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MULTIFAMILY DEED OF TRUST,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
XXXXXXX AT XXXXXXXX MILL
THIS DEED OF TRUST (herein "Instrument" is made as of this 2nd day of
December 1996, among the Trustor/Grantor Xxxxxxx Limited Partnership whose
address is 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (herein
"Borrower"), : XXX X. XXXXXX (herein "Trustee"), and the Beneficiary, GMAC
COMMERCIAL MORTGAGE CORPORATION, a corporation organized and existing under
the laws of the State of California, whose address is 000 Xxxxxxx Xxxx, X.X.
Xxx 0000, Xxxxxxx, XX 00000-0000 (herein "Lender").
BORROWER, in consideration of the indebtedness herein recited and the
trust herein created, irrevocably grants, conveys and assigns to Trustee, in
trust, with power of sale,[] the following described property located in
_________________________________________________________ State of Texas:
*DELETE BRACKETED MATERIAL IF NOT COMPLETED.
See EXHIBIT "A" attached hereto and incorporated herein.
This Instrument has been amended and supplemented in certain
respects as set forth in (i) Rider to Multifamily Instrument and
(ii) Supplemental Rider to Multifamily Instrument (collectively,
the "Riders"), annexed hereto and incorporated herein by this
reference. In the event of any inconsistencies between the
printed portions of this Instrument and the provisions of the
Riders, the provisions of the Riders shall control.
TEXAS - Multifamily - 1/77 - FNMA/FHLMC Uniform Instrument
FORM 4044 (PAGE 1 OF 8 PAGES)
TOGETHER with all buildings, improvements, and tenements now or
hereafter erected on the property, and all heretofore or hereafter vacated
alleys and streets abutting the property, and all easements, rights,
appurtenances, rents (subject however to the assignment of rents to Lender
herein), royalties, mineral, oil and gas rights and profits, water, water
rights, and water stock appurtenant to the property, and all fixtures,
machinery, equipment, engines, boilers, incinerators, building materials,
appliances and goods of every nature whatsoever now or hereafter located in,
or on, or used, or intended to be used in connection with the property,
including, but not limited to, those for the purposes of supplying or
distributing heating, cooling, electricity, gas, water, air and light; and
all elevators, and related machinery and equipment, fire prevention and
extinguishing apparatus, security and access control apparatus, plumbing,
bath tubs, water heaters, water closets, sinks, ranges, stoves,
refrigerators, dishwashers, disposals, washers, dryers, awnings, storm
windows, storm doors, screens, blinds, shades, curtains and curtain rods,
mirrors, cabinets, panelling, rugs, attached floor coverings, furniture,
pictures, antennas, trees and plants, and any and all other additional items
of personal property, described in Exhibit "B" attached hereto and
incorporated herein; all of which, including replacements and additions
thereto, shall be deemed to be and remain a part of the real property covered
by this Instrument; and all of the foregoing, together with said property (or
the leasehold estate in the event this Instrument is on a leasehold) are
herein referred to as the "Property".
To SECURE TO LENDER (a) the repayment of the indebtedness evidenced by
Borrower's note dated of even date herewith (herein "Note") in the principal
sum of Two Million Four Hundred Eighty Eight Thousand Four Hundred
($2,488,400) Dollars, with interest thereon, with the balance of the
indebtedness, if not sooner paid, due and payable on January 1, 1999 and all
renewals, extensions and modifications thereof; (d) the payment of all other
sums, with interest thereon, advanced in accordance herewith to protect the
security of this Instrument; and (e) the performance of the covenants and
agreements of Borrower herein contained.
Borrower covenants that Borrower is lawfully seised of the estate
hereby conveyed and has the right to grant, convey and assign the Property
(and, if this Instrument is on a leasehold, that the ground lease is in full
force and effect without modification except as noted above and without
default on the part of either lessor or lessee thereunder), that the Property
is unencumbered, and that Borrower will warrant and defend generally the
title to the Property against all claims and demands, subject to any
easements and restrictions listed in a schedule of exceptions to coverage in
any title insurance policy insuring Lender's interest in the Property.
FORM 4044 (PAGE 2 OF 8 PAGES)
Uniform Covenants. Borrower and Lender covenant and agree as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay when due
the pricipal of and interest on the indebtedness evidenced by the Note, any
prepayment and late charges provided in the Note and all other sums secured
by this Instrument.
2. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. Subject to applicable law or
to a written waiver by Lender, Borrower shall pay to Lender on the day
monthly installments of principal or interest are payable under the Note (or
on another day designated in writing by Lender), until the Note is paid in
full, a sum (herein "Funds") equal to one-twelfth of (a) the yearly water and
sewer rates and taxes and assessments which may be levied on the Property,
(b) the yearly ground rents, if any, (c) the yearly premium installments for
fire and other hazard insurance, rent loss insurance and such other insurance
covering the Property as Lender may require pursuant to paragraph 5 hereof,
(d) the yearly premium installments for mortgage insurance, if any, and
(e) if this instrument is on a leasehold, the yearly fixed rents, if any, under
the ground lease, all as reasonably estimated initially and from time to time
by Lender on the basis of assessments and bills and reasonable estimates
thereof. Any waiver by Lender of a requirement that Borrower pay such Funds
may be revoked by Lender, in Lender's sole discretion, at any time upon
notice in writing to Borrower. Lender may require Borrower to pay to Lender,
in advance, such other Funds for other taxes, charges, premiums, assessments
and impositions in connection with Borrower or the Property which Lender
shall reasonably deem necessary to protect Lender's interests (herein "Other
Impositions"). Unless otherwise provided by applicable law, Lender may
require Funds for Other Impositions to be paid by Borrower in a lump sum or
in periodic installments, at Lender's option.
The Funds shall be held in an institution(s) the deposits or accounts
of which are insured or guaranteed by a Federal or state agency (including
Lender if Lender is such an institution). Lender shall apply the Funds to pay
said rates, rents, taxes, assessments, insurance premiums and Other
Impositions so long as Borrower is not in breach of any covenant or agreement
of Borrower in this Instrument. Lender shall make no charge for so holding
and applying the Funds, analyzing said account or for verifying and compiling
said assessments and bills, unless Lender pays Borrower interest, earnings or
profits on the Funds and applicable law permits Lender to make such a charge.
Borrower and Lender may agree in writing at the time of execution of this
Instrument that (interest on the Funds shall be paid to Borrower, and unless
such agreement is made or applicable law requires interest, earnings or
profits to be paid, Lender shall not be required to pay Borrower any
interest, earnings or profits on the Funds. Lender shall give to Borrower,
without charge, an annual accounting of the Funds in Lender's normal format
showing credits and debits to the Funds and the purpose for which each debit
to the Funds was made. The Funds are pledged as additional security for the
sums secured by this Instrument.
If the amount of the Funds held by Lender at the time of the annual
accounting thereof shall exceed the amount deemed necessary by Lender to
provide for the payment of water and sewer rates, taxes, assessments,
insurance premiums, rents and Other Impositions, as they fall due, such
excess shall be credited to Borrower on the next monthly installment or
installments of Funds due. If at any time the amount of the Funds held by
Lender shall be less than the amount deemed necessary by Lender to pay water
and sewer rates, taxes, assessments, insurance premiums, rents and Other
Impositions, as they fall due. Borrower shall pay to Lender any amount
necessary to make up the deficiency within thony days after notice from
Lender to Borrower requesting payment thereof.
Upon Borrower's breach of any covenant or agreement of Borrower in this
Instrument. Lender may apply, in any amount and in any order as Lender shall
determine in Lender's sole discretion, any Funds held by Lender at the time
of application (i) to pay rates, rents, taxes, assessments, insurance
premiums and Other Impositions which are now or will hereafter become due, or
(ii) as a credit against sums secured by this Instrument. Upon payment in
full of all sums secured by this Instrument, Lender shall promptly refund to
Borrower any Funds held by Lender.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise, all
payments received by Lender from Borrower under the Note or this instrument
shall be applied by Lender in the following order of priority: (i) amounts
payable to Lender by Borrower under paragraph 2 hereof; (ii) interest payable on
the Note; (iii) principal of the Note; (iv) interest payable on advances made
pursuant to paragraph 8 hereof; (v) principal of advances made pursuant to
paragraph 8 hereof; (vi) interest payable on any Future Advance, provided that
if more than one Future Advance is outstanding. Lender may apply payments
received among the amounts of interest payable on the Future Advances in such
order as Lender, in Lender's sole discretion, may determine: (vii) principal of
any Future Advance, provided that if more than one Future Advance is
outstanding. Lender may apply payments received among the principal balances of
the Future Advances in such order as Lender, in Lender's sole discretion, may
determine: and (viii) any other sums secured by this Instrument in such order as
Lender, at Lender's option, may determine; provided; however, that Lender may,
at Lender's option, apply any sums payable pursuant to paragraph 8 hereof prior
to interest on and principal of the Note, but such application shall not
otherwise affect the order of priority of application specified in this
paragraph 3.
4. CHARGES: LIENS. Borrower shall pay all water and sewer rates, rents,
taxes, assessments, premiums, and Other Impositions attributable to the
Property at Lender's option in the manner provided under paragraph 2 hereof
or, if not paid in such manner, by Borrower making payment, when due.
directly to the payee thereof, or in such other manner as Lender may
designate in writing. Borrower shall promptly furnish to Lender all notices
of amounts due under this paragraph 4, and in the event (Borrower shall make
payment directly, Borrower shall promptly furnish to Lender receipts
evidencing such payments. Borrower shall promptly discharge any lien which
has, or may have, priority over or equality with, the lien of this
Instrument, and Borrower shall pay, when due, the claims of all persons
supplying labor or materials to or in connection with the Property. Without
Lender's prior written permission, Borrower shall not allow any lien inferior
to this Instrument to be perfected against the Property.
