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Exhibit
10.14
MULTIFAMILY MORTGAGE,
ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
(PENNSYLVANIA – REVISION DATE 05-11-2004)
FHLMC Loan No. 504131362
Village of Pennbrook
MULTIFAMILY MORTGAGE,
ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
(PENNSYLVANIA – REVISION DATE 05-11-2004)
THIS MULTIFAMILY MORTGAGE, ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT (the “ Instrument ”)
is made to be effective as of the 30 th day of May,
2008, between NATIONAL PROPERTY INVESTORS 4 , a limited
partnership organized and existing under the laws of California,
whose address is c/o AIMCO, Stanford Place 3, 4582 South Ulster
St. Parkway, Suite 1100, Denver, Colorado 80237, as mortgagor
(“ Borrower ”), and CAPMARK BANK , an
industrial bank organized and existing under the laws of Utah,
whose address is 6955 Union Park Center, Suite 330, Midvale,
Utah 84047, Attn: President, as mortgagee (“
Lender ”). Borrower's organizational
identification number, if applicable, is 198421600037.
Borrower is indebted to Lender in the principal
amount of $10,000,000.00, as evidenced by Borrower’s
Multifamily Note payable to Lender, dated as of the date of this
Instrument, and maturing on September 1, 2021 (the " Maturity
Date ").
TO SECURE TO LENDER the repayment of the
Indebtedness, and all renewals, extensions and modifications of
the Indebtedness, and the performance of the covenants and
agreements of Borrower contained in the Loan Documents, Borrower
mortgages, warrants, grants, conveys and assigns to Lender the
Mortgaged Property, including the Land located in the County of
Bucks, Commonwealth of Pennsylvania and described in Exhibit A
attached to this Instrument.
Borrower represents and warrants that Borrower
is lawfully seized of the Mortgaged Property and has the right,
power and authority to mortgage, grant, convey and assign the
Mortgaged Property, and that the Mortgaged Property is
unencumbered, except as shown on the schedule of exceptions to
coverage in the title policy issued to and accepted by Lender
contemporaneously with the execution and recordation of this
Instrument and insuring Lender's interest in the Mortgaged
Property (the " Schedule of Title Exceptions ").
Borrower covenants that Borrower will warrant and defend
generally the title to the Mortgaged Property against all claims
and demands, subject to any easements and restrictions listed in
the Schedule of Title Exceptions.
UNIFORM COVENANTS
REVISION DATE 02-15-2008
Covenants. In consideration of the
mutual promises set forth in this Instrument, Borrower and
Lender covenant and agree as follows:
1.
DEFINITIONS. The following
terms, when used in this Instrument (including when used in the
above recitals), shall have the following meanings:
(a)
"
Attorneys' Fees and Costs " means (i) fees and
out-of-pocket costs of Lender's and Loan Servicer's attorneys,
as applicable, including costs of Lender's and Loan Servicer's
in-house counsel, support staff costs, costs of preparing for
litigation, computerized research, telephone and facsimile
transmission expenses, mileage, deposition costs, postage,
duplicating, process service, videotaping and similar costs and
expenses; (ii) costs and fees of expert witnesses,
including appraisers; and (iii) investigatory
fees.
(b)
"
Borrower " means all persons or entities identified as
"Borrower" in the first paragraph of this Instrument, together
with their successors and assigns.
(c)
"
Business Day " means any day other than a Saturday, a
Sunday or any other day on which Lender or the national banking
associations are not open for business.
(d)
"
Collateral Agreement " means any separate agreement
between Borrower and Lender for the purpose of establishing
replacement reserves for the Mortgaged Property, establishing a
fund to assure the completion of repairs or improvements
specified in that agreement, or assuring reduction of the
outstanding principal balance of the Indebtedness if the
occupancy of or income from the Mortgaged Property does not
increase to a level specified in that agreement, or any other
agreement or agreements between Borrower and Lender which
provide for the establishment of any other fund, reserve or
account.
(e)
"
Controlling Entity " means an entity which owns, directly
or indirectly through one or more intermediaries, (i) a
general partnership interest or a Controlling Interest of the
limited partnership interests in Borrower (if Borrower is a
partnership or joint venture), (ii) a manager's interest in
Borrower or a Controlling Interest of the ownership or
membership interests in Borrower (if Borrower is a limited
liability company), (iii) a Controlling Interest of any
class of voting stock of Borrower (if Borrower is a
corporation), (iv) a trustee's interest or a Controlling
Interest of the beneficial interests in Borrower (if Borrower is
a trust), or (v) a managing partner's interest or a Controlling
Interest of the partnership interests in Borrower (if Borrower
is a limited liability partnership).
(f)
"
Controlling Interest " means (i) 51 percent or
more of the ownership interests in an entity, or (ii) a
percentage ownership interest in an entity of less than
51 percent, if the owner(s) of that interest actually
direct(s) the business and affairs of the entity without
the requirement of consent of any other party. The
Controlling Interest shall be deemed to be 51 percent
unless otherwise stated in Exhibit B.
(g)
"
Environmental Permit " means any permit, license, or
other authorization issued under any Hazardous Materials Law
with respect to any activities or businesses conducted on or in
relation to the Mortgaged Property.
(h)
" Event
of Default " means the occurrence of any event listed in
Section 22.
(i)
"
Fixtures " means all property owned by Borrower which is
so attached to the Land or the Improvements as to constitute a
fixture under applicable law, including: machinery, equipment,
engines, boilers, incinerators, installed building materials;
systems and equipment for the purpose of supplying or
distributing heating, cooling, electricity, gas, water, air, or
light; antennas, cable, wiring and conduits used in connection
with radio, television, security, fire prevention, or fire
detection or otherwise used to carry electronic signals;
telephone systems and equipment; elevators and related machinery
and equipment; fire detection, prevention and extinguishing
systems and apparatus; security and access control systems and
apparatus; plumbing systems; water heaters, ranges, stoves,
microwave ovens, refrigerators, dishwashers, garbage disposers,
washers, dryers and other appliances; light fixtures, awnings,
storm windows and storm doors; pictures, screens, blinds,
shades, curtains and curtain rods; mirrors; cabinets, paneling,
rugs and floor and wall coverings; fences, trees and plants;
swimming pools; and exercise equipment.
(j)
"
Governmental Authority " means any board, commission,
department or body of any municipal, county, state or federal
governmental unit, or any subdivision of any of them, that has
or acquires jurisdiction over the Mortgaged Property or the use,
operation or improvement of the Mortgaged Property or over the
Borrower.
(k)
" Hazard
Insurance " is defined in Section 19.
(l)
"
Hazardous Materials " means petroleum and petroleum
products and compounds containing them, including gasoline,
diesel fuel and oil; explosives; flammable materials;
radioactive materials; polychlorinated biphenyls
("PCBs") and compounds containing them; lead and lead-based
paint; asbestos or asbestos-containing materials in any form
that is or could become friable; underground or above-ground
storage tanks, whether empty or containing any substance; any
substance the presence of which on the Mortgaged Property is
prohibited by any federal, state or local authority; any
substance that requires special handling and any other material
or substance now or in the future that (i) is defined as a
"hazardous substance," "hazardous material," "hazardous waste,"
"toxic substance," "toxic pollutant," "contaminant," or
"pollutant" by or within the meaning of any Hazardous Materials
Law, or (ii) is regulated in any way by or within the
meaning of any Hazardous Materials Law.
(m)
"
Hazardous Materials Laws " means all federal, state, and
local laws, ordinances and regulations and standards, rules,
policies and other governmental requirements, administrative
rulings and court judgments and decrees in effect now or in the
future and including all amendments, that relate to Hazardous
Materials or the protection of human health or the environment
and apply to Borrower or to the Mortgaged Property. Hazardous
Materials Laws include, but are not limited to, the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601, et seq. , the Resource
Conservation and Recovery Act of 1976, 42 U.S.C.
