RIDER TO MULTIFAMILY INSTRUMENT
THIS RIDER TO MULTIFAMILY INSTRUMENT (the "Rider") is made as of the 1st
day of August 1996, and is incorporated into and shall be deemed to amend and
supplement the Multifamily Mortgage as of the same date (the "Instrument"),
given by the undersigned OTC APARTMENTS LIMITED PARTNERSHIP, a Florida
limited partnership (the "Borrower"), to secure Borrower's Multifamily Note
as of the same date (the "Note") with Addendum to Multifamily Note as of the
same date (the "Addendum") to THE BANK OF NEW YORK, a New York banking
corporation, Not in its individual or corporate capacity but solely as
Trustee under an Amended and Restated Trust Indenture dated as of August 1,
1996 with Escambia County Housing Finance Authority.
c/o GMAC Commercial Mortgage Corporation, 000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000
[INSERT ADDRESS OF LENDER] and its successors, assigns and transfers (the
"Lender"), covering the property described in the Instrument and defined
therein as the "Property," located at:
0000 Xxxx Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx
--------------------------------------------------------------------------------
[Property Address]
The Property is located entirely within the State of Florida
--------------------------------------------------------------------------------
[INSERT NAME OF STATE IN WHICH THE PROPERTY IS LOCATED] (the "Property
Jurisdiction").
The term "Loan Documents" when used in this Rider shall mean,
collectively, the following documents: (i) the Instrument, as modified by
this Rider, the Special Rider to Multifamily Instrument as of even date
herewith (the "Special Rider") and any other riders to the Instrument given
by Borrower to Lender and covering the Property; (ii) the Note, as modified
by the Addendum and any other addendum to the Note; and (iii) all other
documents or agreements, including any Collateral Agreements (as defined
below) or O&M Agreements (as defined below), arising under, related to, or
made in connection with, the loan evidenced by the Note, as such Loan
Documents may be amended from time to time. Any conflict between the
provisions of the Instrument and the Rider shall be resolved in favor of the
Rider.
The covenants and agreements of this Rider, and the covenants and
agreements of any other riders (including, without limitation, the Special
Rider) to the Instrument given by Borrower to Lender and covering the
Property, shall be incorporated into and shall amend and supplement the
covenants and agreements of the Instrument as if this Rider and the other
riders were a part of the Instrument and all references to the Instrument in
the Loan Documents shall mean the Instrument as so amended and supplemented.
ADDITIONAL COVENANTS. In addition to the covenants and agreements made in
the Instrument, Borrower and Lender further covenant and agree as follows:
A. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES
Uniform Covenant 2 of the Instrument ("Funds for Taxes, Insurance and Other
Charges") is amended to change the title to "Funds for Taxes, Insurance and
Other Charges; Collateral Agreements." Existing Uniform Covenant 2 is amended to
become Xxxxxxx Xxxxxxxx 0X. The following new Uniform Covenant 2B is added at
the end of Uniform Covenant 2A:
2B REPLACEMENT RESERVE AGREEMENT, COMPLETION/REPAIR AGREEMENT, ACHIEVEMENT
AGREEMENT AND OTHER COLLATERAL AGREEMENTS
(a) REPLACEMENT RESERVE AGREEMENT
Borrower shall deposit with Lender the amounts required by the
Replacement Reserve and Security Agreement (the "Replacement Reserve
Agreement") between Borrower and Lender (if any), dated as of the date of the
Note, at the times required by the Replacement Reserve Agreement, and shall
perform all other obligations as and when required pursuant to the
Replacement Reserve Agreement.
(b) COMPLETION/REPAIR AGREEMENT
Borrower shall deposit with Lender the amount required by the
Completion/Repair and Security Agreement (the "Completion/Repair Agreement")
between Borrower and Lender (if any), dated as of the date of the Note, at
the time required by the Completion/Repair Agreement, and shall perform all
other obligations as and when required pursuant to the Completion/Repair
Agreement.
