EXHIBIT 99-b21
REPLACEMENT RESERVE AND SECURITY AGREEMENT
This REPLACEMENT RESERVE AND SECURITY AGREEMENT (this "Agreement") is
made this 4th day of April, 2001, by CAC III Limited Partnership, a Virginia
limited partnership ("Borrower"), and ARCS Commercial Mortgage Co., L.P., a
California limited partnership, its successors, transferees and assigns
("Lender").
RECITALS:
A. This Agreement is being executed in connection with Lender's making a
mortgage loan to Borrower in the original principal amount of $15,680,000.00
(the "Loan"). The proceeds of the Loan will be used to finance a 472 unit
multifamily project known as Silver Brook I Apartments, and located in Grand
Prairie, Texas (the "Property").
B. The Loan is evidenced by a Multifamily Note (including any addenda, the
"Note"), and is secured by a Multifamily Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing (including any riders, the "Security
Instrument") granting a lien on the Property. The Note, Security Instrument,
this Agreement and all other documents executed in connection with the Loan are
collectively referred to as the "Loan Documents."
C. Lender requires as a condition to the making of the Loan that Borrower enter
into this Agreement and make certain deposits with Lender as provided in this
Agreement as additional security for all of Borrower's obligations under the
Loan Documents.
AGREEMENT:
NOW, THEREFORE, in consideration of the above and the mutual promises
contained in this Agreement, the receipt and sufficiency of which are
acknowledged, Borrower and Lender agree as follows:
1. DEPOSITS TO THE REPLACEMENT RESERVE
(a) Concurrently with the execution of this Agreement,
Borrower shall deposit with Lender the sum of $0.00 (the "Initial Deposit").
(b) Subject to the provisions of Sections 2, 10 and 16 of this
Agreement, on each date that a regularly scheduled payment of principal or
interest is due under the Note, Borrower shall deposit with Lender the
applicable Monthly Deposit (as defined in Section 1(c) of this Agreement).
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(c) The "Monthly Deposit" required to be made each month
during the term of the Loan is set forth below:
Amount of Monthly Deposit Period
------------------------- ------
$10,030.00 June 1, 2001 through May 1, 2004
$12,586.67 June 1, 2004 through the date that all amounts due and
payable under the Note and Security
Instrument have been paid in full.
(d) Lender shall deposit any Initial Deposit and each Monthly
Deposit, as received, in an interest-bearing account (the "Replacement Reserve")
which meets the standards for custodial accounts as required by Lender from time
to time. (The Initial Deposit, if any, the Monthly Deposits and all other funds
in the Replacement Reserve are referred to collectively as the "Replacement
Reserve".) Lender or a designated representative of Lender shall have the sole
right to make withdrawals from such account. All interest earned on funds in the
Replacement Reserve shall be added to and become part of the Replacement
Reserve. Lender shall not be responsible for any losses resulting from the
investment of the Replacement Reserve or for obtaining any specific level or
percentage of earnings on such investment. If applicable law requires and
provided that no default or Event of Default exists under any of the Loan
Documents, Lender shall pay to Borrower the interest earned on the Replacement
Reserve monthly each year.
2. LOANS WITH TERMS OVER 10 YEARS. If the Loan term exceeds 10
years, then, no earlier than the 6th month and no later than the 9th month of
the year which commences on the 10th anniversary of the date of this Agreement
(and the 20th anniversary of the date of this Agreement if the Loan term exceeds
20 years), a physical needs assessment shall be performed on the Property by
Lender at the expense of Borrower, which expense may be paid of out of the
Replacement Reserve. If determined necessary by Lender, after review of the
physical needs assessment, Borrower's required Monthly Deposits to the
Replacement Reserve set forth shall be adjusted for the remaining Loan term so
that the Monthly Deposits will create a Replacement Reserve that will in
Lender's determination, be sufficient to meet required Replacements (defined
below).