Section 6901, et seq. , the Toxic Substance Control
Act, 15 U.S.C. Section 2601, et seq. , the Clean
Water Act, 33 U.S.C. Section 1251, et seq. , and the
Hazardous Materials Transportation Act, 49 U.S.C.
Section 5101 et seq. , and their state analogs.
(n)
"
Impositions " and " Imposition Deposits " are
defined in Section 7(a).
(o)
"
Improvements " means the buildings, structures,
improvements, and alterations now constructed or at any time in
the future constructed or placed upon the Land, including any
future replacements and additions.
(p)
"
Indebtedness " means the principal of, interest at the
fixed or variable rate set forth in the Note on, and all other
amounts due at any time under, the Note, this Instrument or any
other Loan Document, including prepayment premiums, late
charges, default interest, and advances as provided in
Section 12 to protect the security of this Instrument.
(q)
" Initial
Owners " means, with respect to Borrower or any other
entity, the persons or entities that (i) on the date of the
Note, or (ii) on the date of a Transfer to which Lender has
consented, own in the aggregate 100 percent of the
ownership interests in Borrower or that entity.
(r)
"
Land " means the land described in Exhibit A.
(s)
"
Leases " means all present and future leases, subleases,
licenses, concessions or grants or other possessory interests
now or hereafter in force, whether oral or written, covering or
affecting the Mortgaged Property, or any portion of the
Mortgaged Property (including proprietary leases or occupancy
agreements if Borrower is a cooperative housing corporation),
and all modifications, extensions or renewals.
(t)
"
Lender " means the entity identified as "Lender" in the
first paragraph of this Instrument, or any subsequent holder of
the Note.
(u)
" Loan
Documents " means the Note, this Instrument, all guaranties,
all indemnity agreements, all Collateral Agreements, O&M
Programs, the MMP and any other documents now or in the future
executed by Borrower, any guarantor or any other person in
connection with the loan evidenced by the Note, as such
documents may be amended from time to time.
(v)
" Loan
Servicer " means the entity that from time to time is
designated by Lender to collect payments and deposits and
receive Notices under the Note, this Instrument and any other
Loan Document, and otherwise to service the loan evidenced by
the Note for the benefit of Lender. Unless Borrower
receives Notice to the contrary, the Loan Servicer is the entity
identified as "Lender" in the first paragraph of this
Instrument.
(w)
" MMP
" means a moisture management plan to control water intrusion
and prevent the development of Mold or moisture at the Mortgaged
Property throughout the term of this Instrument. At a
minimum, the MMP must contain a provision for (i) staff
training, (ii) information to be provided to tenants, (iii)
documentation of the plan, (iv) the appropriate protocol for
incident response and remediation and (v) routine, scheduled
inspections of common space and unit interiors.
(x)
"
Mold " means mold, fungus, microbial contamination or
pathogenic organisms.
(y)
"
Mortgaged Property " means all of Borrower's present and
future right, title and interest in and to all of the
following:
(i)
the
Land;
(ii)
the
Improvements;
(iii)
the
Fixtures;
(iv)
the
Personalty;
(v)
all current and
future rights, including air rights, development rights, zoning
rights and other similar rights or interests, easements,
tenements, rights-of-way, strips and gores of land, streets,
alleys, roads, sewer rights, waters, watercourses, and
appurtenances related to or benefiting the Land or the
Improvements, or both, and all rights-of-way, streets, alleys
and roads which may have been or may in the future be
vacated;
(vi)
all proceeds paid
or to be paid by any insurer of the Land, the Improvements, the
Fixtures, the Personalty or any other part of the Mortgaged
Property, whether or not Borrower obtained the insurance
pursuant to Lender's requirement;
(vii)
all awards,
payments and other compensation made or to be made by any
municipal, state or federal authority with respect to the Land,
the Improvements, the Fixtures, the Personalty or any other part
of the Mortgaged Property, including any awards or settlements
resulting from condemnation proceedings or the total or partial
taking of the Land, the Improvements, the Fixtures, the
Personalty or any other part of the Mortgaged Property
under the power of eminent domain or otherwise and including any
conveyance in lieu thereof;
(viii)
all contracts,
options and other agreements for the sale of the Land, the
Improvements, the Fixtures, the Personalty or any other part of
the Mortgaged Property entered into by Borrower now or in the
future, including cash or securities deposited to secure
performance by parties of their obligations;
(ix)
all proceeds from
the conversion, voluntary or involuntary, of any of the above
into cash or liquidated claims, and the right to collect such
proceeds;
(x)
all Rents and
Leases;
(xi)
all earnings,
royalties, accounts receivable, issues and profits from the
Land, the Improvements or any other part of the Mortgaged
Property, and all undisbursed proceeds of the loan secured by
this Instrument;
(xii)
all Imposition
Deposits;
(xiii)
all refunds or
rebates of Impositions by any municipal, state or federal
authority or insurance company (other than refunds applicable to
periods before the real property tax year in which this
Instrument is dated);
(xiv)
all tenant security
deposits which have not been forfeited by any tenant under any
Lease and any bond or other security in lieu of such deposits;
and
(xv)
all names under or
by which any of the above Mortgaged Property may be operated or
known, and all trademarks, trade names, and goodwill relating to
any of the Mortgaged Property.
(z)
"
Note " means the Multifamily Note described on page 1 of
this Instrument, including all schedules, riders, allonges and
addenda, as such Multifamily Note may be amended from time to
time.
(aa)
" O&M
Program " is defined in Section 18(d).
(bb)
"
Personalty " means all:
(i)
accounts (including
deposit accounts) of Borrower related to the Mortgaged
Property;
(ii)
equipment and
inventory owned by Borrower, which are used now or in the future
in connection with the ownership, management or operation of the
Land or Improvements or are located on the Land or Improvements,
including furniture, furnishings, machinery, building materials,
goods, supplies, tools, books, records (whether in written or
electronic form), and computer equipment (hardware and
software);
(iii)
other tangible
personal property owned by Borrower which is used now or in the
future in connection with the ownership, management or
operation of the Land or Improvements or is located on
the Land or in the Improvements, including ranges, stoves,
microwave ovens, refrigerators, dishwashers, garbage disposers,
washers, dryers and other appliances (other than Fixtures);
(iv)
any operating
agreements relating to the Land or the Improvements;
(v)
any surveys, plans
and specifications and contracts for architectural, engineering
and construction services relating to the Land or the
Improvements;
(vi)
all other
intangible property, general intangibles and rights relating to
the operation of, or used in connection with, the Land or the
Improvements, including all governmental permits relating to any
activities on the Land and including subsidy or similar payments
received from any sources, including a governmental authority;
and
(vii)
any rights of
Borrower in or under letters of credit.
(cc)
"
Property Jurisdiction " is defined in
Section 30(a).
(dd)
"
Rents " means all rents (whether from residential or
non-residential space), revenues and other income of the Land or
the Improvements, parking fees, laundry and vending machine
income and fees and charges for food, health care and other
services provided at the Mortgaged Property, whether now due,
past due, or to become due, and deposits forfeited by tenants,
and, if Borrower is a cooperative housing corporation or
association, maintenance fees, charges or assessments payable by
shareholders or residents under proprietary leases or occupancy
agreements, whether now due, past due, or to become due.
(ee)
"
Taxes " means all taxes, assessments, vault rentals and
other charges, if any, whether general, special or otherwise,
including all assessments for schools, public betterments and
general or local improvements, which are levied, assessed or
imposed by any public authority or quasi-public authority, and
which, if not paid, will become a lien on the Land or the
Improvements.
(ff)
"
Transfer " is defined in Section 21.
2.
UNIFORM
COMMERCIAL CODE SECURITY AGREEMENT.