(d) COLLATERAL AGREEMENTS
As used herein, the term "Collateral Agreement" shall mean any of the
Replacement Reserve Agreement, the Completion/Repair Agreement, the Achievement
Agreement and any similar agreement which has been entered into between Borrower
and Lender in connection with the loan evidenced by the Note.
B. APPLICATION OF PAYMENTS
Uniform Covenant 3 of the Instrument ("Application of Payments") is amended
to add the following sentence at the end thereof:
Notwithstanding the preceding sentence, (i) Lender shall be permitted to
apply any partial payment received from Borrower in any manner determined by
Lender and in any order of priority of application as determined by Lender,
in Lender's sole discretion, and (ii) upon any breach of any covenant or
agreement of Borrower in the Instrument, the Note or any other Loan Document,
Lender shall be permitted to apply any funds held pursuant to
RIDER TO MULTIFAMILY INSTRUMENT WITH SEPARATE EXCEPTIONS TO NON-RECOURSE
GUARANTY
- Xxxxxx Mae Uniform Instrument Form 4058 6/93 (PAGE 1 OF 8 PAGES)
any Collateral Agreement in any manner which is permitted pursuant to such
Collateral Agreement and in any order of priority of application as determined
by Lender, in Lender's sole discretion.
C. HAZARD INSURANCE; RESTORATION OF PROPERTY
Uniform Covenant 5 of the Instrument ("Hazard Insurance") is amended to add
the following sentence at the end thereof:
Lender shall not exercise Lender's option to apply insurance proceeds to
the payment of the sums secured by the Instrument if all of the following
conditions are met: (i) Borrower is not in breach or default of any provision of
the Instrument, the Note or any other Loan Document; (ii) Lender determines that
there will be sufficient funds to restore and repair the Property to a condition
approved by Lender; (iii) Lender determines that the rental income of the
Property, after restoration and repair of the Property to a condition approved
by Lender, will be sufficient to meet all operating costs and other expenses,
payments for reserves and loan repayment obligations relating to the Property;
(iv) Lender determines that restoration and repair of the Property to a
condition approved by Lender will be completed prior to the earlier of either
(1) the maturity date of the Note or (2) within one year of the date of the loss
or casualty to the Property; and (v) Lender determines that upon restoration and
repair of the Property, there will not have been a material diminution in the
value of the Property since the date immediately preceding the casualty.
D. ENVIRONMENTAL HAZARDS PROVISION
In addition to Borrower's covenants and agreements under Uniform Covenant 6
of the Instrument ("Preservation and Maintenance of Property; Leaseholds"),
Borrower further covenants and agrees that Borrower shall not:
(a) cause or permit the presence, use, generation, manufacture,
production, processing, installation, release, discharge, storage
(including aboveground and underground storage tanks for
petroleum or petroleum products), treatment, handling, or
disposal of any Hazardous Materials (as defined below) (excluding
the safe and lawful use and storage of quantities of Hazardous
Materials customarily used in the operation and maintenance of
comparable multifamily properties or for normal household
purposes) on or under the Property, or in any way affecting the
Property or its value, or which may form the basis for any
present or future demand, claim or liability relating to
contamination, exposure, cleanup or other remediation of the
Property or;
(b) cause or permit the transportation to, from or across the
Property of any Hazardous Material (excluding the safe and lawful
use and storage of quantities of Hazardous Materials customarily
used in the operation and maintenance of comparable multifamily
properties or for normal household purposes); or
(c) permit, cause or exacerbate any occurrence or condition on the
Property that is or may be in violation of Hazardous Materials Law
(as defined below).
(The matters described in (a), (b) and (c) above are referred to collectively
below as "Prohibited Activities or Conditions.")