5. HAZARD INSURANCE. Borrower shall keep the improvements now existing or
hereafter erected on the Property insured by carriers at all times
satisfactory to Lender against loss by fire, hazards included within the
term-extended coverage", rent loss and such other hazards, casualties,
liabilities and contingencies as Lender (and, if this Instrument is on a
leasehold, the ground lease) shall require and in such amounts and for such
periods as Lender shall require. All premiums on insurance policies shall be
paid, at Lender's option, in the manner provided under paragraph 2 hereof, or
by Borrower making payment, when due, directly to the carrier, or in such
other manner as Lender may designate in writing.
All insurance policies and renewals thereof shall be in a form
acceptable to Lender and shall include a standard mortgage clause in favor of
and in form acceptable to Lender. Lender shall have the right to hold the
policies, and Borrower shall promptly furnish to Lender all renewal notices
and all receipts of paid premiums. At least thirty days prior to the
expiration date of a policy. Borrower shall deliver to Lender a renewal
policy in form satisfactory to Lender. If this instrument is on a leasehold,
Borrower shall furnish Lender a duplicate of all policies, renewal notices,
renewal policies and receipts of paid premiums if, by virtue of the ground
lease, the originals thereof may not be supplied by Borrower to Lender.
In the event of loss, Borrower shall give immediate written notice to
the insurance carrier and to Lender. Borrower hereby authorizes and empowers
Lender as attorney-in-fact for Borrower to make proof of loss, to adjust and
compromise any claim under insurance policies, to appear in and prosecute any
action arising from such insurance policies, to collect and receive insurance
proceeds, and to deduct therefrom Lender's expenses incurred in the
collection of such proceeds: provided however, that nothing contained in this
paragraph 5 shall require Lender to incur any expense or take any action
hereunder. Borrower further authorizes Lender, at Lender's option, (a) to
hold the balance of such proceeds to be used to reimburse Borrower for the
cost of reconstruction or repair of the Property or (b) to apply the balance
of such proceeds to the payment of the sums secured by this Instrument,
whether or not then due, in the order of application set forth in paragraph 3
hereof (subject, however, to the rights of the lessor under the ground lease
if this Instrument is on a leasehold).
If the insurance proceeds are held by Lender to reimburse Borrower for
the cost of restoration and repair of the Property, the Property shall be
restored to the equivalent of its original condition or such other condition
as Lender may approve in writing. Lender may, at Lender's option, condition
disbursement of said proceeds on Lender's approval of such plans and
specifications of an architect satisfactory to Lender, contractor's cost
estimates, architect's certificates, waivers of liens, sworn statements of
mechanics and materialmen and such other evidence of costs, percentage
completion of construction, application of payments, and satisfaction of
liens as Lender may reasonably require. If the insurance proceeds are applied
to the payment of the sums secured by this Instrument, any such application
of proceeds to principal shall not extend or postpone the due dates of the
monthly installments referred to in paragraphs 1 and 2 hereof or change the
amounts of such installments. If the Property is sold pursuant to paragraph
27 hereof or if Lender acquires title to the Property, Lender shall have all
of the right, title and interest of Borrower in end to any insurance policies
and unearned premiums thereon and in and to the proceeds resulting from any
damage to the Property prior to such sale or acquisition.
6. PRESERVATION AND MAINTENANCE OF PROPERTY; LEASEHOLDS. Borrower (a) shall
not commit waste or permit impairment or deterioration of the Property,
(b) shall not abandon the Property, (c) shall restore or repair promptly and
in a good and workmanlike manner all
UNIFORM COVENANTS - Multifamily - 1 /77 - FNMA/FHLMC Uniform Instrument
FORM 4044 (PAGE 3 OF 8 PAGES)
or any part of the Property to the equivalent of its original condition, or
such other condition as Lender may approve in writing, in the event of any
damage, injury or loss thereto, whether or not insurance proceeds are
available to cover in whole or in part the costs of such restoration or
repair, (d) shall keep the Property, including improvements, fixtures,
equipment, machinery and appliances thereon in good repair and shall replace
fixtures, equipment, machinery and appliances on the Property when necessary
to keep such items in good repair, (e) shall comply with all laws,
ordinances, regulations and requirements of any governmental body applicable
to the Property, (f) shall provide for professional management of the
Property by a residential rental property manager satisfactory to Lender
pursuant to a contract approved by Lender in writing, unless such requirement
shall be waived by Lender in writing, (g) shall generally operate and
maintain the Property in a manner to ensure maximum rentals, and (h) shall
give notice in writing to Lender of and, unless otherwise directed in writing
by Lender, appear in and defend any action or proceeding purporting to affect
the Property, the security of this Instrument or the rights or powers of
Lender. Neither Borrower nor any tenant or other person shall remove,
demolish or alter any improvement now existing or hereafter erected on the
Property or any fixture, equipment, machinery or appliance in or on the
Property except when incident to the replacement of fixtures, equipment,
machinery and appliances with items of like kind.
