EX-10.7






Prepared by, and after recording return to:



	 	 	 
	Edwin C. Cox, Esquire

Troutman Sanders LLP

	 	

Tax Map ID/Tax Parcel Number:
	Post Office Box 1122

	 	

	
 
	 	 






Richmond, Virginia 23218-1122



MULTIFAMILY DEED OF TRUST,

ASSIGNMENT OF RENTS

AND SECURITY AGREEMENT




(VIRGINIA – REVISION DATE 05-11-2004)




1




FHLMC Loan No. 487791355




The Heights at Olde Towne




MULTIFAMILY DEED OF TRUST,

ASSIGNMENT OF RENTS

AND SECURITY AGREEMENT

(VIRGINIA – REVISION DATE 05-11-2004)




THIS MULTIFAMILY DEED OF TRUST, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (the “Instrument”)
is made to be effective as of December 21, 2007, by G&E APARTMENT REIT THE HEIGHTS AT OLDE TOWNE,
LLC, a limited liability company organized and existing under the laws of Delaware, whose address
is c/o Triple Net Properties, LLC, 1606 Santa Rosa Road, Suite 109, Richmond, Virginia 23229, as
grantor (“Borrower”), to MARK S. SHIEMBOB, a resident of the City of Richmond, Virginia and
BERNICE H. CILLEY, a resident of the County of Henrico Virginia, whose business address is
Troutman Sanders LLP, 1001 Haxall Point, Richmond, Virginia 23219, as trustee (“Trustee”), for the
benefit of 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, with a copy to
Capmark Finance Inc., 116 Welsh Road, Horsham, Pennsylvania 19044, Attn: Servicing – Executive
Vice President, as beneficiary (“Lender”). Borrower’s organizational identification number, if
applicable, is 4477233.



Borrower, in consideration of the Indebtedness and the trust created by this Instrument,
irrevocably grants, conveys and assigns to Trustee, in trust, with power of sale, the Mortgaged
Property, including the Land located in the City of Portsmouth, Commonwealth of Virginia and
described in Exhibit A attached to this Instrument.



TO SECURE TO LENDER the repayment of the Indebtedness evidenced by Borrower’s Multifamily Note
payable to Lender, dated as of the date of this Instrument, and maturing on January 1, 2019 (the
“Maturity Date”), the principal amount of $10,475,000.00, 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 represents and warrants that Borrower is lawfully seized of the Mortgaged Property,
has the right, power and authority to 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 01-30-2006




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.



(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)

(iii)

(iv)

	 	the Improvements;

the Fixtures;

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






	 	(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)

(bb)

	 	"O&M Program” is defined in Section 18(d).

"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), 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





	 	 	 
	(cc)

	 	(vii)any rights of Borrower in or under letters of credit.

"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.



(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. 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. If Borrower is a cooperative housing corporation,
association or other validly organized entity under municipal, county, state or federal law,
notwithstanding anything to the contrary contained in this subsection, so long as Borrower is not
in breach of any covenant of this Instrument, Lender hereby consents to the execution of leases of
apartments for a term in excess of two years from Borrower to a tenant shareholder of Borrower, to
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.



(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.



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.




	 	 	 	[Collect] Hazard Insurance premiums or other insurance premiums required by Lender
under Section 19,	 





[Collect] 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. 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. Borrower shall at all times maintain records sufficient to
demonstrate compliance with the provisions of this Section 10. Borrower shall take appropriate
measures to prevent, and shall not engage in or knowingly permit, any illegal activities at the
Mortgaged Property that could endanger tenants or visitors, result in damage to the Mortgaged
Property, result in forfeiture of the Mortgaged Property, or otherwise materially impair the lien
created by this Instrument or 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.



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.



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, and (v) payment of amounts which Borrower has failed to pay under
Sections 15 and 17.



(b) Any amounts disbursed by Lender under this Section 12, or under any other provision of
this Instrument that treats such disbursement as being made under this Section 12, shall be 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 odors, indoor air quality, 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,
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.



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;






	 	(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. Lender hereby reserves the right, and Borrower hereby expressly
authorizes Lender, to make available to any party, including any prospective bidder at a
foreclosure sale of the Mortgaged Property, the results of any Environmental Inspections made by or
for Lender with respect to the Mortgaged Property. Borrower consents to Lender notifying any party
(either as part of a notice of sale or otherwise) of the results of any Environmental Inspections
made by or for Lender. Borrower acknowledges that Lender cannot control or otherwise assure the
truthfulness or accuracy of the results of any Environmental Inspections and that the release of
such results to prospective bidders at a foreclosure sale of the Mortgaged Property may have a
material and adverse effect upon the amount that a party may bid at such sale. Borrower agrees
that Lender shall have no liability whatsoever as a result of delivering the results to any third
party of any Environmental Inspections made by or for Lender, and Borrower hereby releases and
forever discharges Lender from any and all claims, damages, or causes of action, arising out of,
connected with or incidental to the results of, the delivery of any of Environmental Inspections
made by or for Lender.



