Event of Default” has occurred and is continuing under the Master Agreement (as such terms are defined in the Master Agreement).

(h) If the Mortgaged Property is sold at a foreclosure sale or Lender acquires title to the Mortgaged Property, Lender shall automatically succeed to all rights of Borrower in and to any insurance policies and unearned insurance premiums and in and to the proceeds resulting from any damage to the Mortgaged Property prior to such sale or acquisition.

20. CONDEMNATION.

(a) Borrower shall promptly notify Lender of any action or proceeding relating to any condemnation or other taking, or conveyance in lieu thereof, of all or any part of the Mortgaged Property, whether direct or indirect (a “Condemnation”). Borrower shall appear in and prosecute or defend any action or proceeding relating to any Condemnation unless otherwise directed by Xxxxxx in writing. Xxxxxxxx authorizes and appoints Xxxxxx as attorney-in-fact for Xxxxxxxx to commence, appear in and prosecute, in Xxxxxx’s or Xxxxxxxx’s name, any action or proceeding relating to any Condemnation and to settle or compromise any claim in connection with any Condemnation. This power of attorney is coupled with an interest and therefore is irrevocable. However, nothing contained in this Section 20 shall require Lender to incur any expense or take any action. Borrower hereby transfers and assigns to Lender all right, title and interest of Xxxxxxxx in and to any award or payment with respect to (i) any Condemnation, or any conveyance in lieu of Condemnation, and (ii) any damage to the Mortgaged Property caused by governmental action that does not result in a Condemnation.

(b) Lender may apply such awards or proceeds, after the deduction of Xxxxxx’s expenses incurred in the collection of such amounts, at Lender’s option, to the restoration or repair of the Mortgaged Property or to the payment of the Indebtedness, with the balance, if any, to Borrower. Unless Lender otherwise agrees in writing, any application of any awards or proceeds to the Indebtedness shall not extend or postpone the due date of any monthly installments referred to in the Note, Section 7 of this Instrument or any Collateral Agreement, or change the amount of such installments. Xxxxxxxx agrees to execute such further evidence of assignment of any awards or proceeds as Lender may require.

21. TRANSFERS OF THE MORTGAGED PROPERTY OR INTERESTS IN BORROWER.

The provisions of Sections 8.12, 8.13 and 8.14 of the Master Agreement, which provide, inter alia, that certain Transfers of the Mortgaged Property (or any interests therein) or of certain direct or indirect interests in the Borrower or the Guarantor constitute Events of Default, are incorporated herein by reference as if fully set forth herein.

22. EVENTS OF DEFAULT.

The occurrence of any one or more of the following shall constitute an Event of Default under this Instrument:

(a) any failure by Borrower to pay or deposit when due any amount required by the Note, this Instrument or any other Borrower Document;

(b) any failure by Borrower to maintain the insurance coverage required by Section 19;

(d) fraud or material misrepresentation or material omission by Borrower, or any of its officers, directors, trustees, general partners or managers, Guarantor or any guarantor in connection with (A) the application for or creation of the Indebtedness, (B) any financial statement, rent roll, or other report or information provided to Lender during the term of the Indebtedness, or (C) any request for Xxxxxx’s consent to any proposed action, including a request for disbursement of funds under any Collateral Agreement;

(e) any Event of Default under Section 21;

(f) the commencement of a forfeiture action or proceeding, whether civil or criminal, which, in Xxxxxx’s reasonable judgment, could result in a forfeiture of the Mortgaged Property or otherwise materially impair the lien created by this Instrument or Xxxxxx’s interest in the Mortgaged Property;

(g) any failure by Borrower to perform any of its obligations under this Instrument (other than those specified in Sections 22(a) through (f)), as and when required, which continues for a period of 30 days after notice of such failure by Lender to Borrower, but no such notice or grace period shall apply in the case of any such failure which could, in Xxxxxx’s judgment, absent immediate exercise by Lender of a right or remedy under this Instrument, result in harm to Lender, impairment of the Note or this Instrument or any other security given under any other Borrower Document;

(h) any failure by Borrower to perform any of its obligations as and when required under any Borrower Document other than this Instrument which continues beyond the applicable cure period, if any, specified in that Borrower Document;

(i) any exercise by the holder of any other debt instrument secured by a mortgage, deed of trust or deed to secure debt on the Mortgaged Property of a right to declare all amounts due under that debt instrument immediately due and payable; and

(j) an event of default under (i) any of the Borrower Documents, (ii) the Master Agreement, (iii) or any other regulatory or restrictive agreement recorded against the Mortgaged Property, or (iv) any agreement or instrument to which the Borrower is a party governing or representing any form of public, quasi-public, public/private or private debt and/or equity infusion, grant, subsidy, tax relief or abatement, plan, program, or other form of assistance.