If this Instrument is on a leasehold, Borrower (i) shall comply with
the provisions of the ground lease, (ii) shall give immediate written notice
to Lender of any default by lessor under the ground lease or of any notice
received by Borrower from such lessor of any default under the ground lease
by Borrower, (iii) shall exercise any option to renew or extend the ground
lease and give written confirmation thereof to Lender within thirty days
after such option becomes exercisable, (iv) shall give immediate written
notice to Lender of the commencement of any remedial proceedings under the
ground lease by any party thereto and, if required by Lender, shall permit
Lender as Borrower's attorney-in-fact to control and act for Borrower in any
such remedial proceedings and (v) shall within thirty days after request by
Lender obtain from the lessor under the ground lease and deliver to Lender
the lessor's estoppel certificate required thereunder, if any. Borrower
hereby expressly transfers and assigns to Lender the benefit of all covenants
contained in the ground lease, whether or not such covenants run with the
land, but Lender shall have no liability with respect to such covenants nor
any other covenants contained in the ground lease.
Borrower shall not surrender the leasehold estate and interests herein
conveyed nor terminate or cancel the ground lease creating said estate and
interests, and Borrower shall not, without the express written consent of
Lender, alter or amend said ground lease. Borrower covenants and agrees that
there shall not be a merger of the ground lease, or of the leasehold estate
created thereby, with the fee estate covered by the ground lease by reason of
said leasehold estate or said fee estate, or any part of either, coming into
common ownership, unless Lender shall consent in writing to such merger, if
Borrower shall acquire such fee estate, then this Instrument shall
simultaneously and without further action be spread so as to become a lien on
such fee estate.
7. USE OF PROPERTY. Unless required by applicable law or unless Lender has
otherwise agreed in writing, Borrower shall nor allow changes in the use for
which all or any part of the Property was intended at the time this Instrument
was executed. Borrower shall not initiate or acquiesce in a change in the
zoning classification of the Property without Lender's prior written consent.
8. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the
covenants and agreements contained in this Instrument, or if any action or
proceeding is commenced which affects the Property or title thereto or the
interest of Lender therein, including, but not limited to, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then Lender at Lender's option may make such
appearances, disburse such sums and take such action as Lender deems
necessary, in its sole discretion, to protect Lender's interest, including,
bur not limited to, (i) disbursement of attorney's fees, (ii) entry upon the
Property to make repairs, (iii) procurement of satisfactory insurance as
provided in paragraph 5 hereof, and (iv) if this Instrument is on a
leasehold, exercise of any option to renew or extend the ground lease on
behalf of Borrower and the curing of any default of Borrower in the terms and
conditions of the ground lease.
Any amounts disbursed by Lender pursuant to this paragraph 8, with
interest thereon, shall become additional indebtedness of Borrower secured by
this Instrument. Unless Borrower and Lender agree to other terms of payment,
such amounts shall be immediately due and payable and shall bear interest
from the date of disbursement at the rate stated in the Note unless
collection from Borrower of interest at such rate would be contrary to
applicable law, in which event such amounts shall bear interest at the
highest rate which may be collected from Borrower under applicable law.
Borrower hereby covenants and agrees that Lender shall be subrogated to the
lien of any mortgage or other lien discharged, in whole or in part, by the
indebtedness secured hereby. Nothing contained in this paragraph 8 shall
require Lender to incur any expense or take any action hereunder.
9. INSPECTION. Lender may make or cause to be made reasonable entries upon
and inspections of the Property.
SEE ATTACHED RIDER TO MULTIFAMILY INSTRUMENT
11. CONDEMNATION. Borrower shall promptly notify Lender of any action or
proceeding relating to any condemnation or other taking, whether direct or
indirect, of the Property. or part thereof, and Borrower shall appear in and
prosecute any such anion or proceeding unless otherwise directed by Lender in
writing. Borrower authorizes Lender, at Lender's option, as attorney-in-fact
for Borrower, to commence, appear in and prosecute, in Lender's or Borrower's
name, any action or proceeding relating to any condemnation or other taking
of the Property, whether direct or indirect, and to settle or compromise any
claim in connection with such condemnation or other taking. The proceeds of
any award, payment or claim for damages, direct or consequential, in
connection with any condemnation or other taking, whether direct or indirect,
of the Property, or part thereof, or for conveyances in lieu of condemnation,
are hereby assigned to and shall be paid to Lender subject, if this
Instrument is on a leasehold, to the rights of lessor under the ground lease.