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



(i) Borrower shall comply with all Hazardous Materials Laws applicable to the Mortgaged
Property. Without limiting the generality of the previous sentence, Borrower shall (i) obtain and
maintain all Environmental Permits required by Hazardous Materials Laws and comply with all
conditions of such Environmental Permits; (ii) cooperate with any inquiry by any Governmental
Authority; and (iii) comply with any governmental or judicial order that arises from any alleged
Prohibited Activity or Condition.



(j) Borrower shall indemnify, hold harmless and defend (i) Lender, (ii) any prior owner or
holder of the Note, (iii) the Loan Servicer, (iv) any prior Loan Servicer, (v) the officers,
directors, shareholders, partners, employees and trustees of any of the foregoing, and (vi) the
heirs, legal representatives, successors and assigns of each of the foregoing (collectively, the
"Indemnitees”) from and against all proceedings, claims, damages, penalties and costs (whether
initiated or sought by Governmental Authorities or private parties), including Attorneys’ Fees and
Costs and remediation costs, whether incurred in connection with any judicial or administrative
process or otherwise, arising directly or indirectly from any of the following:




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






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






	 	(iii)	 	the existence or alleged existence of any Prohibited Activity
or Condition;






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






	 	(v)	 	the actual or alleged violation of any Hazardous Materials Law.





(k) Counsel selected by Borrower to defend Indemnitees shall be subject to the approval of
those Indemnitees. In any circumstances in which the indemnity under this Section 18 applies,
Lender may employ its own legal counsel and consultants to prosecute, defend or negotiate any claim
or legal or administrative proceeding and Lender, with the prior written consent of Borrower (which
shall not be unreasonably withheld, delayed or conditioned) may settle or compromise any action or
legal or administrative proceeding. However, unless an Event of Default has occurred and is
continuing, or the interests of Borrower and Lender are in conflict, as determined by Lender in its
discretion, Lender shall permit Borrower to undertake the actions referenced in this Section 18 in
accordance with this Section 18(k) and Section 18(l) so long as Lender approves such action, which
approval shall not be unreasonably withheld or delayed. Borrower shall reimburse Lender upon
demand for all costs and expenses incurred by Lender, including all costs of settlements entered
into in good faith, consultants’ fees and Attorneys’ Fees and Costs.



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



(m) Borrower’s obligation to indemnify the Indemnitees shall not be limited or impaired by any
of the following, or by any failure of Borrower or any guarantor to receive notice of or
consideration for any of the following:




	 	(i)	 	any amendment or modification of any Loan Document;






	 	(ii)	 	any extensions of time for performance required by any Loan
Document;






	 	(iii)	 	any provision in any of the Loan Documents limiting Lender’s
recourse to property securing the Indebtedness, or limiting the personal
liability of Borrower or any other party for payment of all or any part of the
Indebtedness;






	 	(iv)	 	the accuracy or inaccuracy of any representations and
warranties made by Borrower under this Instrument or any other Loan Document;






	 	(v)	 	the release of Borrower or any other person, by Lender or by
operation of law, from performance of any obligation under any Loan Document;






	 	(vi)	 	the release or substitution in whole or in part of any security
for the Indebtedness; and






	 	(vii)	 	Lender’s failure to properly perfect any lien or security
interest given as security for the Indebtedness.





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




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






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






	 	(iii)	 	reimburse Indemnitees for any and all expenses, including
Attorneys’ Fees and Costs, paid or incurred in connection with the enforcement
by Indemnitees of their rights under this Section 18, or in monitoring and
participating in any legal or administrative proceeding.





(o) The provisions of this Section 18 shall be in addition to any and all other obligations
and liabilities that Borrower may have under applicable law or under other Loan Documents, and each
Indemnitee shall be entitled to indemnification under this Section 18 without regard to whether
Lender or that Indemnitee has exercised any rights against the Mortgaged Property or any other
security, pursued any rights against any guarantor, or pursued any other rights available under the
Loan Documents or applicable law. If Borrower consists of more than one person or entity, the
obligation of those persons or entities to indemnify the Indemnitees under this Section 18 shall be
joint and several. The obligation of Borrower to indemnify the Indemnitees under this Section 18
shall survive any repayment or discharge of the Indebtedness, any foreclosure proceeding, any
foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of record of the
lien of this Instrument. Notwithstanding the foregoing, if Lender has never been a
mortgagee-in-possession of, or held title to, the Mortgaged Property, Borrower shall have no
obligation to indemnify the Indemnitees under this Section 18 after the date of the release of
record of the lien of this Instrument by payment in full at the Maturity Date or by voluntary
prepayment in full.