23. REMEDIES CUMULATIVE.

Each right and remedy provided in this Instrument is distinct from all other rights or remedies under this Instrument or any other Borrower Document or afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.

24. FORBEARANCE.

(a) Lender may (but shall not be obligated to) agree with Borrower, from time to time, and without giving notice to, or obtaining the consent of, or having any effect upon the obligations of, any guarantor or other third party obligor, to take any of the following actions: extend the time for payment of all or any part of the Indebtedness; reduce the payments due under this Instrument, the Note, or any other Borrower Document; release anyone liable for the payment of any amounts under this Instrument, the Note, or any other Borrower Document; accept a renewal of the Note; modify the terms and time of payment of the Indebtedness; join in any extension or subordination agreement; release any Mortgaged Property; take or release other or additional security; modify the rate of interest or period of amortization of the Note or change the amount of the monthly installments payable under the Note; and otherwise modify this Instrument, the Note, or any other Borrower Document.

(b) Any forbearance by Xxxxxx in exercising any right or remedy under the Note, this Instrument, or any other Borrower Document or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any other right or remedy. The acceptance by Lender of payment of all or any part of the Indebtedness after the due date of such payment, or in an amount which is less than the required payment, shall not be a waiver of Lender’s right to require prompt payment when due of all other payments on account of the Indebtedness or to exercise any remedies for any failure to make prompt payment. Enforcement by Lender of any security for the Indebtedness shall not constitute an election by Xxxxxx of remedies so as to preclude the exercise of any other right available to Lender. Xxxxxx’s receipt of any awards or proceeds under Sections 19 and 20 shall not operate to cure or waive any Event of Default.

25. LOAN CHARGES.

If any applicable law limiting the amount of interest or other charges permitted to be collected from Borrower is interpreted so that any charge provided for in any Borrower Document, whether considered separately or together with other charges levied in connection with any other Borrower Document, violates that law, and Xxxxxxxx is entitled to the benefit of that law, that charge is hereby reduced to the extent necessary to eliminate that violation. The amounts, if any, previously paid to Lender in excess of the permitted amounts shall be applied by Lender to reduce the principal of the Indebtedness without payment of any prepayment premium. For the purpose of determining whether any applicable law limiting the amount of interest or other charges permitted to be collected from Borrower has been violated, all Indebtedness which constitutes interest, as well as all other charges levied in connection with the Indebtedness which constitute interest, shall be deemed to be allocated and spread over the stated term of the Note. Unless otherwise required by applicable law, such allocation and spreading shall be effected in such a manner that the rate of interest so computed is uniform throughout the stated term of the Note.

26. WAIVER OF STATUTE OF LIMITATIONS.

Borrower hereby waives the right to assert any statute of limitations as a bar to the enforcement of the lien of this Instrument or to any action brought to enforce any Borrower Document.

27. WAIVER OF MARSHALLING.

Notwithstanding the existence of any other security interests in the Mortgaged 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 Mortgaged Property shall be subjected to the remedies provided in this Instrument, the Note, any other Borrower Document or applicable law. Lender shall have the right to determine the order in which any or all portions of the Indebtedness are satisfied from the proceeds realized upon the exercise of such remedies. Borrower and any party who now or in the future acquires a security interest in the Mortgaged Property and who has actual or constructive notice of this Instrument waives any and all right to require the marshalling of assets or to require that any of the Mortgaged Property be sold in the inverse order of alienation or that any of the Mortgaged Property be sold in parcels or as an entirety in connection with the exercise of any of the remedies permitted by applicable law or provided in this Instrument.

28. FURTHER ASSURANCES.

Borrower shall execute, acknowledge, and deliver, at its sole cost and expense, all further acts, deeds, conveyances, assignments, estoppel certificates, financing statements, transfers and assurances as Lender may reasonably require from time to time in order to better assure, grant, and convey to Lender the rights intended to be granted, now or in the future, to Lender under this Instrument and the Borrower Documents.