Borrower authorizes Lender to apply such awards, payments, proceeds or
damages, after the deduction of Lender's expenses incurred in the collection
of such amounts, at Lender's option, to restoration or repair of the Property
or to payment of the sums secured by this Instrument, whether or not then
due, in the order of application set forth in paragraph 3 hereof, with the
balance, if any, to Borrower. Unless Borrower and Lender otherwise agree in
writing, any application of proceeds to principal shall not extend or
postpone the due date of the monthly installments referred to in paragraphs 1
and 2 hereof or change the amount of such installments. Borrower agrees to
execute such further evidence of assignment of any awards, proceeds, damages
or claims arising in connection with such condemnation or taking as Lender
may require.
12. BORROWER AND LIEN NOT RELEASED. From time to time, Lender may, at
Lender's option, without giving notice to or obtaining the consent of
Borrower, Borrower's successors or assigns or of any junior lienholder or
guarantors, without liability on Lender's part and notwithstanding Borrower's
breach of any covenant or agreement of Borrower in this Instrument, extend
the time for payment of said indebtedness or any part thereof, reduce the
payments thereon, release anyone liable on any of said indebtedness, accept a
renewal note or notes therefor, modify the terms and time of payment of said
indebtedness, release from the lien of this Instrument any part of the
Property, take or release other or additional security, reconvey any part of
the Property, consent to any map or plan of the Property, consent to the
granting of any easement, join in any extension or subordination agreement,
and agree in writing with Borrower to modify the rate of interest or period
of amortization of the Note or change the amount of the monthly installments
payable thereunder. Any actions taken by Lender pursuant to the terms of this
paragraph 12 shall not affect the obligation of Borrower or Borrower's
successors or assigns to pay the sums secured by this Instrument and to
observe the covenants of Borrower contained herein, shall not affect the
guaranty of any person, corporation, partnership or other entity for payment
of the indebtedness secured hereby, and shall not affect the lien or priority
of lien hereof on the Property. Borrower shall pay Lender a reasonable
service charge, together with such title insurance premiums and attorney's
fees as may be incurred at Lender's option, for any such action if taken at
Borrower's request.
13. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in
exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any right or
remedy. The acceptance by Lender of payment of any sum secured by this
Instrument after the due date of such payment shall not be a waiver of
Lender's right to either require prompt payment when due of all other sums so
secured or to declare a default for failure to make prompt payment. The
procurement of insurance or the payment of taxes or other liens or charges by
Lender shall not be a waiver of Lender's right to accelerate the maturity of
the indebtedess secured by this Instrument, nor shall Lender's receipt of any
awards, proceeds or damages under paragraphs 5 and 11 hereof operate to cure
or waive Borrower's default in payment of sums secured by this Instrument.
FORM 4044 (PAGE 4 OF 8 PAGES)
14. ESTOPPEL CERTIFICATE. Borrower shall within ten days of a written request
from Lender furnish Lender with a written statement, duly acknowledged,
setting forth the sums secured by this Instrument and any right of sef-off,
counterclaim or other defense which exists against such sums and the
obligations of this Instrument.
15. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Instrument is intended
to be a security agreement pursuant to the Uniform Commercial Code for any of
the items specified above as part of the Property which, under applicable
law, may be subject to a security interest pursuant to the Uniform Commercial
Code, and Borrower hereby grants Lender a security interest in said items.
Borrower agrees that Lender may file this Instrument, or a reproduction
thereof, in the real estate records or other appropriate index, as a
financing statement for any of the items specified above as part of the
Property. Any reproduction of this Instrument or of any other security
agreement or financing statement shall be sufficient as a financing
statement. In addition, Borrower agrees to execute and deliver to Lender,
upon Lender's request, any financing statements, as well as extensions,
renewals and amendments thereof, and reproductions of this Instrument in such
form as Lender may require to perfect a security interest with respect to
said items. Borrower shall pay all costs of filing such financing statements
and any extensions, renewals, amendments and releases thereof, and shall pay
all reasonable costs and expenses of any record searches for financing
statements Lender may reasonably require. Without the prior written consent
of Lender, Borrower shall not create or suffer to be created pursuant to the
Uniform Commercial Code any other security interest in said items, including
replacements and additions thereto. Upon Borrower's breach of any covenant or
agreement of Borrower contained in this Instrument, including the covenants
to pay when due all sums secured by this Instrument, Lender shall have the
remedies of a secured party under the Uniform Commercial Code and, at
Lender's option, may also invoke the remedies provided in paragraph 27 of
this Instrument as to such items. In exercising any of said remedies, Lender
may proceed against the items of real property and any items of personal
property specified above as part of the Property separately or together and in
any order whatsoever, without in any way affecting the availability of
Lender's remedies under the Uniform Commercial Code or of the remedies
provided in paragraph 27 of this Instrument.