3. REPLACEMENT RESERVE IS ADDITIONAL SECURITY.
(a) Borrower assigns to Lender the Replacement Reserve as
additional security for all of the Borrower's obligations under the Loan
Documents; provided, however, Lender shall make disbursements from the
Replacement Reserve in accordance with the terms of this Agreement.
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(b) Except as otherwise provided in Sections 4(f) and 6.1 of
this Agreement, Lender shall make disbursements from the Replacement Reserve to
reimburse Borrower for the costs of those items listed on Exhibit A (the
"Replacements") in accordance with the provisions of Section 4. Lender shall not
be obligated to make disbursements from the Replacement Reserve to reimburse
Borrower for the costs of routine maintenance to the Property or for costs which
are to be reimbursed from funds deposited with Lender pursuant to a
Completion/Repair and Security Agreement or any similar agreement.
4. DISBURSEMENTS FROM REPLACEMENT RESERVE.
(a) Upon written request from Borrower and satisfaction of the
requirements set forth in Sections 4 and 5 of this Agreement, Lender shall
disburse to Borrower amounts from the Replacement Reserve necessary to reimburse
Borrower for the actual approved costs of the Replacements. Lender shall not be
obligated to make disbursements from the Replacement Reserve to reimburse
Borrower for the costs of routine maintenance to the Property or for costs which
are to be reimbursed from funds deposited with Lender pursuant to a
Completion/Repair and Security Agreement or any similar agreement. In no event
shall Lender be obligated to disburse funds from the Replacement Reserve if a
default or Event of Default exists under this Agreement or any of the other Loan
Documents.
(b) Each request for disbursement from the Replacement Reserve
shall be in a form specified or approved by Lender and shall include (i) the
specific Replacements for which the disbursement is requested, (ii) the quantity
and price of each item purchased, if the Replacement includes the purchase or
replacement of specific items, (iii) the price of all materials (grouped by type
or category) used in any Replacement other than the purchase or replacement of
specific items, and (iv) the cost of all contracted labor or other services
applicable to each Replacement for which such request for disbursement is made.
With each request, Borrower shall certify that all Replacements have been made
in accordance with all applicable laws, ordinances, and regulations of any
governmental office or authority having jurisdiction over the Property. Each
request for disbursement shall include copies of invoices for all items or
materials purchased and all contracted labor or services provided and, unless
Lender has agreed to issue joint checks pursuant to Section 4(d) in connection
with a particular Replacement, each request shall include evidence satisfactory
to Lender of payment of all such amounts.
(c) Each request for disbursement from the Replacement Reserve
shall be made only after completion of the Replacement for which disbursement is
requested. Borrower shall provide Lender evidence satisfactory to Lender in its
reasonable judgment, of completion.
(d) If the cost of a Replacement exceeds $50,000.00 and the
contractor performing the Replacement requires periodic payments pursuant to the
terms of a written contract, Lender at its discretion may approve in writing
periodic payments for work performed
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under such contract. A request for reimbursement from the Replacement Reserve
may be made after completion of a portion of the work under such contract,
provided (i) such contract requires payment upon completion of such portion of
work, (ii) the materials for which the request is made are on site at the
Property and are properly secured or have been installed in the Property, (iii)
all other conditions in this Agreement for disbursement have been satisfied,
(iv) funds remaining in the Replacement Reserve are, in Lender's judgment,
sufficient to complete such Replacement and the other Replacements when required
and (v) if required by Lender, each contractor or subcontractor receiving
payments under such contract shall provide a waiver of lien with respect to
amounts which have been paid to that contractor or subcontractor.
(e) Borrower shall not make a request for disbursement from
the Replacement Reserve more frequently than once in any quarter and (except in
connection with the final disbursement) the total cost of all Replacements in
any request shall not be less than $5,000.00.
(f) In the event Borrower requests a disbursement from the
Replacement Reserve to reimburse Borrower for labor or materials for
replacements other than the Replacements specified on Exhibit A, Borrower shall
disclose in writing to Lender why funds in the Replacement Reserve should be
used to pay for such replacements. If Lender determines that such replacements
are of the type intended to be covered by this Agreement, the costs for such
replacements are reasonable, and all other conditions for disbursement under
this Agreement have been met, Lender may at its discretion disburse funds from
the Replacement Reserve.