19. PROPERTY AND LIABILITY INSURANCE.



(a) Borrower shall keep the Improvements insured at all times against such hazards as Lender
may from time to time require, which insurance shall include but not be limited to coverage against
loss by fire and allied perils, general boiler and machinery coverage, rent loss and extra expense
insurance. If Lender so requires, such insurance shall also include sinkhole insurance, mine
subsidence insurance, earthquake insurance, and, if the Mortgaged Property does not conform to
applicable zoning or land use laws, building ordinance or law coverage. Borrower acknowledges and
agrees that Lender’s insurance requirements may change from time to time throughout the term of the
Indebtedness. If any of the Improvements is located in an area identified by the Federal Emergency
Management Agency (or any successor to that agency) as an area having special flood hazards,
Borrower shall insure such Improvements against loss by flood. All insurance required pursuant to
this Section 19(a) shall be referred to as “Hazard Insurance.”



(b) All premiums on Hazard Insurance policies required under Section 19(a) shall be paid in
the manner provided in Section 7, unless Lender has designated in writing another method of
payment. All such policies shall also be in a form approved by Lender. All policies of property
damage insurance shall include a non-contributing, non-reporting mortgage clause in favor of, and
in a form approved by, Lender. Lender shall have the right to hold the original policies or
duplicate original policies of all Hazard Insurance required by Section 19(a). Borrower shall
promptly deliver to Lender a copy of all renewal and other notices received by Borrower with
respect to the policies and all receipts for paid premiums. At least 5 days prior to the
expiration date of any Hazard Insurance policy, Borrower shall deliver to Lender evidence
acceptable to Lender that the policy has been renewed. If Borrower has not delivered the original
(or a duplicate original) of a renewal policy prior to the expiration date of any Hazard Insurance
policy, Borrower shall deliver the original (or a duplicate original) of a renewal policy in a form
satisfactory to Lender within 120 days after the expiration date of the original policy.



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



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



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



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



(g) Notwithstanding any provision to the contrary in this Section 19, as long as no Event of
Default, or any event which, with the giving of Notice or the passage of time, or both, would
constitute an Event of Default, has occurred and is continuing,




	 	(i)	 	in the event of a casualty resulting in damage to the Mortgaged
Property which will cost $10,000 or less to repair, the Borrower shall have the
sole right to make proof of loss, adjust and compromise the claim and collect
and receive any proceeds directly without the approval or prior consent of the
Lender so long as the insurance proceeds are used solely for the Restoration of
the Mortgaged Property; and






	 	(ii)	 	in the event of a casualty resulting in damage to the Mortgaged
Property which will cost more than $10,000 but less than $50,000 to repair, the
Borrower is authorized to make proof of loss and adjust and compromise the
claim without the prior consent of Lender, and Lender shall hold the applicable
insurance proceeds to be used to reimburse Borrower for the cost of Restoration
of the Mortgaged Property and shall not apply such proceeds to the payment of
sums due under this Instrument.





(h) Lender will have the right to exercise its option to apply insurance proceeds to the
payment of the Indebtedness only if Lender determines that at least one of the following conditions
is met:




	 	(i)	 	an Event of Default (or any event, which, with the giving of
Notice or the passage of time, or both, would constitute an Event of
Default) has occurred and is continuing;






	 	(ii)	 	Lender determines, in its discretion, that there will not be
sufficient funds from insurance proceeds, anticipated contributions of Borrower
of its own funds or other sources acceptable to Lender to complete the
Restoration;






	 	(iii)	 	Lender determines, in its discretion, that the rental income
from the Mortgaged Property after completion of the Restoration will not be
sufficient to meet all operating costs and other expenses, Imposition Deposits,
deposits to reserves and loan repayment obligations relating to the Mortgaged
Property;






	 	(iv)	 	Lender determines, in its discretion, that the Restoration will
not be completed at least one year before the Maturity Date (or six months
before the Maturity Date if Lender determines in its discretion that re-leasing
of the Mortgaged Property will be completed within such six-month period); or






	 	(v)	 	Lender determines that the Restoration will not be completed
within one year after the date of the loss or casualty.





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



(j) Unless Lender otherwise agrees in writing, any application of any insurance proceeds to
the Indebtedness shall not extend or postpone the due date of any monthly installments referred to
in the Note, Section 7 of this Instrument or any Collateral Agreement, or change the amount of such
installments.



(k) Borrower agrees to execute such further evidence of assignment of any insurance proceeds
as Lender may require.