16. LEASES OF THE PROPERTY. As used in this paragraph 16, the word "lease"
shall mean "sublease" if this Instrument is on a leasehold. Borrower shall
comply with and observe Borrower's obligations as landlord under all leases
of the Property or any part thereof. Borrower will not lease any portion of
the Property for non-residential use except with the prior written approval
of Lender. Borrower, at Lender's request, shall furnish Lender with executed
copies of all leases now existing or hereafter made of all or any part of the
Property, and all leases now or hereafter entered into will be in form and
substance subject to the approval of Lender. All leases of the Property shall
specifically provide that such leases are subordinate to this Instrument;
that the tenant attorns to Lender, such attornment to be effective upon
Lender's acquisition of title to the Property; that the tenant agrees to
execute such further evidences of attornment as Lender may from time to time
request; that the attornment of the tenant shall not be terminated by
foreclosure; and that Lender may, at Lender's option. accept or reject such
attornments. Borrower shall not, without Lender's written consent, execute,
modify, surrender or terminate, either orally or in writing, any lease now
existing or hereafter made of all or any part of the Property providing for a
term of three years or more, permit an assignment or sublease of such a lease
without Lender's written consent, or request or consent to the subordination
of any lease of all or any part of the Property to any lien subordinate to
this Instrument. If Borrower becomes aware that any tenant proposes to do, or
is doing, any act or thing which may give rise to any right of set-off
against rent, Borrower shall (i) take such steps as shall be reasonably
calculated to prevent the accrual of any right to a set-off against rent,
(ii) notify Lender thereof and of the amount of said set-offs, and (iii)
within ten days after such accrual, reimburse the tenant who shall have
acquired such right to set-off or take such other steps as shall effectively
discharge such set-off and as shall assure that rents thereafter due shall
continue to be payable without set-off or deduction.
Upon Lender's request, Borrower shall assign to Lender, by written
instrument satisfactory to Lender, all leases now existing or hereafter made
of all or any part of the Property and all security deposits made by tenants
in connection with such leases of the Property. Upon assignment by Borrower
to Lender of any leases of the Property, Lender shall have all of the rights
and powers possessed by Borrower prior to such assignment and Lender shall
have the right to modify, extend or terminate such existing leases and to
execute new leases, in Lender's sole discrection.
17. REMEDIES CUMULATIVE. Each remedy provided in this Instrument is distinct
and cumulative to all other rights or remedies under this Instrument or
afforded by law or equity, and may be exercised concurrently, independently,
or successively, in any order whatsoever.
18. ACCELERATION IN CASE OF BORROWER'S INSOLVENCY. If Borrower shall
voluntarily file a petition under the Federal Bankruptcy Act, as such Act may
from time to time be amended, or under any similar or successor Federal
statute relating to bankruptcy, insolvency, arrangements or reorganizations,
or under any state bankruptcy or insolvency act, or file an answer in an
involuntary proceeding admitting insolvency or inability to pay debts, or if
Borrower shall fail to obtain a vacation or stay of involuntary proceedings
brought for the reorganization, dissolution or liquidation of Borrower, or if
Borrower shall be adjudged a bankrupt, or if a trustee or receiver shall be
appointed for Borrower or Borrower's property, or if the Property shall
become subject to the jurisdiction of a Federal bankruptcy court or similar
state court, or if Borrower shall make an assignment for the benefit of
Borrower's creditors, or if there is an attachment, execution or other
judicial seizure of any portion of Borrower's assets and such seizure is not
discharged within ten days, then Lender may, at Lender's option, declare all
of the sums secured by this Instrument to be immediately due and payable
without prior notice to Borrower, and Lender may invoke any remedies
permitted by paragraph 27 of this Instrument. Any attorney's fees and other
expenses incurred by Lender in connection with Borrower's bankruptcy or any
of the other aforesaid events shall be additional indebtedness of Borrower
secured by this instrument pursuant to paragraph 8 hereof.
SEE ATTACHED RIDER TO MULTIFAMILY INSTRUMENT
SEE ATTACHED RIDER TO MULTIFAMILY INSTRUMENT
21. SUCCESSORS AND ASSIGNS BOUND: JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements herein contained shall bind, and the
rights hereunder shall inure to, the respective successors and assigns of
Lender and Borrower, subject to the provisions of paragraph 19 hereof. All
covenants and agreements of Borrower shall be joint and several. In
exercising any rights hereunder or taking any actions provided for herein,
Lender may act through its employees, agents or independent contractors as
authorized by Lender. The captions and headings of the paragraphs of this
Instrument are for convenience only and are not to be used to interpret or
define the provisions hereof.
22. UNIFORM MULTIFAMILY INSTRUMENT; GOVERNING LAW; SEVERABILTY. This form of
multifamily instrument combines uniform covenants for national use and
non-uniform covenants with limited variations by jurisdiction to constitute a
uniform security instrument covering real property and related fixtures and
personal property. This Instrument shall be governed by the law of the
jurisdiction in which the Property is located. In the event that any
provision of this Instrument or the Note contains with applicable law, such
conflict shall not affect other provisions of this Instrument or the Note
which can be given effect without the conflicting provisions, and to this end
the provisions of this
FORM 4044 (PAGE 5 OF 8 PAGES)
Instrument and the Note are declared to be severable. In the event that 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
this Instrument or in the Note, whether considered separately or together
with other charges levied in connection with this Instrument and the Note,
violates such law, and Borrower is entitled to the benefit of such law, such
charge is hereby reduced to the extent necessary to eliminate such violation.