29. ESTOPPEL CERTIFICATE.

Within 10 days after a request from Lender, Borrower shall deliver to Lender a written statement, signed and acknowledged by Xxxxxxxx, certifying to Lender or any person designated by Lender, as of the date of such statement, (i) that the Borrower Documents are unmodified and in full force and effect (or, if there have been modifications, that the Borrower Documents are in full force and effect as modified and setting forth such modifications); (ii) the unpaid principal balance of the Note; (iii) the date to which interest under the Note has been paid; (iv) that Borrower is not in default in paying the Indebtedness or in performing or observing any of the covenants or agreements contained in this Instrument or any of the other Borrower Documents (or, if the Borrower is in default, describing such default in reasonable detail); (v) whether or not there are then existing any setoffs or defenses known to Borrower against the enforcement of any right or remedy of Lender under the Borrower Documents; and (vi) any additional facts requested by Xxxxxx.

30. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.

The provisions of Section 15.06 of the Master Agreement (entitled “Choice of Law; Consent to Jurisdiction; Waiver of Jury Trial”) are hereby incorporated into this Instrument by this reference to the fullest extent as if the text of such Section were set forth in its entirety herein and, additionally, those provisions relating to the waiver of jury trial set forth in Section 15.06 of the Master Agreement shall be deemed to supplement those provisions contained in Section 47 of this Instrument.

31. NOTICE.

The provisions of Section 15.08 of the Master Agreement (entitled “Notices”) are hereby incorporated into this Instrument by this reference.

32. SALE OF NOTE; CHANGE IN SERVICER.

The Note or a partial interest in the Note (together with this Instrument and the other Borrower Documents) may be sold one or more times without prior notice to Borrower. A sale may result in a change of the Loan Servicer. There also may be one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given notice of the change.

33. SINGLE PURPOSE BORROWER.

Until the Indebtedness is paid in full, Borrower (a) shall not acquire any real or personal property other than the Mortgaged Property and personal property related to the operation and maintenance of the Mortgaged Property; (b) shall not operate any business other than the management and operation of the Mortgaged Property; and (c) shall not maintain its assets in a way difficult to segregate and identify.

34. SUCCESSORS AND ASSIGNS BOUND.

This Instrument shall bind, and the rights granted by this Instrument shall inure to, the respective successors and assigns of Xxxxxx and Xxxxxxxx. However, a Transfer not permitted by Section 21 shall be an Event of Default.

35. JOINT AND SEVERAL LIABILITY.

If more than one person or entity signs this Instrument as Borrower, the obligations of such persons and entities shall be joint and several.

36. RELATIONSHIP OF PARTIES; NO THIRD PARTY BENEFICIARY.

(a) The relationship between Xxxxxx and Xxxxxxxx shall be solely that of creditor and debtor, respectively, and nothing contained in this Instrument shall create any other relationship between Xxxxxx and Borrower.

(b) No creditor of any party to this Instrument and no other person shall be a third party beneficiary of this Instrument or any other Borrower Document. Without limiting the generality of the preceding sentence, (1) any arrangement (a “Servicing Arrangement”) between the Lender and any Loan Servicer for loss sharing or interim advancement of funds shall constitute a contractual obligation of such Loan Servicer that is independent of the obligation of Borrower for the payment of the Indebtedness, (2) Borrower shall not be a third party beneficiary of any Servicing Arrangement, and (3) no payment by the Loan Servicer under any Servicing Arrangement will reduce the amount of the Indebtedness.

37. SEVERABILITY; AMENDMENTS.

The invalidity or unenforceability of any provision of this Instrument shall not affect the validity or enforceability of any other provision, and all other provisions shall remain in full force and effect. This Instrument contains the entire agreement among the parties as to the rights granted and the obligations assumed in this Instrument. This Instrument may not be amended or modified except by a writing signed by the party against whom enforcement is sought.

38. CONSTRUCTION.

The captions and headings of the sections of this Instrument are for convenience only and shall be disregarded in construing this Instrument. Any reference in this Instrument to an “Exhibit” or a “Section” shall, unless otherwise explicitly provided, be construed as referring, respectively, to an Exhibit attached to this Instrument or to a Section of this Instrument. All Exhibits attached to or referred to in this Instrument are incorporated by reference into this Instrument. Any reference in this Instrument to a statute or regulation shall be construed as referring to that statute or regulation as amended from time to time. Use of the singular in this Agreement includes the plural and use of the plural includes the singular. As used in this Instrument, the term “including” means “including, but not limited to.” In the event of a conflict between a term or a provision of the Master Agreement and a term or a provision of one or more of the other Borrower Documents, the term or the provision of the Master Agreement shall control.

39. LOAN SERVICING.

All actions regarding the servicing of the loan evidenced by the Note, including the collection of payments, the giving and receipt of notice, inspections of the Property, inspections of books and records, and the granting of consents and approvals, may be taken by the Loan Servicer unless Xxxxxxxx receives notice to the contrary. If Xxxxxxxx receives conflicting notices regarding the identity of the Loan Servicer or any other subject, any such notice from Lender shall govern.