5. PERFORMANCE OF REPLACEMENTS.
5.1 WORKMANLIKE COMPLETION
(a) Borrower shall make each Replacement when required in
order to keep the Property in good order and repair and in a good marketable
condition and to keep the Property or any portion thereof from deteriorating.
Borrower shall complete all Replacements in a good and workmanlike manner as
soon as practicable following the commencement of making each such Replacement.
(b) Lender shall have the right to approve all contracts or
work orders with materialmen, mechanics, suppliers, subcontractors, contractors
or other parties providing labor or materials in connection with the
Replacements. Upon Lender's request, Borrower shall assign any contract or
subcontract to Lender.
(c) In the event Lender determines in its sole discretion that
any Replacement is not being performed or completed in a workmanlike or timely
manner. Lender shall have the option to withhold disbursement for such
unsatisfactory Replacement, and may proceed under existing contracts or contract
with third parties to complete such Replacement and to apply the Replacement
Reserve toward the labor and materials necessary to complete such Replacement,
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without providing any prior notice to Borrower and to exercise any and all other
remedies available to Lender upon a default or Event of Default.
(d) If at any time during the term of the Loan, Lender
determines that replacements not listed on Exhibit A are advisable to keep the
Property in good order and repair and in a good marketable condition, or to
prevent deterioration of the Property (the "Additional Replacements") Lender may
send Borrower written notice of the need for making such Additional
Replacements. Borrower shall promptly commence making such Additional
Replacements in accordance with all the requirements of the Security Instrument.
Reimbursement from the Replacement Reserve for such Additional Replacements
shall not be made unless Lender has determined to do so pursuant to Section
4(f). Except for Section 4, all references in this Agreement to "Replacements"
shall include the "Additional Replacements."
(e) In order to facilitate Lender's completion or making the
Replacements pursuant to Sections 5(c) and (d) above, Lender is granted the
right to enter onto the Property and perform any and all work and labor
necessary to complete or make the Replacements and employ watchmen to protect
the Property from damage. All sums so expended by Lender shall be deemed to have
been advanced to Borrower and secured by the Security Instrument. For this
purpose Borrower constitutes and appoints Lender its true and lawful
attorney-in-fact with full power of substitution to complete or undertake the
Replacements in the name of Borrower. Borrower empowers said attorney-in-fact as
follows: (i) to use any funds in the Replacement Reserve for the purpose of
making or completing the Replacements; (ii) to make such additions, changes and
corrections to the Replacements as shall be necessary or desirable to complete
the Replacements; (iii) to employ such contractors, subcontractors, agents,
architects and inspectors as shall be required for such purposes; (iv) to pay,
settle or compromise all existing bills and claims which are or may become liens
against the Property, or as may be necessary or desirable for the completion of
the Replacements, or for the clearance of title; (v) to execute all applications
and certificates in the name of Borrower which may be required by any of the
contract documents; (vi) to prosecute and defend all actions or proceedings in
connection with the Property or the rehabilitation and repair of the Property;
and (vii) to do any and every act which Borrower might do in its own behalf to
fulfill the terms of this Agreement. It is further understood and agreed that
this power of attorney, which shall be deemed to be a power coupled with an
interest, cannot be revoked. Borrower specifically agrees that all power granted
to Lender under this Agreement may be assigned by it to its successors or
assigns as holder of the Note.
(f) Nothing in this Section 5 shall make Lender responsible
for making or completing the Replacements, require Lender to expend funds in
addition to the Replacement Reserve to make or complete any Replacement,
obligate Lender to proceed with the Replacements, or obligate Lender to demand
from Borrower additional sums to make or complete any Replacement.
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5.2 ENTRY ONTO PROPERTY; INSPECTIONS.