Except with respect to any matters which have been disclosed in writing by
Borrower to Lender prior to the date of the Instrument, or matters which have
been disclosed in an environmental hazard assessment report of the Property
received by Lender prior to the date of the Instrument, Borrower represents and
warrants that it has not at any time caused or permitted any Prohibited
Activities or Conditions and to the best of its knowledge, no Prohibited
Activities or Conditions exist or have existed on or under the Property.
Borrower shall take all appropriate steps (including but not limited to
appropriate lease provisions) to prevent its employees, agents, and contractors,
and all tenants and other occupants on the Property, from causing, permitting or
exacerbating any Prohibited Activities or Conditions. Borrower shall not lease
or allow the sublease of all or any portion of the Property for non-residential
use to any tenant or subtenant that, in the ordinary course of its business,
would cause, permit or exacerbate any Prohibited Activities or Conditions, and
all non-residential leases and subleases shall provide that tenants and sub-
tenants shall not cause, permit or exacerbate any Prohibited Activities or
Conditions.
If any Prohibited Activities or Conditions exist on the Property or if
Lender shall otherwise require Borrower to do so in writing in accordance
with reasonable commercial practices Borrower shall comply in a timely manner
with, and cause all employees, agents, and contractors of Borrower and any
other persons present on the Property to so comply with, (1) any program of
operations and maintenance ("O&M Program") relating to the Property that is
acceptable to Lender with respect to one or more Hazardous Materials (which
O&M Program may be set forth in an agreement of Borrower (an "O&M
Agreement")) and all other obligations set forth in any O&M Agreement or any
other remedial action requested by Lender, and (2) all Hazardous Materials
Laws. Any O&M Program shall be performed by qualified personnel. All costs
and expenses of the O&M Program shall be paid by Borrower, including without
limitation Lender's fees and costs incurred in connection with the monitoring
and review of the O&M Program and Borrower's performance thereunder. If
Borrower fails to timely commence or diligently continue and complete the O&M
Program and comply with any O&M Agreement, then Lender may, at Lender's option,
declare all of the sums secured by the Instrument to be immediately due and
payable, and Lender may invoke any remedies permitted by paragraph 27 of the
Instrument. Without limiting the foregoing, Borrower shall take prompt remedial
action in the event of the discovery of any Prohibited Activities or Conditions
and obtain Lender's prior written approval of such remedial action.
Borrower represents that Borrower has not received, and has no knowledge of
the issuance of, any claim, citation or notice of any pending or threatened
suits, proceedings, orders, or governmental inquiries or opinions involving the
Property that allege the violation of any Hazardous Materials Law ("Governmental
Actions").
Borrower shall promptly notify Lender in writing of: (i) the occurrence of
any Prohibited Activity or Condition on the Property; (ii) Borrower's actual
knowledge of the presence on or under any adjoining property of any Hazardous
Materials which can reasonably be expected to have a material adverse impact on
the Property or the value of the Property, discovery of any occurrence or
condition on the Property or any adjoining real property that could cause any
restrictions on the ownership, occupancy, transferability or use of the Property
under Hazardous Materials
Form 4058 6/93 (PAGE 2 OF 8 PAGES)
Law. Borrower shall cooperate with any governmental inquiry, and shall comply
with any governmental or judicial order which arises from any alleged Prohibited
Activities or Conditions; (iii) any Governmental Action: and (iv) any claim made
or threatened by any third party against Borrower, Lender, or the Property
relating to loss or injury resulting from any Hazardous Materials. Any such
notice by Borrower shall not relieve Borrower of, or result in a waiver of any
obligation of Borrower under this paragraph D.