40. DISCLOSURE OF INFORMATION.

Lender may furnish information regarding Borrower or the Mortgaged Property to third parties with an existing or prospective interest in the servicing, enforcement, evaluation, performance, purchase or securitization of the Indebtedness, including trustees, master servicers, special servicers, rating agencies, and organizations maintaining databases on the underwriting and performance of multifamily mortgage loans. Borrower irrevocably waives any and all rights it may have under applicable law to prohibit such disclosure, including any right of privacy.

41. NO CHANGE IN FACTS OR CIRCUMSTANCES.

All information in the application for the loan submitted to Lender (the “Loan Application”) and in all financial statements, rent rolls, reports, certificates and other documents submitted in connection with the Loan Application are complete and accurate in all material respects. There has been no material adverse change in any fact or circumstance that would make any such information incomplete or inaccurate.

42. SUBROGATION.

If, and to the extent that, the proceeds of the loan evidenced by the Note are used to pay, satisfy or discharge any obligation of Borrower for the payment of money that is secured by a pre-existing mortgage, deed of trust or other lien encumbering the Mortgaged Property (a “Prior Lien”), such loan proceeds shall be deemed to have been advanced by Lender at Borrower’s request, and Lender shall automatically, and without further action on its part, be subrogated to the rights, including lien priority, of the owner or holder of the obligation secured by the Prior Lien, whether or not the Prior Lien is released.

Anything elsewhere herein contained to the contrary notwithstanding, (a) in the event that any provision in this Instrument shall be inconsistent with any provision of the laws of the Property Jurisdiction regarding foreclosure (the “Foreclosure Law”), the provisions of the Foreclosure Law shall take precedence over the provisions of this Instrument, but shall not invalidate or render unenforceable any other provision of this Instrument that can be construed in a manner consistent with Foreclosure Law; and (b) if any provision of this Instrument shall grant to Lender (including Lender acting as a mortgagee-in-possession) or a receiver appointed pursuant to the provisions of this Instrument, any rights or remedies prior to, upon or following the occurrence of an Event of Default which are more limited than the rights that would otherwise be vested in Lender or such receiver under the Foreclosure Law in the absence of said provision, Lender and such receiver shall be vested with the rights granted under the Foreclosure Law to the full extent permitted by law.

Additional Covenants. Xxxxxxxx and Xxxxxx further covenant and agree as follows:

43. ACCELERATION; REMEDIES.

At any time during the existence of an Event of Default, Lender, at Xxxxxx’s option, may declare the Indebtedness to be immediately due and payable without further demand, and may invoke the power of sale and any one or more other remedies permitted by applicable law or provided in this Instrument or in any other Borrower Document. Xxxxxxxx acknowledges that the power of sale granted in this Instrument may be exercised by Lender without prior judicial hearing. Borrower has the right to bring an action to assert the non-existence of an Event of Default or any other defense of Borrower to acceleration and sale. Lender shall be entitled to collect all costs and expenses incurred in pursuing such remedies, including but not limited to attorneys’ fees, costs of documentary evidence, abstracts and title reports.

If Lender invokes the power of sale, Lender or Trustee shall mail copies of the notice of sale to Borrower and to other persons prescribed by applicable law in the manner provided by applicable law. Trustee may sell the Mortgaged 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 Mortgaged Property to any later time on the same date by public announcement at the time and place of any previously scheduled sale. Lender or Xxxxxx’s designee may purchase the Mortgaged Property at any sale.

Trustee shall deliver to the purchaser Trustee’s deed conveying the Mortgaged Property so sold without any covenant or warranty, express or implied. The recitals in Trustee’s deed shall be prima facie evidence of the truth of the statements contained in those recitals. Unless otherwise required by applicable law, 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, reasonable Trustee’s fees and attorneys’ fees and costs of title evidence; (b) to the Indebtedness in such order as Lender, in Xxxxxx’s sole discretion, directs; and (c) the excess, if any, to the person or persons legally entitled to it.

44. RELEASE.

Upon a release of the Mortgaged Property from the Collateral Pool pursuant to and in accordance with the provisions of Article 3 and Article 6 of the Master Agreement, Lender shall release the lien of this Instrument.

Borrower shall pay Lender’s reasonable costs incurred in releasing this Instrument. In addition, if upon such release the Indebtedness is paid in full, Xxxxxx shall surrender the Note together with this Instrument to the Trustee.