(a) Borrower shall permit Lender or Lender's representatives
(including an independent person such as an engineer, architect, or inspector)
or third parties making Replacements pursuant to Section 5.1 of this Agreement,
to enter onto the Property during normal business hours (subject to the rights
of tenants under their leases) to inspect the progress of any Replacements and
all materials being used in connection therewith, to examine all plans and shop
drawings relating to such Replacements which are or may be kept at the Property,
and to complete any replacements made pursuant to Section 5.1. Borrower agrees
to cause all contractors and subcontractors reasonably to cooperate with Lender
or Lender's representatives or such other persons described above in connection
with inspections described in this Section 5.2 or the completion of Replacements
pursuant to Section 5.1.
(b) Lender may inspect the Property in connection with any
Replacement prior to disbursing funds from the Replacement Reserve. Lender, at
Borrower's expense, also may require an inspection by an appropriate independent
qualified professional selected by Lender and a copy of a certificate of
completion by an independent qualified professional acceptable to Lender prior
to the disbursement of any amounts from the Replacement Reserve. Borrower shall
pay Lender a reasonable inspection fee not exceeding $1,000.00 for each such
inspection.
5.3 LIEN-FREE COMPLETION.
(a) Borrower covenants and agrees that each of the
Replacements and all materials, equipment, fixtures, or any other item
comprising a part of any Replacement shall be constructed, installed or
completed, as applicable, free and clear of all mechanic's, materialman's or
other liens (except for those liens existing on the date of this Agreement which
have been approved in writing by Lender).
(b) Prior to each disbursement from the Replacement Reserve,
Lender may require Borrower to provide Lender with a search of title to the
Property effective to the date of the release, which search shows that no
mechanic's or materialmen's liens or other liens of any nature have been placed
against the Property since the date this Agreement (other than liens which
Borrower is diligently contesting in good faith and which have been bonded off
to the satisfaction of Lender) and that title to the Property is free and clear
of all liens (other than the lien of the Security Instrument and any other liens
previously approved in writing by the Lender, if any).
(c) In addition, as a condition to any disbursement, Lender
may require Borrower to obtain from each contractor, subcontractor, or
materialman an acknowledgement of payment and release of lien for work performed
and materials supplied. Any such acknowledgement and release shall conform to
the requirements of applicable law and shall cover all work performed and
materials supplied (including equipment and fixtures) for the Property by that
contractor,
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subcontractor or materialman through the date covered by the current
reimbursement request (or, in the event that payment to such contractor,
subcontractor or materialmen is to be made by a joint check, the release of lien
shall be effective through the date covered by the previous release of funds
request.)
5.4 COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS.
(a) All Replacements shall comply with all applicable laws,
ordinances, rules and regulations of all governmental authorities having
jurisdiction over the Property and applicable insurance requirements including,
without limitation, applicable building codes, special use permits,
environmental regulations, and requirements of insurance underwriters.
(b) In addition to any insurance required under the Security
Instrument, Borrower shall provide or cause to be provided worker's compensation
insurance, builder's risk, and public liability insurance and other insurance to
the extent required under applicable law in connection with a particular
Replacement. All such policies shall be in form and amount satisfactory to
Lender. All such policies which can be endorsed with standard mortgagee clauses
making loss payable to Lender or its assigns shall be so endorsed. The originals
of such policies shall be delivered to Lender.
6. DEFAULT.
6.1 DEFAULT UNDER THIS AGREEMENT. Borrower shall be in default
under this Agreement if it fails to comply with any provision of this Agreement
and such failure is not cured within 10 days after notice from Lender. Borrower
understands that a default under this Agreement shall be deemed to be an Event
of Default under the Security Instrument, and that in addition to the remedies
specified in this Agreement, Lender shall be able to exercise all of its rights
and remedies under the Security Instrument upon an Event of Default.