(a)
This Instrument is
also a security agreement under the Uniform Commercial Code for
any of the Mortgaged Property which, under applicable law, may
be subjected to a security interest under the Uniform Commercial
Code, whether such Mortgaged Property is owned now or acquired
in the future, and all products and cash and non-cash proceeds
thereof (collectively, " UCC Collateral "), and
Borrower hereby grants to Lender a security interest in the UCC
Collateral. Borrower hereby authorizes Lender to prepare
and file financing statements, continuation statements and
financing statement amendments in such form as Lender may
require to perfect or continue the perfection of this security
interest and Borrower agrees, if Lender so requests, to execute
and deliver to Lender such financing statements, continuation
statements and amendments. Borrower shall pay all filing
costs and all costs and expenses of any record searches for
financing statements and/or amendments that Lender may require.
Without the prior written consent of Lender, Borrower
shall not create or permit to exist any other lien or security
interest in any of the UCC Collateral.
(b)
Unless Borrower
gives Notice to Lender within 30 days after the occurrence
of any of the following, and executes and delivers to Lender
modifications or supplements of this Instrument (and any
financing statement which may be filed in connection with this
Instrument) as Lender may require, Borrower shall not
(i) change its name, identity, structure or jurisdiction of
organization; (ii) change the location of its place of
business (or chief executive office if more than one place of
business); or (iii) add to or change any location at which
any of the Mortgaged Property is stored, held or
located.
(c)
If an Event of
Default has occurred and is continuing, Lender shall have the
remedies of a secured party under the Uniform Commercial Code,
in addition to all remedies provided by this Instrument or
existing under applicable law. In exercising any remedies,
Lender may exercise its remedies against the UCC Collateral
separately or together, and in any order, without in any way
affecting the availability of Lender's other
remedies.
(d)
This Instrument
constitutes a financing statement with respect to any part of
the Mortgaged Property that is or may become a Fixture, if
permitted by applicable law.
3.
ASSIGNMENT OF
RENTS; APPOINTMENT OF RECEIVER; LENDER IN
POSSESSION.
(a)
As part of the
consideration for the Indebtedness, Borrower absolutely and
unconditionally assigns and transfers to Lender all Rents.
It is the intention of Borrower to establish a present,
absolute and irrevocable transfer and assignment to Lender of
all Rents and to authorize and empower Lender to collect and
receive all Rents without the necessity of further action on the
part of Borrower. Promptly upon request by Lender,
Borrower agrees to execute and deliver such further assignments
as Lender may from time to time require. Borrower and
Lender intend this assignment of Rents to be immediately
effective and to constitute an absolute present assignment and
not an assignment for additional security only. For
purposes of giving effect to this absolute assignment of Rents,
and for no other purpose, Rents shall not be deemed to be a part
of the Mortgaged Property. However, if this present,
absolute and unconditional assignment of Rents is not
enforceable by its terms under the laws of the Property
Jurisdiction, then the Rents shall be included as a part of the
Mortgaged Property and it is the intention of the Borrower that
in this circumstance this Instrument create and perfect a lien
on Rents in favor of Lender, which lien shall be effective as of
the date of this Instrument.
(b)
After the
occurrence of an Event of Default, Borrower authorizes Lender to
collect, sue for and compromise Rents and directs each tenant of
the Mortgaged Property to pay all Rents to, or as directed by,
Lender. However, until the occurrence of an Event of
Default, Lender hereby grants to Borrower a revocable license to
collect and receive all Rents, to hold all Rents in trust for
the benefit of Lender and to apply all Rents to pay the
installments of interest and principal then due and payable
under the Note and the other amounts then due and payable under
the other Loan Documents, including Imposition Deposits, and to
pay the current costs and expenses of managing, operating and
maintaining the Mortgaged Property, including utilities, Taxes
and insurance premiums (to the extent not included in Imposition
Deposits), tenant improvements and other capital expenditures.
So long as no Event of Default has occurred and is
continuing, the Rents remaining after application pursuant to
the preceding sentence may be retained by Borrower free and
clear of, and released from, Lender's rights with respect to
Rents under this Instrument. From and after the occurrence of an
Event of Default, and without the necessity of Lender entering
upon and taking and maintaining control of the Mortgaged
Property directly, or by a receiver, Borrower's license to
collect Rents shall automatically terminate and Lender shall
without Notice be entitled to all Rents as they become due and
payable, including Rents then due and unpaid. Borrower
shall pay to Lender upon demand all Rents to which Lender is
entitled. At any time on or after the date of Lender's
demand for Rents, (i) Lender may give, and Borrower hereby
irrevocably authorizes Lender to give, notice to all tenants of
the Mortgaged Property instructing them to pay all Rents
to Lender, (ii) no tenant shall be obligated to inquire
further as to the occurrence or continuance of an Event of
Default, and (iii) no tenant shall be obligated to pay to
Borrower any amounts which are actually paid to Lender in
response to such a notice. Any such notice by Lender shall
be delivered to each tenant personally, by mail or by delivering
such demand to each rental unit. Borrower shall not
interfere with and shall cooperate with Lender's collection of
such Rents.
(c)
Borrower represents
and warrants to Lender that Borrower has not executed any prior
assignment of Rents (other than an assignment of Rents securing
any prior indebtedness that is being assigned to Lender, or paid
off and discharged with the proceeds of the loan evidenced by
the Note), that Borrower has not performed, and Borrower
covenants and agrees that it will not perform, any acts and has
not executed, and shall not execute, any instrument which would
prevent Lender from exercising its rights under this
Section 3, and that at the time of execution of this
Instrument there has been no anticipation or prepayment of any
Rents for more than two months prior to the due dates of such
Rents. Borrower shall not collect or accept payment of any
Rents more than two months prior to the due dates of such
Rents.
(d)
If an Event of
Default has occurred and is continuing, Lender may, regardless
of the adequacy of Lender's security or the solvency of Borrower
and even in the absence of waste, enter upon and take and
maintain full control of the Mortgaged Property in order to
perform all acts that Lender in its discretion determines to be
necessary or desirable for the operation and maintenance of the
Mortgaged Property, including the execution, cancellation or
modification of Leases, the collection of all Rents, the making
of repairs to the Mortgaged Property and the execution or
termination of contracts providing for the management, operation
or maintenance of the Mortgaged Property, for the purposes of
enforcing the assignment of Rents pursuant to Section 3(a),
protecting the Mortgaged Property or the security of this
Instrument, or for such other purposes as Lender in its
discretion may deem necessary or desirable. Alternatively,
if an Event of Default has occurred and is continuing,
regardless of the adequacy of Lender's security, without regard
to Borrower's solvency and without the necessity of giving prior
notice (oral or written) to Borrower, Lender may apply to
any court having jurisdiction for the appointment of a receiver
for the Mortgaged Property to take any or all of the actions set
forth in the preceding sentence. If Lender elects to seek
the appointment of a receiver for the Mortgaged Property at any
time after an Event of Default has occurred and is continuing,
Borrower, by its execution of this Instrument, expressly
consents to the appointment of such receiver, including the
appointment of a receiver ex parte if permitted by
applicable law. If Borrower is a housing cooperative
corporation or association, Borrower hereby agrees that if a
receiver is appointed, the order appointing the receiver may
contain a provision requiring the receiver to pay the
installments of interest and principal then due and payable
under the Note and the other amounts then due and payable under
the other Loan Documents, including Imposition Deposits, it
being acknowledged and agreed that the Indebtedness is an
obligation of the Borrower and must be paid out of maintenance
charges payable by the Borrower's tenant shareholders under
their proprietary leases or occupancy agreements. Lender
or the receiver, as the case may be, shall be entitled to
receive a reasonable fee for managing the Mortgaged Property.