The amounts, if any, previously paid to Lender in excess of the amounts
payable to Lender pursuant to such charges as reduced shall be applied by
Lender to reduce the principal of the indebtedness evidenced by the Note. 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 is secured by this instrument or evidenced
by the Note and which constitutes interest, as well as all other charges
levied in connection with such 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 computed thereby is
uniform throughout the stated term of the Note.
23. 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 the Note or any other
obligation secured by this instrument.
24. WAIVER OF MARSHALLING. Norwithstanding the existence of any other
security interests in the Property held by Lender or by any other party.
Lender shall have the right to determine the order in which any or all of the
Property shall be subjected to the remedies provided herein. Lender shall
have the right to determine the order in which any or all portions of the
indebtedness secured hereby are satisfied from the proceeds realized upon the
exercise of the remedies provided herein. Borrower, any party who consents to
this Instrument and any party who now or hereafter acquires a security
interest in the Property and who has actual or constructive notice hereof
hereby waives any and all right to require the marshalling of assets in
connection with the exercise of any of the remedies permitted by applicable
law or provided herein.
26. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION. As
part of the consideration for the indebtedness evidenced by the Note.
Borrower hereby absolutely and unconditionally assigns and transfers to
Lender all the rents and revenues of the Property, including those now due,
past due, or to become due by virtue of any lease or other agreement for the
occupancy or use of all or any part of the Property, regardless of to whom
the rents and revenues of the Property are payable. Borrower hereby
authorizes Lender or Lender's agents to collect the aforesaid rents and
revenues and hereby directs each tenant of the Property to pay such rents to
Lender or Lender's agents; provided, however, that prior to written notice
given by Lender to Borrower of the breach by Borrower of any covenant or
agreement of Borrower in this instrument, Borrower shall collect and receive
all rents and revenues of the Property as trustee for the benefit of Lender
and Borrower, to apply the rents and revenues so collected to the sums
secured by this Instrument in the order provided in paragraph 3 hereof with
the balance, so long as no such breach has occurred, to the account of
Borrower, it being intended by Borrower and Lender that this assignment of
rents constitutes an absolute assignment and not an assignment for additional
security only. Upon delivery of written notice by Lender to Borrower of the
breach by Borrower of any covenant or agreement of Borrower in this
Instrument, and without the necessity of Lender entering upon and taking and
maintaining full control of the Property in person, by agent or by a
court-appointed receiver, Lender shall immediately be entitled to possession
of all rents and revenues of the Property as specified in this paragraph 26
as the same become due and payable, including but not limited to rents then
due and unpaid, and all such rents shall immediately upon delivery of such
notice be held by Borrower as trustee for the benefit of Lender only;
provided, however, that the written notice by Lender to Borrower of the
breach by Borrower shall contain a statement that Lender exercises its rights
to such rents. Borrower agrees that commencing upon delivery of such written
notice of Borrower's breach by Lender to Borrower, each tenant of the
Property shall make such rents payable to and pay such rents to Lender or
Lender's agents on Lender's written demand to each tenant therefor, delivered
to each tenant personally, by mail or by delivering such demand to each
rental unit, without any liability on the part of said tenant to inquire
further as to the existence of a default by Borrower.
Borrower hereby covenants that Borrower has not executed any prior
assignment of said rents, that Borrower has not performed, and will not
perform, any acts or has not executed, and will not execute, any instrument
which would prevent Lender from exercising its rights under this paragraph
26, and that at the time of execution of this Instrument there has been no
anticipation or prepayment of any of the rents of the Property for more than
two months prior to the due dates of such rents. Borrower covenants that
Borrower will not hereafter collect or accept payment of any rents of the
Property more than two months prior to the due dates of such rents. Borrower
further covenants that Borrower will execute and deliver to Lender such
further assignments of rents and revenues of the Property as Lender may from
time to time request.
Upon Borrower's breach of any covenant or agreement of Borrower in this
Instrument. Lender may in person, by agent or by a court-appointed receiver,
regardless of the adequacy of Lender's security, enter upon and take and
maintain full control of the Property in order to perform all acts necessary
and appropriate for the operation and maintenance thereof including, but not
limited to, the execution, cancellation or modification of leases, the
collection of all rents and revenues of the Property, the making of repairs
to the Property and the execution or termination of contracts providing for
the management or maintenance of the Property, all on such terms as are
deemed best to protect the security of this Instrument. In the event Lender
elects to seek the appointment of a receiver for the Property upon Borrower's
breach of any covenant or agreement of Borrower in this Instrument, Borrower
hereby expressly consents to the appointment of such receiver. Lender or the
receiver shall be entitled to receive a reasonable fee for so managing the
Property.