6.2 APPLICATION OF REPLACEMENT RESERVE UPON DEFAULT.
(a) Upon the occurrence of a default under this Agreement or
an Event of Default under the Security Instrument, Borrower shall immediately
lose all of its rights to receive disbursements from the Replacement Reserve
unless and until all amounts secured by the Security Instrument have been paid
and the lien of the Security Instrument has been released by Lender. Upon any
such default or Event of Default, Lender may in its sole and absolute
discretion, use the Replacement Reserve (or any portion thereof) for any
purpose, including but not limited to (i) repayment of any indebtedness secured
by the Security Instrument, including but not limited to principal prepayments
and the prepayment premium applicable to such full or partial prepayment (as
applicable); provided, however, that such application of funds shall not cure or
be deemed to cure any default or Event of Default; (ii) reimbursement of Lender
for all losses and expenses (including, without limitation, reasonable legal
fees) suffered or incurred by
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Lender as a result of such default or Event of Default; (iii) completion of the
Replacement as provided in Section 5.1, or for any other repair or replacement
to the Property; or (iv) payment of any amount expended in exercising (and
exercise) all rights and remedies available to Lender at law or in equity or
under this Agreement or under any of the other Loan Documents.
(b) Nothing in this Agreement shall obligate Lender to apply
all or any portion of the Replacement Reserve on account of any default or Event
of Default by Borrower or to repayment of the indebtedness secured by the
Security Instrument or in any specific order of priority.
7. BORROWER'S OTHER OBLIGATIONS. Nothing contained in this
Agreement shall alter, impair or affect the obligations of Borrower, or relieve
Borrower of any of its obligations to make payments and perform all of its other
obligations required under the Loan Documents.
8. REMEDIES CUMULATIVE. None of the rights and remedies conferred
upon or reserved to Lender under this Agreement is intended to be exclusive of
any other rights, and each and every right shall be cumulative and concurrent,
and may be enforced separately, successively or together, and may be exercised
from time to time as often as may be deemed necessary Lender.
9. ENFORCEMENT OF AGREEMENT. This Agreement is executed by
Borrower and Lender for the benefit of Lender. Borrower understands and agrees
that in connection with the anticipated sale or assignment and delivery of the
Loan to Xxxxxx Xxx, this Agreement may be assigned to Xxxxxx Mae.
10. BALANCE IN THE REPLACEMENT RESERVE. The insufficiency of any
balance in the Replacement Reserve shall not abrogate the Borrower's agreement
to fulfill all preservation and maintenance covenants in the Loan Documents. In
the event that the balance of the Replacement Reserve is less than the current
estimated cost to make the Replacements required by the Lender, Borrower shall
deposit the shortage within 10 days of request by Lender. In the event Lender
determines from time to time based on Lender's inspections, that the amount of
the Monthly Deposit is insufficient to fund the cost of likely Replacements and
related contingencies that may arise during the remaining term of the Loan,
Lender may require an increase in the amount of the Monthly Deposits upon 30
days prior written notice to Borrower.
11. INDEMNIFICATION. Borrower agrees to indemnify Lender and to
hold Lender harmless from and against any and all actions, suits, claims,
demands, liabilities, losses, damages, obligations and costs and expenses
(including litigation costs and reasonable attorneys' fees and expenses) arising
from or in any way connected with the performance of the Replacements or the
holding or investment of the Replacement Reserve. Borrower assigns to Lender all
rights and claims Borrower may have against all persons or entities supplying
labor or materials in connection with the Replacements; provided, however, that
Lender may not pursue
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any such right or claim unless a default or Event of Default exists under this
Agreement or the Security Instrument.
12. DETERMINATIONS BY LENDER. In any instance in this Agreement
where the consent or approval of Lender may be given or is required, or where
any determination, judgment or decision is to be rendered by Lender under this
Agreement, the granting, withholding or denial of such consent or approval and
the rendering of such determination, judgment or decision shall be made or
exercised by Lender (or its designated representative) at its discretion.
13. BORROWER'S RECORDS. Borrower shall furnish such financial
statements, invoices, records, papers and documents relating to the Property as
Lender may reasonably require from time to time to make the determinations
permitted or required to be made by Lender under this Agreement.