Immediately upon appointment of a receiver or immediately
upon the Lender's entering upon and taking possession and
control of the Mortgaged Property, Borrower shall surrender
possession of the Mortgaged Property to Lender or the receiver,
as the case may be, and shall deliver to Lender or the receiver,
as the case may be, all documents, records (including records on
electronic or magnetic media), accounts, surveys, plans, and
specifications relating to the Mortgaged Property and all
security deposits and prepaid Rents. In the event Lender
takes possession and control of the Mortgaged Property, Lender
may exclude Borrower and its representatives from the Mortgaged
Property. Borrower acknowledges and agrees that the
exercise by Lender of any of the rights conferred under this
Section 3 shall not be construed to make Lender a
mortgagee-in-possession of the Mortgaged Property so long as
Lender has not itself entered into actual possession of the Land
and Improvements.
(e)
If Lender enters
the Mortgaged Property, Lender shall be liable to account only
to Borrower and only for those Rents actually received.
Except to the extent of Lender's gross negligence or
willful misconduct, Lender shall not be liable to Borrower,
anyone claiming under or through Borrower or anyone having an
interest in the Mortgaged Property, by reason of any act or
omission of Lender under Section 3(d), and Borrower hereby
releases and discharges Lender from any such liability to the
fullest extent permitted by law.
(f)
If the Rents are
not sufficient to meet the costs of taking control of and
managing the Mortgaged Property and collecting the Rents, any
funds expended by Lender for such purposes shall become an
additional part of the Indebtedness as provided in
Section 12.
(g)
Any entering upon
and taking of control of the Mortgaged Property by Lender or the
receiver, as the case may be, and any application of Rents as
provided in this Instrument shall not cure or waive any Event of
Default or invalidate any other right or remedy of Lender under
applicable law or provided for in this Instrument.
4.
ASSIGNMENT OF
LEASES; LEASES AFFECTING THE MORTGAGED PROPERTY.
(a)
As part of the
consideration for the Indebtedness, Borrower absolutely and
unconditionally assigns and transfers to Lender all of
Borrower's right, title and interest in, to and under the
Leases, including Borrower's right, power and authority to
modify the terms of any such Lease, or extend or terminate any
such Lease. It is the intention of Borrower to
establish a present, absolute and irrevocable transfer and
assignment to Lender of all of Borrower's right, title and
interest in, to and under the Leases. Borrower and Lender
intend this assignment of the Leases to be immediately effective
and to constitute an absolute present assignment and not an
assignment for additional security only. For purposes of
giving effect to this absolute assignment of the Leases, and for
no other purpose, the Leases shall not be deemed to be a part of
the Mortgaged Property. However, if this present, absolute
and unconditional assignment of the Leases is not enforceable by
its terms under the laws of the Property Jurisdiction, then the
Leases shall be included as a part of the Mortgaged Property and
it is the intention of the Borrower that in this circumstance
this Instrument create and perfect a lien on the Leases in favor
of Lender, which lien shall be effective as of the date of this
Instrument.
(b)
Until Lender gives
Notice to Borrower of Lender's exercise of its rights under this
Section 4, Borrower shall have all rights, power and
authority granted to Borrower under any Lease (except as
otherwise limited by this Section or any other provision of
this Instrument), including the right, power and authority to
modify the terms of any Lease or extend or terminate any Lease.
Upon the occurrence of an Event of Default, the permission
given to Borrower pursuant to the preceding sentence to exercise
all rights, power and authority under Leases shall automatically
terminate. Borrower shall comply with and observe
Borrower's obligations under all Leases, including Borrower's
obligations pertaining to the maintenance and disposition of
tenant security deposits.
(c)
Borrower
acknowledges and agrees that the exercise by Lender, either
directly or by a receiver, of any of the rights conferred under
this Section 4 shall not be construed to make Lender a
mortgagee-in-possession of the Mortgaged Property so long as
Lender has not itself entered into actual possession of the Land
and the Improvements. The acceptance by Lender of the
assignment of the Leases pursuant to
Section 4(a) shall not at any time or in any event
obligate Lender to take any action under this Instrument or to
expend any money or to incur any expenses. Except to the
extent of Lender's gross negligence or willful misconduct,
Lender shall not be liable in any way for any injury or damage
to person or property sustained by any person or persons, firm
or corporation in or about the Mortgaged Property. Prior
to Lender's actual entry into and taking possession of the
Mortgaged Property, Lender shall not (i) be obligated
to perform any of the terms, covenants and conditions
contained in any Lease (or otherwise have any obligation with
respect to any Lease); (ii) be obligated to appear in or
defend any action or proceeding relating to the Lease or the
Mortgaged Property; or (iii) be responsible for the
operation, control, care, management or repair of the Mortgaged
Property or any portion of the Mortgaged Property. The
execution of this Instrument by Borrower shall constitute
conclusive evidence that all responsibility for the operation,
control, care, management and repair of the Mortgaged Property
is and shall be that of Borrower, prior to such actual entry and
taking of possession.
(d)
Upon delivery of
Notice by Lender to Borrower of Lender's exercise of Lender's
rights under this Section 4 at any time after the
occurrence of an Event of Default, and without the necessity of
Lender entering upon and taking and maintaining control of the
Mortgaged Property directly, by a receiver, or by any other
manner or proceeding permitted by the laws of the Property
Jurisdiction, Lender immediately shall have all rights, powers
and authority granted to Borrower under any Lease, including the
right, power and authority to modify the terms of any such
Lease, or extend or terminate any such Lease.
(e)
Borrower shall,
promptly upon Lender's request, deliver to Lender an executed
copy of each residential Lease then in effect. All Leases
for residential dwelling units shall be on forms approved by
Lender, shall be for initial terms of at least six months and
not more than two years, and shall not include options to
purchase.
(f)
Borrower shall not
lease any portion of the Mortgaged Property for non-residential
use except with the prior written consent of Lender and Lender's
prior written approval of the Lease agreement. Borrower
shall not modify the terms of, or extend or terminate, any Lease
for non-residential use (including any Lease in existence on the
date of this Instrument) without the prior written consent
of Lender. However, Lender's consent shall not be required
for the modification or extension of a non-residential Lease if
such modification or extension is on terms at least as favorable
to Borrower as those customary at that time in the applicable
market and the income from the extended or modified Lease will
not be less than the income received from the Lease as of the
date of this Instrument. Borrower shall, without request
by Lender, deliver an executed copy of each non-residential
Lease to Lender promptly after such Lease is signed. All
non-residential Leases, including renewals or extensions of
existing Leases, shall specifically provide that (i) such
Leases are subordinate to the lien of this Instrument;
(ii) the tenant shall attorn to Lender and any purchaser at
a foreclosure sale, such attornment to be self-executing and
effective upon acquisition of title to the Mortgaged Property by
any purchaser at a foreclosure sale or by Lender in any manner;
(iii) the tenant agrees to execute such further evidences
of attornment as Lender or any purchaser at a foreclosure sale
may from time to time request; (iv) the Lease shall not be
terminated by foreclosure or any other transfer of the Mortgaged
Property; (v) after a foreclosure sale of the Mortgaged
Property, Lender or any other purchaser at such foreclosure sale
may, at Lender's or such purchaser's option, accept or terminate
such Lease; and (vi) the tenant shall, upon receipt after
the occurrence of an Event of Default of a written request from
Lender, pay all Rents payable under the Lease to
Lender.
(g)
Borrower shall not
receive or accept Rent under any Lease (whether residential or
non-residential) for more than two months in
advance.
(h)
If Borrower is a
cooperative housing corporation or association, notwithstanding
anything to the contrary contained in this subsection or in
Section 21, so long as Borrower remains a cooperative housing
corporation or association and is not in breach of any covenant
of this Instrument, Lender hereby consents to:
(i)
the execution of
leases of apartments for a term in excess of two years from
Borrower to a tenant shareholder of Borrower, so long as such
leases, including proprietary leases, are and will remain
subordinate to the lien of this Instrument; and
(ii)
the surrender or
termination of such leases of apartments where the surrendered
or terminated lease is immediately replaced or where the
Borrower makes its best efforts to secure such immediate
replacement by a newly executed lease of the same apartment to a
tenant shareholder of the Borrower. However, no consent is
hereby given by Lender to any execution, surrender, termination
or assignment of a lease under terms that would waive or reduce
the obligation of the resulting tenant shareholder under such
lease to pay cooperative assessments in full when due or the
obligation of the former tenant shareholder to pay any unpaid
portion of such assessments.