All rents and revenues collected subsequent to delivery of written
notice by Lender to Borrower of the breach by Borrower of any covenant or
agreement of Borrower in this Instrument shall be applied first to the costs,
if any, of taking control of and managing the Property and collecting the
rents, including, but not limited to, attorney's fees, receiver's fees,
premiums on receiver's bonds, costs of repairs to the Property, premiums on
insurance policies, taxes, assessments and other charges on the Property, and
the costs of discharging any obligation or liability of Borrower as lessor or
landlord of the Property and then to the sums secured by this Instrument.
Lender or the receiver shall have access to the books and records used in the
operation and maintenance of the Property and shall be liable to account only
for those rents actually received. Lender shall not be liable to Borrower,
anyone claiming under or through Borrower or anyone having an interest in the
Property by reason of anything done or left undone by Lender under this
paragraph 26.
If the rents of the Property are not suffcient to meet the costs, if
any, of taking control of and managing the Property and collecting the rents,
any funds expended by Lender for such purposes shall become indebtedness of
Borrower to Lender secured by this Instrument pursuant to paragraph 8 hereof.
Unless Lender and Borrower agree in writing to other terms of paymemt, such
amounts shall be payable upon notice from Lender to Borrower requesting
payment thereof and shall bear interest from the date of disbursement at the
rate stated in the Note unless payment of interest at such rate would be
contrary to applicable law, in which event such amounts shall bear interest
at the highest rate which may be collected from Borrower under applicable law.
Any entering upon and taking and maintaining of control of the Property
by Lender or the receiver and any application of rents as provided herein
shall not cure or waive any default hereunder or invalidate any other right
or remedy of Lender under applicable law or provided herein. This assignment
of rents of the Property shall terminate at such time as this instrument
ceases to secure indebtedness held by Lender.
UNIFORM COVENANTS - Multifamily - 1/77 - FNMA/FHLMC UNIFORM INSTRUMENT
FORM 4044 (PAGE 6 OF 8 PAGES)
NON-UNIFORM COVENANTS. BORROWER AND LENDER FURTHER COVENANT AND AGREE AS
FOLLOWS:
SEE SUPPLEMENTAL RIDER TO MULTIFAMILY INSTRUMENT
28. RELEASE. Upon payment of all sums secured by this Instrument, Lender
shall release this Instrument. Borrower shall pay Lender's reasonable costs
incurred in releasing this Instrument.
29. SUBSTITUTE TRUSTEE. Lender at Lender's option, with or without cause, may
from time to time remove Trustee and appoint a successor trustee to any
Trustee appointed hereunder by an instrument recorded in the county in which
this Instrument is recorded. Without conveyance of the Property, the
successor trustee shall succeed to all the title, power and duties conferred
upon the Trustee herein and by applicable law.
30. SUBROGATION. Any of the proceeds of the Note utilized to take up
outstanding liens against all or any part of the Property have been advanced
by Lender at Borrower's request and upon Borrower's representation that such
amounts are due and are secured by valid liens against the Property. Lender
shall he subrogated to any and all rights, superior titles, liens and
equities owned or claimed by any owner or holder of any outstanding liens and
debts, however remote, regardless of whether said liens or debts are acquired
by Lender, by assignment or are released by the holder thereof upon payment.
31. PARTIAL INVALIDITY. In the event any portion of the sums intended to be
secured by this Instrument cannot be lawfully secured hereby, payments in
reduction of such sums shall be applied first to those portions not secured
hereby.
*DELETE BRACKETED CLAUSES AS APPROPRIATE.
IN WITNESS WHEREOF Borrower has executed this Instrument or has caused
the same to be executed by its representatives thereunto duly authorized.
XXXXXXX LIMITED PARTNERSHIP, an
Illinois limited partnership
By: AIMCO LT, L.P., a Delaware limited
partnership, its general partner
By: AIMCO HOLDINGS, L.P., a Delaware
limited partnership, its general
partner
By: AIMCO HOLDINGS QRS, INC., a
Delaware corporation, its general
partner
By: /s/ X. Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: VP
----------------------------
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
FORM 4044 (PAGE 7 OF 8 PAGES)
State of ILLINOIS
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County of XXXX
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On the 26th day of November, 1996, before me, the subscriber, a
Notary Public in and for the State and County aforesaid, personally appeared
Xxxxx Xxxxxx who acknowledged himself to be the Vice President of AIMCO
HOLDINGS QRS, INC., a corporation which is the sole general partner of AIMCO
HOLDINGS, L.P., a limited partnership which is the sole general partner of
AIMCO LT, L.P., a limited partnership which is a general partner of XXXXXXX
LIMITED PARTNERSHIP, a limited partnership, and that he, being authorized to
do so, executed the foregoing instrument for the purposes therein contained
by signing the name of such corporate general partner as such officer.
WITNESS my hand and seal the day and year aforesaid.
/s/ Xxxxx Xxxx
---------------------
Notary Public
My Commission Expires:
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(Page 8 of 8)