45. FINANCING STATEMENT.

As provided in Section 2, this Instrument constitutes a financing statement with respect to any part of the Mortgaged Property which is or may become a Fixture and for the purposes of such financing statement: (a) the Debtor shall be Borrower and the Secured Party shall be Lender; (b) the addresses of Borrower as Debtor and of Lender as Secured Party are as specified above in the first paragraph of this Instrument; (c) the name of the record owner is Borrower; (d) the types or items of collateral consist of any part of the Mortgaged Property which is or may become a Fixture; and (e) the social security number or the federal employer identification number of Borrower as Debtor is 00-0000000.

46. APPOINTMENT OF RECEIVER.

Section 3(b) and Section 4(d) are amended by (i) deleting the following phrase, each time it appears: “Lender entering upon and taking and maintaining control of the Mortgaged Property,” and (ii) inserting the following new phrase in its place: “Lender entering upon and taking and maintaining control or possession of the Mortgaged Property or any equivalent action.”

47. FURTHER ASSURANCES FOR TRUSTEE.

Borrower shall execute, acknowledge, and deliver, at its sole cost and expense, all further acts, deeds, conveyances, assignments, estoppel certificates, financing statements, transfers and assurances as Trustee may require from time to time in order to better assure, xxxxx, and convey to Trustee the rights intended to be granted, now or in the future, to Trustee under this Instrument.

48. SUCCESSOR TRUSTEE.

Lender at Lender’s option, with or without cause, may from time to time remove Trustee and appoint a successor trustee by an instrument recorded in the city or county in which this Instrument is recorded. Without conveyance of the Mortgaged Property, the successor trustee shall succeed to all the title, power and duties conferred upon the Trustee in this Instrument and by applicable law.

For purposes of this Instrument, the term “Trustee” means the person identified as Trustee in the first paragraph of this Instrument and any successor trustee appointed by Xxxxxx pursuant to this Section or otherwise appointed as permitted by law.

49. WAIVER OF TRIAL BY JURY.

XXXXXXXX AND LENDER EACH (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS INSTRUMENT OR THE RELATIONSHIP BETWEEN THE PARTIES AS BORROWER AND LENDER THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.

50. FUTURE ADVANCES.

Lender may from time to time, in Xxxxxx’s discretion, make Future Advances to Borrower, except that at no time shall the unpaid principal balance of all Indebtedness secured by the lien of this Instrument, including Future Advances, be greater than an amount equal to two hundred percent (200%) of the original principal amount of the Note as set forth on the first page of this Instrument plus accrued interest and amounts disbursed by Lender under Section 12 or any other provision of this Instrument that treats a disbursement by Xxxxxx as being made under Section 12.

51. CROSS-COLLATERALIZATION.

(a) As a condition of the execution and delivery of the Master Agreement by Xxxxxx, the amounts owing under the Master Agreement are also being secured by and in the event of any Additional Mortgaged Property will be secured by, each Other Security Instrument granted by each Other Borrower and recorded against each of the other Mortgaged Properties (as defined in the Master Agreement). Notwithstanding the Allocable Facility Amount assigned to any of the Mortgaged Properties, Lender may recover an amount equal to the full amount due and owing under the Master Agreement in connection with the foreclosure or exercise of its remedies under this Instrument, and any such amount shall be applied as determined by Lender in its sole and absolute discretion. In the event of an Event of Default under the Master Agreement or any Other Security Instrument with respect to any one of the Mortgaged Properties, the Lender shall have the right, in its sole and absolute discretion, to exercise and perfect any and all rights in and under the Borrower Documents with regard to any or all of the other Mortgaged Properties.

(b) The Borrower acknowledges that the Lender is unwilling to execute and deliver the Master Agreement unless the Borrower agrees that all of the Mortgaged Properties will be treated as a single project through the imposition of cross-collateralization, cross-default and release provisions.

(c) The Borrower hereby agrees and consents that as additional security to the Lender, each of the Mortgaged Properties shall be subject to the lien of the Other Security Instrument for each of the other Mortgaged Properties, and that each of the Mortgaged Properties shall collateralize the other Mortgaged Properties as follows: all Mortgaged Property (as defined in the respective Other Security Instrument) for each of the Mortgaged Properties shall be considered part of the “Mortgaged Property” under this Instrument, and shall be collateral under this Instrument and the Borrower Documents.