5.
PAYMENT OF
INDEBTEDNESS; PERFORMANCE UNDER LOAN DOCUMENTS; PREPAYMENT
PREMIUM. Borrower shall pay the Indebtedness
when due in accordance with the terms of the Note and the other
Loan Documents and shall perform, observe and comply with all
other provisions of the Note and the other Loan Documents.
Borrower shall pay a prepayment premium in connection with
certain prepayments of the Indebtedness, including a payment
made after Lender's exercise of any right of acceleration of the
Indebtedness, as provided in the Note.
6.
EXCULPATION. Borrower's
personal liability for payment of the Indebtedness and for
performance of the other obligations to be performed by it under
this Instrument is limited in the manner, and to the extent,
provided in the Note.
7.
DEPOSITS FOR
TAXES, INSURANCE AND OTHER CHARGES.
(a)
Unless this
requirement is waived in writing by Lender, which waiver may be
contained in this Section 7(a), Borrower shall deposit with
Lender on the day monthly installments of principal or interest,
or both, are due under the Note (or on another day designated in
writing by Lender), until the Indebtedness is paid in full, an
additional amount sufficient to accumulate with Lender the
entire sum required to pay, when due, the items marked "Collect"
below. Lender will not require the Borrower to make
Imposition Deposits with respect to the items marked "Deferred"
below.
[Deferred]
Hazard Insurance premiums or other insurance
premiums required by Lender under Section 19,
[Deferred]
Taxes,
[Deferred]
water and sewer charges (that could become a
lien on the Mortgaged Property),
[N/A]
ground rents,
[Deferred]
assessments or other charges (that could become
a lien on the Mortgaged Property)
The amounts deposited under the preceding
sentence are collectively referred to in this Instrument as the
" Imposition Deposits ." The obligations of
Borrower for which the Imposition Deposits are required are
collectively referred to in this Instrument as "
Impositions. " The amount of the Imposition
Deposits shall be sufficient to enable Lender to pay each
Imposition before the last date upon which such payment may be
made without any penalty or interest charge being added.
Lender shall maintain records indicating how much of the
monthly Imposition Deposits and how much of the aggregate
Imposition Deposits held by Lender are held for the purpose of
paying Taxes, insurance premiums and each other Imposition.
(b)
Imposition Deposits
shall be held in an institution (which may be Lender, if Lender
is such an institution) whose deposits or accounts are
insured or guaranteed by a federal agency. Lender shall
not be obligated to open additional accounts or deposit
Imposition Deposits in additional institutions when the amount
of the Imposition Deposits exceeds the maximum amount of the
federal deposit insurance or guaranty. Lender shall apply
the Imposition Deposits to pay Impositions so long as no Event
of Default has occurred and is continuing. Unless
applicable law requires, Lender shall not be required to pay
Borrower any interest, earnings or profits on the Imposition
Deposits. As additional security for all of Borrower's
obligations under this Instrument and the other Loan Documents,
Borrower hereby pledges and grants to Lender a security interest
in the Imposition Deposits and all proceeds of, and all interest
and dividends on, the Imposition Deposits. Any amounts
deposited with Lender under this Section 7 shall not be
trust funds, nor shall they operate to reduce the Indebtedness,
unless applied by Lender for that purpose under
Section 7(e).
(c)
If Lender receives
a bill or invoice for an Imposition, Lender shall pay the
Imposition from the Imposition Deposits held by Lender.
Lender shall have no obligation to pay any Imposition to
the extent it exceeds Imposition Deposits then held by Lender.
Lender may pay an Imposition according to any bill,
statement or estimate from the appropriate public office or
insurance company without inquiring into the accuracy of the
bill, statement or estimate or into the validity of the
Imposition.
(d)
If at any time the
amount of the Imposition Deposits held by Lender for payment of
a specific Imposition exceeds the amount reasonably deemed
necessary by Lender, the excess shall be credited against future
installments of Imposition Deposits. If at any time the
amount of the Imposition Deposits held by Lender for payment of
a specific Imposition is less than the amount reasonably
estimated by Lender to be necessary, Borrower shall pay to
Lender the amount of the deficiency within 15 days after Notice
from Lender.
(e)
If an Event of
Default has occurred and is continuing, Lender may apply any
Imposition Deposits, in any amounts and in any order as Lender
determines, in Lender's discretion, to pay any Impositions or as
a credit against the Indebtedness. Upon payment in full of the
Indebtedness, Lender shall refund to Borrower any Imposition
Deposits held by Lender.
(f)
If Lender does not
collect an Imposition Deposit with respect to an Imposition
either marked "Deferred" in Section 7(a) or pursuant to a
separate written waiver by Lender, then on or before the date
each such Imposition is due, or on the date this Instrument
requires each such Imposition to be paid, Borrower must provide
Lender with proof of payment of each such Imposition for which
Lender does not require collection of Imposition Deposits.
Lender may revoke its deferral or waiver and require
Borrower to deposit with Lender any or all of the Imposition
Deposits listed in Section 7(a), regardless of whether any
such item is marked "Deferred" in such section, upon Notice to
Borrower, (i) if Borrower does not timely pay any of the
Impositions, (ii) if Borrower fails to provide timely proof
to Lender of such payment, or (iii) at any time during the
existence of an Event of Default.
(g)
In the event of a
Transfer prohibited by or requiring Lender's approval under
Section 21, Lender's waiver of the collection of any
Imposition Deposit in this Section 7 may be modified or
rendered void by Lender at Lender's option by Notice to Borrower
and the transferee(s) as a condition of Lender's approval of
such Transfer.
8.
COLLATERAL
AGREEMENTS. Borrower shall deposit with Lender
such amounts as may be required by any Collateral Agreement and
shall perform all other obligations of Borrower under each
Collateral Agreement.
9.
APPLICATION OF
PAYMENTS. If at any time Lender receives, from
Borrower or otherwise, any amount applicable to the Indebtedness
which is less than all amounts due and payable at such time,
then Lender may apply that payment to amounts then due and
payable in any manner and in any order determined by Lender, in
Lender's discretion. Neither Lender's acceptance of an
amount that is less than all amounts then due and payable nor
Lender's application of such payment in the manner authorized
shall constitute or be deemed to constitute either a waiver of
the unpaid amounts or an accord and satisfaction.
Notwithstanding the application of any such amount to the
Indebtedness, Borrower's obligations under this Instrument and
the Note shall remain unchanged.
10.
COMPLIANCE WITH
LAWS AND ORGANIZATIONAL DOCUMENTS.
(a)
Borrower shall
comply with all laws, ordinances, regulations and requirements
of any Governmental Authority and all recorded lawful covenants
and agreements relating to or affecting the Mortgaged Property,
including all laws, ordinances, regulations, requirements and
covenants pertaining to health and safety, construction of
improvements on the Mortgaged Property, fair housing, disability
accommodation, zoning and land use, and Leases. Borrower
also shall comply with all applicable laws that pertain to the
maintenance and disposition of tenant security
deposits.
(b)
Borrower shall at
all times maintain records sufficient to demonstrate compliance
with the provisions of this Section 10.
(c)
Borrower shall take
appropriate measures to prevent, and shall not engage in or
knowingly permit, any illegal activities at the Mortgaged
Property that could endanger tenants or visitors, result in
damage to the Mortgaged Property, result in forfeiture of the
Mortgaged Property, or otherwise materially impair the lien
created by this Instrument or Lender's interest in the Mortgaged
Property. Borrower represents and warrants to Lender that
no portion of the Mortgaged Property has been or will be
purchased with the proceeds of any illegal activity.