14. FEES AND EXPENSES.
(a) In addition to any other fees payable by Borrower to
Lender in connection with the Loan, Borrower shall pay Lender an annual fee of
one eighth of one percent of the average balance for its services in
administering the Replacement Reserve and investing the Replacement Reserve. The
annual fee shall be due and payable by Borrower on the date specified in a
statement to Borrower regarding such fee.
(b) Borrower shall pay within 10 days of request from Lender
(i) all reasonable costs and expenses incurred by Lender in connection with
collecting, holding and disbursing the Replacement Reserve pursuant to this
Agreement, and (ii) all reasonable fees, charges, costs and expenses incurred by
Lender in connection with inspections made by Lender or Lender's representatives
in carrying out Lender's responsibility to make certain determinations under
this Agreement.
15. Completion of Replacements. Lender's approval of any plans for any
Replacement, release of funds from the Replacement Reserve, inspection of the
Property by Lender or Lender's agents, or other acknowledgment of completion of
any Replacement in a manner satisfactory to Lender shall not be deemed an
acknowledgment or warranty to any person that the Replacement has been completed
in accordance with applicable building, zoning or other codes, ordinances,
statutes, laws, regulations or requirements of any governmental agency.
16. Transfer or Property/Transfer of Interests in Borrower. If a
Transfer shall occur or be contemplated, which Transfer requires the prior
written consent of Lender pursuant to the terms of the Security Instrument,
Lender may review the amount of the Replacement Reserve, the amount of the
Monthly Deposits and the likely repairs and replacements required by the
Property and the related contingencies which may arise during the remaining term
of the Loan. Based upon that review, Lender may require an additional deposit to
the Replacement
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Reserve, and/or an increase in the amount of the Monthly Deposits as a condition
to Lender's consent to such Transfer. In all events, the transferee shall be
required to assume Borrower's duties and obligations under this Agreement.
17. TERMINATION OF REPLACEMENT RESERVE. After payment in full of
all sums secured by the Security Instrument and release by Lender of the lien of
the Security Instrument, Lender shall disburse to Borrower all amounts remaining
in the Replacement Reserve.
18. ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement
contains the complete and entire understanding of the parties with respect to
the matters covered and no change or amendment shall be valid unless it is made
in writing and executed by the parties to this Agreement. No specific waiver or
forbearance for any breach of any of the terms of this Agreement shall be
considered as a general waiver of that or any other term of this Agreement. If
any provision of this Agreement is in conflict with any provision of the
Security Instrument regarding the Replacement Reserve, the provision contained
in this Agreement shall control.
19. NOTICES. All notices under this Agreement shall be given in
writing to the other party at the address, and in the manner, provided in the
Security Instrument.
20. SEVERABILITY. The invalidity, illegality, or unenforceability
of any provision of this Agreement pursuant to judicial decree shall not affect
the validity or enforceability of any other provision of this Agreement, all of
which shall remain in full force and effect.
21. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the jurisdiction in which the Property
is located.
22. NON-RECOURSE. This Agreement is being executed in connection
with the making of the Loan pursuant to the terms of the Note. Borrower's
liability hereunder shall be limited to the extent provided in the Note.
23. CAPITALIZED TERMS. Any capitalized terms used in this
Agreement and not specifically defined herein, shall have the meanings set forth
in the Security Instrument.
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Borrower and Lender have executed this Agreement on the date and year
first above written.
BORROWER:
CAC III Limited Partnership,
a Virginia limited partnership
By: CAC III Special General, Inc.
a Virginia corporation
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Its: Vice President
LENDER:
ARCS Commercial Mortgage Co., L. P.,
a California limited partnership
By: ACMC Realty, Inc.,
a California corporation
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx
Its: Executive Vice President
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EXHIBIT A
REPLACEMENTS
[Attach and label as Exhibit A a copy of the completed Evaluator's
Summary: Physical Needs Over the Term or a comparable listing prepared by
Lender]
A-1