(d) In addition to the Mortgaged Property described on Exhibit A attached hereto, the Other Borrowers also own or will own additional Multifamily Residential Properties securing the loans evidenced by the Note pursuant to the terms of the Master Agreement. Such Multifamily Residential Properties securing the loans evidenced by the Note from time to time, together with the Mortgaged Property, are referred to herein collectively as the “Borrowers’ Projects.” As a condition of the loan to the Borrower and Other Borrowers (collectively, “Borrowers”) evidenced by the Note, the Note is also being secured by the other mortgages, deeds to secure debt and/or deeds of trust delivered to Lender by Borrowers with respect to the Master Agreement executed and delivered by such Borrowers to Lender, including any “Security Instrument” on any Additional Mortgaged Property added to the Collateral Pool (as defined in the Master Agreement) after the date hereof at the time of the substitution of another mortgaged property for a Mortgaged Property pursuant to the terms of the Master Agreement (collectively, the “Security Instruments”). Each of the other Security Instruments is hereinafter referred to as an “Other Security Instrument.” The Other Security Instruments existing as of the date of this Instrument are identified on Schedule 1 attached hereto.

52. CROSS-DEFAULT.

Borrower hereby agrees and consents that if an Event of Default occurs under the Master Agreement or any Other Security Instrument securing one of the Mortgaged Properties (as defined in the Master Agreement), then an Event of Default shall exist under this Instrument and the Other Security Instruments with respect to the other Mortgaged Properties and the Master Agreement. No notice shall be required to be given to the Borrower in connection with such Event of Default. In the event of an Event of Default under the Master Agreement or any Other Security Instrument with respect to any one of the Mortgaged Properties, the Lender shall have the right, in its sole and absolute discretion, to exercise and perfect any and all rights in and under the Borrower Documents with regard to any or all of the other Mortgaged Properties, including but not limited to, an acceleration of one or all of the Notes and the sale of one or all of the Mortgaged Properties in accordance with the terms of the respective Other Security Instrument. No notice, except as may be required by the respective Other Security Instrument, shall be required to be given to the Borrower in connection with the Lender’s exercise of any and all of its rights after an Event of Default has occurred.

53. REVOLVING LINE OF CREDIT.

This Instrument secures a revolving line of credit. The lien of this Instrument shall continue until a release thereof is recorded pursuant to Missouri Law. In no event shall the lien of this Instrument be eliminated because the amount of the debt secured by this Instrument is reduced to zero.

ATTACHED EXHIBITS. The following Exhibits are attached to this Instrument:

IN WITNESS WHEREOF, Xxxxxxxx has signed and delivered this Instrument or has caused this Instrument to be signed and delivered by its duly authorized representative.

CSI, L.L.C., a Missouri limited liability company

By:

/s/ Xxxxx Xxxx

Name:

Xxxxx Xxxx

Title:

Executive Vice President

STATE OF

)

) ss.:

COUNTY OF

)

On this day of December in the year 2006 before me, a Notary Public, in and for said state, personally appeared (name of officer), (title of person, president, vice president, etc.), (name of corporation), known to me to be the person who executed the within (type of document) in behalf of said corporation and acknowledged to me that he/she/they executed the same for the purposes therein stated.

Notary Public

Printed Name:
My Commission Expires:


		GUARANTOR IDENTIFICATION
Guarantor

Name:		AMERICA FIRST APARTMENT INVESTORS, INC.

Address:		Xxx Xxxxx Xxxxxxxx, Xxxxx 000 Xxxxx Xxxxxx, Xxx Xxxx 00000

EXHIBIT A

Legal Description

All that part of LOT 11A, REPLAT OF LOT 11, INDEPENDENCE CENTER,
a subdivision of land in Independence, Xxxxxxx County, Missouri,
according to the recorded plat thereof, more particularly
described as follows:

BEGINNING at the Northeast corner of LOT 11A of said REPLAT OF
LOT 11, INDEPENDENCE CENTER, said point being on the West right
of way line of Xxxxxxx Drive, as now established; thence South
2º07’04” West, along said West right of way line, a distance of
228.55 feet, to a point of curvature; thence Southwesterly,
Southerly, and Southeasterly along said West right of way line
and along a curve to the left, having a radius of 595.00 feet, an
arc distance of 232.89 feet; thence South 2º07’04” West, a
distance of 387.17 feet; thence South 32º39’04” West, a
distance of 369.88 feet; thence South 17º06’33” West, a
distance of 312.70 feet; thence South 57º55’59” West, a
distance of 96.50 feet; thence South 58º41’19” West, a distance
of 210.22 feet; thence South 41º38’23” West, a distance of
238.77 feet; thence South 46º13’04” West, a distance of 26.45
feet; thence North 80º23’19” West, a distance of 179.08 feet;
thence South 9º33’41” West, a distance of 43.80 feet; thence
North 80º11’16” West, a distance of 78.27 feet; thence
Northwesterly along a curve to the right having a radius of
842.93 feet and whose initial tangent bearing is North
64º22’56” West, an arc distance of 172.68 feet; thence North
52º38’41” West, a distance of 706.40 feet, to a point on the
Easterly right of way line of Center Drive, as now established;
thence South 87º49’56” East, along said Easterly right of way
line, a distance of 248.37 feet, to a point of curvature; thence
Southeasterly, Easterly and Northeasterly along said Easterly
right of way line and along a curve to the left, having a radius
of 734.00 feet and a central angle of 45º00’00”, an arc
distance of 576.48 feet, to the point of tangency; thence North
47º10’04” East, a distance of 276.49 feet, to a point of
curvature; thence Northeasterly along said Easterly right of way
line, and along a curve to the left, having a radius of 734.00
feet and a central angle of 30º00’00”, an arc distance of
384.32 feet, to a point of tangency; thence North 17º10’04” East,
a distance of 264.31 feet, to a point of curvature; thence
Northeasterly, Northerly and Northwesterly along said Easterly
right of way line and along a curve to the left, having a radius
of 444.00 feet and a central angle of 45º00’00”, an arc
distance of 348.72 feet, to a point of compound curvature; thence
Northwesterly along said Easterly right of way line, and along a
curve to the left, having a radius of 634.00 feet and a central
angle of 10º09’06”, an arc distance of 112.33 feet, to a point
of reverse curvature; thence Northwesterly, Northerly and
Northeasterly along said Easterly right of way line, and along a
curve to the right, having a radius of 13.00 feet and a central
angle of 55º56’43”, an arc distance of 12.69 feet, to the
Northwest corner of said LOT 11A; thence South 72º43’31” East,
along the North line of said LOT 11A, a distance of 306.96 feet;
thence South 87º49’56” East, along the North line of said LOT
11A, a distance of 230.00 feet, to the POINT OF BEGINNING,
containing 28.2533 acres, more or less.

Now known as:

All of LOT 1-A, INDEPENDENCE CENTER, REPLAT A, a subdivision of
land in the City of Independence, Xxxxxxx County, Missouri,
according to the recorded plat thereof.

SCHEDULE 1

Other Security Instruments

Open-End Multifamily Mortgage, Assignment of Rents and Security Agreement dated as of September 28, 2006, by Arbors of Dublin Apartments Limited Partnership, an Ohio limited partnership, to Xxxxx Fargo Bank, N.A. and Xxxxxx Xxx, as their interests may appear, as recorded in the Office of the Franklin County Recorder (Arbors of Dublin).

Multifamily Mortgage, Assignment of Rents and Security Agreement dated as of December 14, 2006, by Park Trace Apartments Limited Partnership, a Georgia limited partnership, to Xxxxx Fargo Bank, N.A. and Xxxxxx Xxx, as their interests may appear, as recorded in the Public Records of Xxxx and DuPage Counties, Illinois (Xxxxx at Xxx Valley).

Multifamily Deed of Trust, Assignment of Rents and Security Agreement dated as of September 28, 2006, by Brentwood Oaks Apartments L.P., a Tennessee limited liability partnership, for the benefit of Xxxxx Fargo Bank, N.A. and Xxxxxx Xxx, as their interests may appear, as recorded in the Office of the Davidson County Register of Deeds (Brentwood Oaks).

Multifamily Deed of Trust, Assignment of Rents and Security Agreement dated as of September 28, 2006, by Greenhouse Holding, L.L.C., a Nebraska limited liability company, for the benefit of Xxxxx Fargo Bank, N.A. and Xxxxxx Xxx, as their interests may appear, as recorded in the Office of the Xxxxxxx County Register of Deeds (Greenhouse).

Multifamily Deed of Trust, Assignment of Rents and Security Agreement dated as of September 28, 2006, by Morganton Place Apartments LLC, a North Carolina limited liability company, for the benefit of Xxxxx Fargo Bank, N.A. and Xxxxxx Xxx, as their interests may appear, as recorded in the Office of the Cumberland County Clerk (Morganton Place).

Multifamily Deed of Trust, Assignment of Rents and Security Agreement dated as of September 28, 2006, by Village at Cliffdale Apartments LLC, a North Carolina limited liability company, for the benefit of Xxxxx Fargo Bank, N.A. and Xxxxxx Xxx, as their interests may appear, as recorded in the Office of the Cumberland County Clerk (Village at Cliffdale).