(d)
Borrower shall at
all times comply with all laws, regulations and requirements of
any Governmental Authority relating to Borrower's formation,
continued existence and good standing in the Property
Jurisdiction. Borrower shall at all times comply with its
organizational documents, including but not limited to its
partnership agreement (if Borrower is a partnership), its
by-laws (if Borrower is a corporation or housing cooperative
corporation or association) or its operating agreement (if
Borrower is an limited liability company, joint venture or
tenancy-in-common ). If Borrower is a housing cooperative
corporation or association, Borrower shall at all times maintain
its status as a "cooperative housing corporation" as such term
is defined in Section 216(b) of the Internal revenue Code of
1986, as amended, or any successor statute thereto.
11.
USE OF PROPERTY.
Unless required by applicable law, Borrower
shall not (a) allow changes in the use for which all or any
part of the Mortgaged Property is being used at the time this
Instrument was executed, except for any change in use approved
by Lender, (b) convert any individual dwelling units or
common areas to commercial use, (c) initiate a change in
the zoning classification of the Mortgaged Property or acquiesce
without Notice to and consent of Lender in a change in the
zoning classification of the Mortgaged Property,
(d) establish any condominium or cooperative regime with
respect to the Mortgaged Property, (e) combine all or any
part of the Mortgaged Property with all or any part of a tax
parcel which is not part of the Mortgaged Property, or
(f) subdivide or otherwise split any tax parcel
constituting all or any part of the Mortgaged Property without
the prior consent of Lender. Notwithstanding anything
contained in this Section to the contrary, if Borrower is a
housing cooperative corporation or association, Lender
acknowledges and consents to Borrower's use of the Mortgaged
Property as a housing cooperative.
12.
PROTECTION OF
LENDER'S SECURITY; INSTRUMENT SECURES FUTURE
ADVANCES.
(a)
If Borrower fails
to perform any of its obligations under this Instrument or any
other Loan Document, or if any action or proceeding is commenced
which purports to affect the Mortgaged Property, Lender's
security or Lender's rights under this Instrument, including
eminent domain, insolvency, code enforcement, civil or criminal
forfeiture, enforcement of Hazardous Materials Laws, fraudulent
conveyance or reorganizations or proceedings involving a
bankrupt or decedent, then Lender at Lender's option may make
such appearances, file such documents, disburse such sums and
take such actions as Lender reasonably deems necessary to
perform such obligations of Borrower and to protect Lender's
interest, including (i) payment of Attorneys' Fees and
Costs, (ii) payment of fees and out-of-pocket expenses of
accountants, inspectors and consultants, (iii) entry upon
the Mortgaged Property to make repairs or secure the Mortgaged
Property, (iv) procurement of the insurance required by
Section 19, (v) payment of amounts which Borrower has
failed to pay under Sections 15 and 17, and (vi)
advances made by Lender to pay, satisfy or discharge any
obligation of Borrower for the payment of money that is secured
by a pre-existing mortgage, deed of trust or other lien
encumbering the Mortgaged Property (a " Prior Lien
").
(b)
Any amounts
disbursed by Lender under this Section 12, or under any
other provision of this Instrument that treats such disbursement
as being made under this Section 12, shall be secured by
this Instrument, shall be added to, and become part of, the
principal component of the Indebtedness, shall be immediately
due and payable and shall bear interest from the date of
disbursement until paid at the " Default Rate ,"
as defined in the Note.
(c)
Nothing in this
Section 12 shall require Lender to incur any expense or
take any action.
13.
INSPECTION.
(a)
Lender, its agents,
representatives, and designees may make or cause to be made
entries upon and inspections of the Mortgaged Property
(including environmental inspections and tests) during
normal business hours, or at any other reasonable time, upon
reasonable notice to Borrower if the inspection is to include
occupied residential units (which notice need not be in
writing). Notice to Borrower shall not be required in the
case of an emergency, as determined in Lender's discretion, or
when an Event of Default has occurred and is
continuing.
(b)
If Lender
determines that Mold has developed as a result of a water
intrusion event or leak, Lender, at Lender's discretion, may
require that a professional inspector inspect the Mortgaged
Property as frequently as Lender determines is necessary until
any issue with Mold and its cause(s) are resolved to Lender's
satisfaction. Such inspection shall be limited to a visual
and olfactory inspection of the area that has experienced the
Mold, water intrusion event or leak. Borrower shall be
responsible for the cost of such professional inspection and any
remediation deemed to be necessary as a result of the
professional inspection. After any issue with Mold, water
intrusion or leaks is remedied to Lender's satisfaction, Lender
shall not require a professional inspection any more frequently
than once every three years unless Lender is otherwise aware of
Mold as a result of a subsequent water intrusion event or
leak.
(c)
If Lender or Loan
Servicer determines not to conduct an annual inspection of the
Mortgaged Property, and in lieu thereof Lender requests a
certification, Borrower shall be prepared to provide and must
actually provide to Lender a factually correct certification
each year that the annual inspection is waived to the following
effect:
Borrower has not received any written complaint,
notice, letter or other written communication from tenants,
management agent or governmental authorities regarding mold,
fungus, microbial contamination or pathogenic organisms ("
Mold ") or any activity, condition, event or omission
that causes or facilitates the growth of Mold on or in any part
of the Mortgaged Property or if Borrower has received any such
written complaint, notice, letter or other written communication
that Borrower has investigated and determined that no Mold
activity, condition or event exists or alternatively has
fully and properly remediated such activity, condition,
event or omission in compliance with the Moisture Management
Plan for the Mortgaged Property.
If Borrower is unwilling or unable to provide
such certification, Lender may require a professional inspection
of the Mortgaged Property at Borrower's expense.
14.
BOOKS AND
RECORDS; FINANCIAL REPORTING.
(a)
Borrower shall keep
and maintain at all times at the Mortgaged Property or the
management agent's office, and upon Lender's request shall make
available at the Mortgaged Property (or, at Borrower's option,
at the management agent's office), complete and accurate books
of account and records (including copies of supporting bills and
invoices) adequate to reflect correctly the operation of
the Mortgaged Property, and copies of all written contracts,
Leases, and other instruments which affect the Mortgaged
Property. The books, records, contracts, Leases and other
instruments shall be subject to examination and inspection by
Lender at any reasonable time.
(b)
Within 120 days
after the end of each fiscal year of Borrower, Borrower shall
furnish to Lender a statement of income and expenses for
Borrower's operation of the Mortgaged Property for that fiscal
year, a statement of changes in financial position of Borrower
relating to the Mortgaged Property for that fiscal year and,
when requested by Lender, a balance sheet showing all assets and
liabilities of Borrower relating to the Mortgaged Property as of
the end of that fiscal year. If Borrower's fiscal year is
other than the calendar year, Borrower must also submit to
Lender a year-end statement of income and expenses within 120
days after the end of the calendar year.
(c)
Within 120 days
after the end of each calendar year, and at any other time, upon
Lender's request, Borrower shall furnish to Lender each of the
following. However, Lender shall not require any of the
following more frequently than quarterly except when there has
been an Event of Default and such Event of Default is
continuing, in which case Lender may, upon written request to
Borrower, require Borrower to furnish any of the following more
frequently:
(i)
a rent schedule for
the Mortgaged Property showing the name of each tenant, and for
each tenant, the space occupied, the lease expiration date, the
rent payable for the current month, the date through which rent
has been paid, and any related information requested by
Lender;
(ii)
an accounting of
all security deposits held pursuant to all Leases, including the
name of the institution (if any) and the names and
identification numbers of the accounts (if any) in which
such security deposits are held and the name of the person to
contact at such financial institution, along with any authority
or release necessary for Lender to access information regarding
such accounts; and
(iii)
a statement that
identifies all owners of any interest in Borrower and any
Controlling Entity and the interest held by each (unless
Borrower or any Controlling Entity is a publicly-traded entity
in which case such statement of ownership shall not be
required), if Borrower or a Controlling Entity is a corporation,
all officers and directors of Borrower and the Controlling
Entity, and if Borrower or a Controlling Entity is a limited
liability company, all managers who are not members.