Borrower shall pay promptly the costs of any environmental audits, studies
or investigations (including but not limited to advice of legal counsel) and the
removal of any Hazardous Materials from the Property required by Lender as a
condition of its consent to any sale or transfer under paragraph 19 of the
Instrument of all or any part of the Property or any transfer occurring upon a
foreclosure or a deed in lieu of foreclosure or any interest therein, or
required by Lender following a reasonable determination by Lender that there may
be Prohibited Activities or Conditions on or under the Property. Borrower
authorizes Lender and its employees, agents and contractors to enter onto the
Property for the purpose of conducting such environmental audits, studies and
investigations. Any such costs and expenses incurred by Lender (including but
not limited to fees and expenses of attorneys and consultants, whether incurred
in connection with any judicial or administrative process or otherwise) which
Borrower fails to pay promptly shall become immediately due and payable and
shall become additional indebtedness secured by the Instrument pursuant to
Uniform Covenant 8 of the Instrument.
Borrower shall hold harmless, defend and indemnify Lender and its officers,
directors, trustees, employees, and agents from and against all proceedings
(including but not limited to Government Actions), claims, damages, penalties,
costs and expenses (including without limitation fees and expenses of attorneys
and expert witnesses, investigatory fees, and cleanup and remediation expenses,
whether or not incurred within the context of the judicial process), arising
directly or indirectly from (i) any breach of any representation, warranty, or
obligation of Borrower contained in this paragraph D or (ii) the presence or
alleged presence of Hazardous Materials on or under the Property.
The term "Hazardous Materials," for purposes of this paragraph D, includes
petroleum and petroleum products, flammable explosives, radioactive materials
(excluding radioactive materials in smoke detectors), polychlorinated biphenyls,
lead, asbestos in any form that is or could become friable, hazardous waste,
toxic or hazardous substances or other related materials whether in the form of
a chemical, element, compound, solution, mixture or otherwise including, but not
limited to, those materials defined as "hazardous substances," "extremely
hazardous substances," "hazardous chemicals," "hazardous materials," "toxic
substances," "solid waste," "toxic chemicals," "air pollutants," "toxic
pollutants," "hazardous wastes," "extremely hazardous waste," or "restricted
hazardous waste" by Hazardous Materials Law or regulated by Hazardous Materials
Law in any manner whatsoever.
The term "Hazardous Materials Law," for the purposes of this paragraph D,
means all federal, state, and local laws, ordinances and regulations and
standards, rules, policies and other binding governmental requirements and any
court judgments applicable to Borrower or to the Property relating to industrial
hygiene or to environmental or unsafe conditions or to human health including,
but not limited to, those relating to the generation, manufacture, storage,
handling, transportation, disposal, release, emission or discharge of Hazardous
Materials, those in connection with the construction, fuel supply, power
generation and transmission, waste disposal or any other operations or processes
relating to the Property, and those relating to the atmosphere, soil, surface
and ground water, wetlands, stream sediments and vegetation on, under, in or
about the Property.
The representations, warranties, covenants, agreements, indemnities and
undertakings of Borrower contained in this paragraph D shall be in addition to
any and all other obligations and liabilities that Borrower may have to Lender
under applicable law.
The representations, warranties, covenants, agreements, indemnities and
undertakings of Borrower contained in this paragraph D shall continue and
survive notwithstanding the satisfaction, discharge, release, assignment,
termination, subordination or cancellation of the Instrument or the payment in
full of the principal of and interest on the Note and all other sums payable
under the Loan Documents or the foreclosure of the Instrument or the tender or
delivery of a deed in lieu of foreclosure or the release of any portion of the
Property from the lien of the Instrument, except with respect to any Prohibited
Activities or Conditions or violation of any of the Hazardous Materials Laws
which first commences and occurs after the satisfaction, discharge, release,
assignment, termination or cancellation of the Instrument following the payment
in full of the principal of and interest on the Note and all other sums payable
under the Loan Documents or which first commences or occurs after the actual
dispossession from the entire Property of the Borrower and all entities which
control, are controlled by, or are under common control with the Borrower (each
of the foregoing persons or entities is hereinafter referred to as a
"Responsible Party") following foreclosure of the Instrument or acquisition of
the Property by a deed in lieu of foreclosure. Nothing in the foregoing sentence
shall relieve the Borrower from any liability with respect to any Prohibited
Activities or Conditions or violation of Hazardous Materials Laws where such
Prohibited Activities or Conditions or violation of Hazardous Materials Laws
commences or occurs, or is present as a result of, any act or omission by any
Responsible Party or by any person or entity acting on behalf of a Responsible
Party.