Multifamily Deed of Trust, Assignment of Rents and Security Agreement dated as of September 28, 2006, by Xxxxxxxxx Asheville Apartments LLC, a North Carolina limited liability company, for the benefit of Xxxxx Fargo Bank, N.A. and Xxxxxx Xxx, as their interests may appear, as recorded in the Office of the Buncombe County Register of Deeds (Xxxxxxxxx Asheville).

(Space above reserved for the Register of Deeds’ recording information)


Title of Document:		Assignment of Deed of Trust

Date of Document:		December 21, 2006

Assignor(s): XXXXX FARGO BANK, N.A., a national banking association

Assignee(s):XXXXXX XXX, a corporation organized and existing under the Federal National Mortgage

Association Charter Act, 12 U.S.C. §1716 et seq.

Assignee’s Address:		0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000

Legal Description:		See attached Exhibit A, pages A-1 through A-2

Ref:

Please return to:

N. Bump / X. Xxxx

Chicago Title Ins. Co.

000 X 00^xx Xx, 18^th floor

Kansas City, MO 64105

(000) 000-0000

File no.

CROSS REFERENCE TO:
Document No. as more particularly described herein.

Prepared by and, after recording, return to:

XXXXX X. XXXXXX, ESQ.
c/o ARENT FOX PLLC
0000 XXXXXXXX
XXX XXXX, XX 00000

ASSIGNMENT OF DEED OF TRUST

THIS ASSIGNMENT OF DEED OF TRUST (“Assignment”) is made and entered into as of December 21, 2006, by and between XXXXX FARGO BANK, N.A., a national banking association organized and existing under the laws of the United States of America, whose address is 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, XxXxxx, Xxxxxxxx 00000, as beneficiary (“Assignor”) and XXXXXX XXX, a corporation organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. §1716 et seq., as amended from time to time, having an office at 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 20016 (“Assignee”).

W I T N E S S E T H:

That for good and valuable consideration, Assignor does hereby assign, sell, convey, transfer, set over and deliver to Assignee all of Assignor’s right, title, and interest in and to the real property located in the County of Xxxxxxx, State of Missouri, as more particularly described in EXHIBIT “A” together with the security instrument described on EXHIBIT “B” (the “Security Instrument”) together with the note or notes therein described or referred to, the money due and to become due thereon with interest, and all rights accrued or to accrue under said Security Instrument.

WITNESS, this Assignment has been duly executed as of the day and year first above written.

XXXXX FARGO BANK, N.A., a national banking association


By:	/s/ Xxxxxx X. Xxxxxx

	Name: Title:	Xxxxxx X. Xxxxxx, MAI, CCIM Senior Vice President


		STATE OF __________			)
					) ss.:
		COUNTY OF __________			)

On this day of December in the year 2006 before me, a Notary Public, in and for said state, personally appeared Xxxxxx X. Xxxxxx, MAI, CCIM (name of officer), Senior Vice President (title of person, president, vice president, etc.), Xxxxx Fargo Bank, N.A., a national banking association (name of corporation), known to me to be the person who executed the within Assignment of Deed of Trust (type of document) in behalf of said national banking association and acknowledged to me that he/she/they executed the same for the purposes xxxxxxx stated.

Notary Public

Printed Name:
My Commission Expires:

EXHIBIT “A”

Legal Description

Now known as:

All of LOT 1-A, INDEPENDENCE CENTER, REPLAT A, a subdivision of
land in the City of Independence, Xxxxxxx County, Missouri,
according to the recorded plat thereof.

EXHIBIT “B”

That certain Multifamily Deed of Trust, Assignment of Rents and Security Agreement, dated as of December 21, 2006, among CSI, L.L.C., a limited liability company organized and existing under the laws of the State of Missouri, as trustor, whose address is c/o America First Apartment Investors, Inc., Xxx Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxx Xxxx 00000 (“Borrower”) to Xxxxxxx X. Xxxxxx, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, as trustee (“Trustee”), for the benefit of XXXXX FARGO BANK, N.A., a national banking association organized and existing under the laws of the United States, whose address is 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, XxXxxx, Xxxxxxxx 00000 (“Xxxxx Fargo”) and XXXXXX XXX, a federally chartered and stockholder-owned corporation organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. § 1716, et seq. (together with its successors and assigns, “Xxxxxx Xxx”), whose address is 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, Xxxxxxxx xx Xxxxxxxx 00000, as beneficiaries, as recorded simultaneously herewith in Book , Page .

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Title of Document: Multifamily Deed of Trust, Assignment of Rents and Security Agreement Date of Document: December 21, 2006 Grantor(s): CSI, L.L.C., a Missouri limited liability company Grantee(s):WELLS FARGO BANK, N.A., a national banking...

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