(d)
At any time upon
Lender's request, Borrower shall furnish to Lender each of the
following. However, Lender shall not require any of the
following more frequently than quarterly except when there has
been an Event of Default and such Event of Default is
continuing, in which case Lender may require Borrower to furnish
any of the following more frequently:
(i)
a balance sheet, a
statement of income and expenses for Borrower and a statement of
changes in financial position of Borrower for Borrower's most
recent fiscal year;
(ii)
a quarterly or
year-to-date income and expense statement for the Mortgaged
Property; and
(iii)
a monthly property
management report for the Mortgaged Property, showing the number
of inquiries made and rental applications received from tenants
or prospective tenants and deposits received from tenants and
any other information requested by Lender.
(e)
Upon Lender's
request at any time when an Event of Default has occurred and is
continuing, Borrower shall furnish to Lender monthly income and
expense statements and rent schedules for the Mortgaged
Property.
(f)
An individual
having authority to bind Borrower shall certify each of the
statements, schedules and reports required by
Sections 14(b) through 14(e) to be complete and
accurate. Each of the statements, schedules and reports
required by Sections 14(b) through 14(e) shall be
in such form and contain such detail as Lender may reasonably
require. Lender also may require that any of the
statements, schedules or reports listed in
Section 14(b) and 14(c)(i) and (ii) be
audited at Borrower's expense by independent certified public
accountants acceptable to Lender, at any time when an Event of
Default has occurred and is continuing or at any time that
Lender, in its reasonable judgment, determines that audited
financial statements are required for an accurate assessment of
the financial condition of Borrower or of the Mortgaged
Property.
(g)
If Borrower fails
to provide in a timely manner the statements, schedules and
reports required by Sections 14(b) through (e), Lender
shall give Borrower Notice specifying the statements, schedules
and reports required by Section 14(b) through
(e) that Borrower has failed to provide. If Borrower
has not provided the required statements, schedules and reports
within 10 Business Days following such Notice, then Lender shall
have the right to have Borrower's books and records
audited, at Borrower's expense, by independent certified public
accountants selected by Lender in order to obtain such
statements, schedules and reports, and all related costs and
expenses of Lender shall become immediately due and payable and
shall become an additional part of the Indebtedness as provided
in Section 12. Notice to Borrower shall not be
required in the case of an emergency, as determined in Lender's
discretion, or when an Event of Default has occurred and is
continuing.
(h)
If an Event of
Default has occurred and is continuing, Borrower shall deliver
to Lender upon written demand all books and records relating to
the Mortgaged Property or its operation.
(i)
Borrower authorizes
Lender to obtain a credit report on Borrower at any
time.
15.
TAXES; OPERATING
EXPENSES.
(a)
Subject to the
provisions of Section 15(c) and Section 15(d),
Borrower shall pay, or cause to be paid, all Taxes when due and
before the addition of any interest, fine, penalty or cost for
nonpayment.
(b)
Subject to the
provisions of Section 15(c), Borrower shall (i) pay
the expenses of operating, managing, maintaining and repairing
the Mortgaged Property (including utilities, repairs and
replacements) before the last date upon which each such
payment may be made without any penalty or interest charge being
added, and (ii) pay insurance premiums at least
30 days prior to the expiration date of each policy of
insurance, unless applicable law specifies some lesser
period.
(c)
If Lender is
collecting Imposition Deposits, to the extent that Lender holds
sufficient Imposition Deposits for the purpose of paying a
specific Imposition, then Borrower shall not be obligated to pay
such Imposition, so long as no Event of Default exists and
Borrower has timely delivered to Lender any bills or premium
notices that it has received. If an Event of Default
exists, Lender may exercise any rights Lender may have with
respect to Imposition Deposits without regard to whether
Impositions are then due and payable. Lender shall have no
liability to Borrower for failing to pay any Impositions to the
extent that (i) any Event of Default has occurred and is
continuing, (ii) insufficient Imposition Deposits are held
by Lender at the time an Imposition becomes due and payable or
(iii) Borrower has failed to provide Lender with bills and
premium notices as provided above.
(d)
Borrower, at its
own expense, may contest by appropriate legal proceedings,
conducted diligently and in good faith, the amount or validity
of any Imposition other than insurance premiums, if
(i) Borrower notifies Lender of the commencement or
expected commencement of such proceedings, (ii) the
Mortgaged Property is not in danger of being sold or forfeited,
(iii) if Borrower has not already paid the Imposition,
Borrower deposits with Lender reserves sufficient to pay the
contested Imposition, if requested by Lender, and
(iv) Borrower furnishes whatever additional security is
required in the proceedings or is reasonably requested by
Lender.
(e)
Borrower shall
promptly deliver to Lender a copy of all notices of, and
invoices for, Impositions, and if Borrower pays any Imposition
directly, Borrower shall furnish to Lender on or before the date
this Instrument requires such Impositions to be paid, receipts
evidencing that such payments were made.
16.
LIENS;
ENCUMBRANCES. Borrower acknowledges that, to
the extent provided in Section 21, the grant, creation or
existence of any mortgage, deed of trust, deed to secure debt,
security interest or other lien or encumbrance (a " Lien
") on the Mortgaged Property (other than the lien of this
Instrument) or on certain ownership interests in Borrower,
whether voluntary, involuntary or by operation of law, and
whether or not such Lien has priority over the lien of this
Instrument, is a " Transfer " which constitutes an Event
of Default and subjects Borrower to personal liability under the
Note.
17.
PRESERVATION,
MANAGEMENT AND MAINTENANCE OF MORTGAGED PROPERTY.
(a)
Borrower shall not
commit waste or permit impairment or deterioration of the
Mortgaged Property.
(b)
Borrower shall not
abandon the Mortgaged Property.
(c)
Borrower shall
restore or repair promptly, in a good and workmanlike manner,
any damaged part of the Mortgaged Property to the equivalent of
its original condition, or such other condition as Lender may
approve in writing, whether or not insurance proceeds or
condemnation awards are available to cover any costs of such
restoration or repair; however, Borrower shall not be obligated
to perform such restoration or repair if (i) no Event of
Default has occurred and is continuing, and (ii) Lender has
elected to apply any available insurance proceeds and/or
condemnation awards to the payment of Indebtedness pursuant to
Section 19(h)(ii), (iii), (iv) or (v), or pursuant to
Section 20.
(d)
Borrower shall keep
the Mortgaged Property in good repair, including the replacement
of Personalty and Fixtures with items of equal or better
function and quality.
(e)
Borrower shall
provide for professional management of the Mortgaged Property by
a residential rental property manager satisfactory to Lender at
all times under a contract approved by Lender in writing, which
contract must be terminable upon not more than 30 days
notice without the necessity of establishing cause and without
payment of a penalty or termination fee by Borrower or its
successors.
(f)
Borrower shall give
Notice to Lender of and, unless otherwise directed in writing by
Lender, shall appear in and defend any action or proceeding
purporting to affect the Mortgaged Property, Lender's security
or Lender's rights under this Instrument. Borrower shall
not (and shall not permit any tenant or other person
to) remove, demolish or alter the Mortgaged Property or any
part of the Mortgaged Property, including any removal,
demolition or alteration occurring in connection with a
rehabilitation of all or part of the Mortgaged Property, except
(i) in connection with the replacement of tangible
Personalty, (ii) if Borrower is a cooperative housing
corporation or association, to the extent permitted with respect
to individual dwelling units under the form of proprietary lease
or occupancy agreement and (iii) repairs and replacements
in connection with making an individual unit ready for a new
occupant.