Form 4058 6/93 (PAGE 3 OF 8 PAGES)
F. TRANSFERS OF THE PROPERTY OR SIGNIFICANT INTERESTS IN BORROWER; TRANSFER
FEES
SEE SPECIAL RIDER ATTACHED HERETO.
Form 4058 6/93 (PAGE 4 OF 8 PAGES)
G. NOTICE
Form 4058 6/93 (PAGE 5 OF 8 PAGES)
H. GOVERNING LAW
SEE SPECIAL RIDER ATTACHED HERETO.
I. ACCELERATION; REMEDIES
Covenant 27 of the Instrument ("Acceleration; Remedies") is amended to add
the following at the end of the first paragraph:
Upon the breach of any covenant or agreement by Borrower in the Instrument,
(including, but not limited to, the covenants to pay when due sums secured by
the Instrument) or any other Loan Document, Lender, at Lender's option may, in
addition to any remedies specified in this covenant, invoke any other remedies
provided in any Collateral Agreement.
If Borrower is in default under any promissory note (other than the Note)
evidencing a loan (the "Subordinate Loan") secured by a security instrument
(other than the Instrument) covering all or any portion of the Property (the
"Subordinate Instrument") or under any Subordinate Instrument or other loan
document executed in connection with the Subordinate Loan, (and whether or not
the Borrower has obtained the prior approval of Lender to the placement of such
Subordinate Instrument on the Property) which default remains uncured after any
applicable cure period, Borrower also then will be in default under the Note and
the Instrument. In that event, the entire unpaid principal balance of the Note,
accrued interest and any other sums due Lender secured by the Instrument then
will become due and payable, at Lender's option. If Lender exercises this option
to accelerate, Lender will do so in accordance with the provisions of the Note
and the Instrument, and the Lender may invoke any and all remedies permitted by
applicable law, the Note, the Instrument, or any of the other Loan Documents.
J. SINGLE ASSET BORROWER
SEE SPECIAL RIDER ATTACHED HERETO.
K. NON-RECOURSE LIABILITY
Form 4058 6/93 (PAGE 6 OF 8 PAGES)
The liability of Borrower and any general partner of Borrower (if Borrower is a
partnership) shall be limited to the same extent as provided in Section 3.11
of the Reimbursement Agreement.
M. Waiver of Jury Trial
Borrower (i) covenants and agrees not to elect a trial by jury with
respect to any issue arising under any of the Loan Documents triable by a
jury and (ii) waives any right to trial by jury to the extent that any such
right shall now or hereafter exist. This waiver of right to trial by jury is
separately given, knowingly and voluntarily with the benefit of competent
legal counsel by the Borrower and this waiver is intended to encompass
individually each instance and each issue as to which the right to a jury
trial would otherwise accrue. Further, Borrower hereby certifies that no
representative or agent of the Lender (including, but not limited to, the
Lender's counsel) has represented, expressly or otherwise, to Borrower
that Lender will not seek to enforce the provisions of this paragraph M.
Form 4058 6/93 (PAGE 7 OF 8 PAGES)
BY SIGNING BELOW, Borrower accepts and agrees to the covenants and
agreements contained in this Rider.
Signed, Sealed and Delivered OTC APARTMENTS LIMITED PARTNERSHIP, a Florida
in the Presence of: limited partnership
/s/ illegible
---------------------------- BY: AIMCO/OTC QRS, INC., a Delaware corporation,
its sole General Partner
/s/ Xxxxx X. Xxxxxx By: /s/ X. Xxxxxx (SEAL)
---------------------------- --------------------------
Xxxxx Xxxxxx
Vice President
Form 4058 6/93 (page 8 of 8 pages)