(g)
Unless otherwise
waived by Lender in writing, Borrower must have or must
establish and must adhere to the MMP. If the Borrower is
required to have an MMP, the Borrower must keep all MMP
documentation at the Mortgaged Property or at the management
agent's office and available for the Lender or the Loan Servicer
to review during any annual assessment or other inspection of
the Mortgaged Property that is required by Lender.
(h)
If Borrower is a
housing cooperative corporation or association, until the
Indebtedness is paid in full Borrower shall not reduce the
maintenance fees, charges or assessments payable by shareholders
or residents under proprietary leases or occupancy agreements
below a level which is sufficient to pay all expenses of the
Borrower, including, without limitation, all operating
and other expenses for the Mortgaged Property and all payments
due pursuant to the terms of the Note and any Loan
Documents.
18.
ENVIRONMENTAL
HAZARDS.
(a)
Except for matters
described in Section 18(b), Borrower shall not cause or
permit any of the following:
(i)
the presence, use,
generation, release, treatment, processing, storage (including
storage in above ground and underground storage tanks),
handling, or disposal of any Hazardous Materials on or under the
Mortgaged Property or any other property of Borrower that is
adjacent to the Mortgaged Property;
(ii)
the transportation
of any Hazardous Materials to, from, or across the Mortgaged
Property;
(iii)
any occurrence or
condition on the Mortgaged Property or any other property of
Borrower that is adjacent to the Mortgaged Property, which
occurrence or condition is or may be in violation of Hazardous
Materials Laws;
(iv)
any violation of or
noncompliance with the terms of any Environmental Permit with
respect to the Mortgaged Property or any property of Borrower
that is adjacent to the Mortgaged Property; or
(v)
any violation or
noncompliance with the terms of any O&M Program as defined
in subsection (d).
The matters described in clauses
(i) through (v) above, except as otherwise provided in
Section 18(b), are referred to collectively in this
Section 18 as " Prohibited Activities or Conditions
."
(b)
Prohibited
Activities or Conditions shall not include lawful conditions
permitted by an O&M Program or the safe and lawful use and
storage of quantities of (i) pre-packaged supplies,
cleaning materials and petroleum products customarily used in
the operation and maintenance of comparable multifamily
properties, (ii) cleaning materials, personal grooming
items and other items sold in pre-packaged containers for
consumer use and used by tenants and occupants of residential
dwelling units in the Mortgaged Property; and
(iii) petroleum products used in the operation and
maintenance of motor vehicles from time to time located on the
Mortgaged Property's parking areas, so long as all of the
foregoing are used, stored, handled, transported and disposed of
in compliance with Hazardous Materials Laws.
(c)
Borrower shall take
all commercially reasonable actions (including the inclusion of
appropriate provisions in any Leases executed after the date of
this Instrument) to prevent its employees, agents, and
contractors, and all tenants and other occupants from causing or
permitting any Prohibited Activities or Conditions.
Borrower shall not lease or allow the sublease or use of
all or any portion of the Mortgaged Property to any tenant or
subtenant for nonresidential use by any user that, in the
ordinary course of its business, would cause or permit any
Prohibited Activity or Condition.
(d)
As required by
Lender, Borrower shall also have established a written
operations and maintenance program with respect to certain
Hazardous Materials. Each such operations and
maintenance program and any additional or revised operations and
maintenance programs established for the Mortgaged Property
pursuant to this Section 18 must be approved by Lender and
shall be referred to herein as an " O&M Program ."
Borrower shall comply in a timely manner with, and cause
all employees, agents, and contractors of Borrower and any other
persons present on the Mortgaged Property to comply with each
O&M Program. Borrower shall pay all costs of
performance of Borrower's obligations under any O&M Program,
and Lender's out-of-pocket costs incurred in connection with the
monitoring and review of each O&M Program and Borrower's
performance shall be paid by Borrower upon demand by Lender.
Any such out-of-pocket costs of Lender that Borrower fails
to pay promptly shall become an additional part of the
Indebtedness as provided in Section 12.
(e)
Borrower represents
and warrants to Lender that, except as previously disclosed by
Borrower to Lender in writing (which written disclosure may be
in certain environmental assessments and other written reports
accepted by Lender in connection with the funding of the
Indebtedness and dated prior to the date of this
Instrument):
(i)
Borrower has not at
any time engaged in, caused or permitted any Prohibited
Activities or Conditions on the Mortgaged Property;
(ii)
to the best of
Borrower's knowledge after reasonable and diligent inquiry, no
Prohibited Activities or Conditions exist or have existed on the
Mortgaged Property;
(iii)
the Mortgaged
Property does not now contain any underground storage tanks,
and, to the best of Borrower's knowledge after reasonable and
diligent inquiry, the Mortgaged Property has not contained any
underground storage tanks in the past. If there is an
underground storage tank located on the Mortgaged Property that
has been previously disclosed by Borrower to Lender in writing,
that tank complies with all requirements of Hazardous Materials
Laws;
(iv)
to the best of
Borrower's knowledge after reasonable and diligent inquiry,
Borrower has complied with all Hazardous Materials Laws,
including all requirements for notification regarding releases
of Hazardous Materials. Without limiting the generality of
the foregoing, Borrower has obtained all Environmental Permits
required for the operation of the Mortgaged Property in
accordance with Hazardous Materials Laws now in effect and all
such Environmental Permits are in full force and effect;
(v)
to the best of
Borrower's knowledge after reasonable and diligent inquiry, no
event has occurred with respect to the Mortgaged Property that
constitutes, or with the passing of time or the giving of notice
would constitute, noncompliance with the terms of any
Environmental Permit;
(vi)
there are no
actions, suits, claims or proceedings pending or, to the best of
Borrower's knowledge after reasonable and diligent inquiry,
threatened that involve the Mortgaged Property and allege, arise
out of, or relate to any Prohibited Activity or Condition;
and
(vii)
Borrower has not
received any written complaint, order, notice of violation or
other communication from any Governmental Authority with regard
to air emissions, water discharges, noise emissions or Hazardous
Materials, or any other environmental, health or safety matters
affecting the Mortgaged Property or any other property of
Borrower that is adjacent to the Mortgaged Property.
(f)
Borrower shall
promptly notify Lender in writing upon the occurrence of any of
the following events:
(i)
Borrower's
discovery of any Prohibited Activity or Condition;
(ii)
Borrower's receipt
of or knowledge of any written complaint, order, notice of
violation or other communication from any tenant, management
agent, Governmental Authority or other person with regard to
present or future alleged Prohibited Activities or Conditions,
or any other environmental, health or safety matters affecting
the Mortgaged Property or any other property of Borrower that is
adjacent to the Mortgaged Property; or
(iii)
Borrower's breach
of any of its obligations under this Section 18.
Any such notice given by Borrower shall not
relieve Borrower of, or result in a waiver of, any obligation
under this Instrument, the Note, or any other Loan Document.
(g)
Borrower shall pay
promptly the costs of any environmental inspections, tests or
audits, a purpose of which is to identify the extent or cause of
or potential for a Prohibited Activity or Condition ("
Environmental Inspections "), required by Lender in
connection with any foreclosure or deed in lieu of foreclosure,
or as a condition of Lender's consent to any Transfer under
Section 21, or required by Lender following a reasonable
determination by Lender that Prohibited Activities or Conditions
may exist. Any such costs incurred by Lender (including
Attorneys' Fees and Costs and the costs of technical consultants
whether incurred in connection with any judicial or
administrative process or otherwise) that Borrower fails to
pay promptly shall become an additional part of the Indebtedness
as provided in Section 12. As long as (i) no
Event of Default has occurred and is continuing,
(ii) Borrower has actually paid for or reimbursed Lender
for all costs of any such Environmental Inspections performed or
required by Lender, and (iii) Lender is not prohibited by
law, contract or otherwise from doing so, Lender shall make
available to Borrower, without representation of any kind,
copies of Environmental Inspections prepared by third parties
and delivered to Lender. L
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