20. CONDEMNATION.



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



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



21. TRANSFERS OF THE MORTGAGED PROPERTY OR INTERESTS IN BORROWER. [RIGHT TO UNLIMITED
TRANSFERS — WITH LENDER APPROVAL].



(a) "Transfer” means




	 	(i)	 	a sale, assignment, transfer or other disposition (whether
voluntary, involuntary or by operation of law);






	 	(ii)	 	the granting, creating or attachment of a lien, encumbrance or
security interest (whether voluntary, involuntary or by operation of law);






	 	(iii)	 	the issuance or other creation of an ownership interest in a
legal entity, including a partnership interest, interest in a limited liability
company or corporate stock;






	 	(iv)	 	the withdrawal, retirement, removal or involuntary resignation
of a partner in a partnership or a member or manager in a limited liability
company; or






	 	(v)	 	the merger, dissolution, liquidation, or consolidation of a
legal entity or the reconstitution of one type of legal entity into another
type of legal entity.





For purposes of defining the term “Transfer,” the term “partnership” shall mean a general
partnership, a limited partnership, a joint venture and a limited liability partnership, and the
term “partner” shall mean a general partner, a limited partner and a joint venturer.



(b) “Transfer” does not include




	 	(i)	 	a conveyance of the Mortgaged Property at a judicial or
non-judicial foreclosure sale under this Instrument,






	 	(ii)	 	the Mortgaged Property becoming part of a bankruptcy estate by
operation of law under the United States Bankruptcy Code, or






	 	(iii)	 	a lien against the Mortgaged Property for local taxes and/or
assessments not then due and payable.





(c) The occurrence of any of the following Transfers shall not constitute an Event of Default
under this Instrument, notwithstanding any provision of Section 21(e) to the contrary:




	 	(i)	 	a Transfer to which Lender has consented;






	 	(ii)	 	a Transfer that occurs in accordance with Section 21(d);






	 	(iii)	 	the grant of a leasehold interest in an individual dwelling
unit for a term of two years or less not containing an option to purchase;






	 	(iv)	 	a Transfer of obsolete or worn out Personalty or Fixtures that
are contemporaneously replaced by items of equal or better function and
quality, which are free of liens, encumbrances and security interests other
than those created by the Loan Documents or consented to by Lender;






	 	(v)	 	the creation of a mechanic’s, materialman’s, or judgment lien
against the Mortgaged Property, which is released of record or otherwise
remedied to Lender’s satisfaction within 60 days of the date of creation;






	 	(vi)	 	if Borrower is a housing cooperative, any Transfer of the
            shares in the housing cooperative or any assignment of the occupancy agreements
or leases relating thereto by tenant shareholders of the housing cooperative;
and






	 	(vii)	 	any Transfer of an interest in Borrower or any interest in a
Controlling Entity (which, if such Controlling Entity were Borrower, would
result in an Event of Default) listed in (A) through (F) below (a “Preapproved
Transfer”), under the terms and conditions listed as items (1) through (7)
below:






	 	(A)	 	a sale or transfer to one or more of the
transferor’s immediate family members; or






	 	(B)	 	a sale or transfer to any trust having as its
sole beneficiaries the transferor and/or one or more of the
transferor’s immediate family members; or






	 	(C)	 	a sale or transfer from a trust to any one or
more of its beneficiaries who are immediate family members of the
transferor ; or






	 	(D)	 	the substitution or replacement of the trustee
of any trust with a trustee who is an immediate family member of the
transferor; or






	 	(E)	 	a sale or transfer to an entity owned and
controlled by the transferor or the transferor’s immediate family
members; or






	 	(F)	 	a sale or transfer to an individual or entity
that has an existing interest in the Borrower or in a Controlling
Entity.






	 	(1)	 	Borrower shall provide Lender
with prior written Notice of the proposed Preapproved Transfer,
which Notice must be accompanied by a non-refundable review fee
in the amount of $3,000.00.






	 	(2)	 	For the purposes of these
Preapproved Transfers, a transferor’s immediate family members
will be deemed to include a spouse, parent, child or grandchild
of such transferor.






	 	(3)	 	Either directly or indirectly,
[See Exhibit B] shall retain at all times a managing interest in
the Borrower.






	 	(4)	 	At the time of the proposed
Preapproved Transfer, no Event of Default shall have occurred
and be continuing and no event or condition shall have occurred
and be continuing that, with the giving of Notice or the passage
of time, or both, would become an Event of Default.






	 	(5)	 	Lender shall be entitled to
collect all costs, including the cost of all title searches,
title insurance and recording costs, and all Attorneys’ Fees and
Costs.






	 	(6)	 	Lender shall not be entitled to
collect a transfer fee as a result of these Preapproved
Transfers.






	 	(7)	 	In the event of a Transfer
prohibited by or requiring Lender’s approval under this
Section 21, this Section (c)(vii) 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 consent.





(d) The occurrence of any of the following Transfers shall not constitute an Event of Default
under this Instrument, provided that Borrower has notified Lender in writing within 30 days
following the occurrence of any of the following, and such Transfer does not constitute an Event of
Default under any other Section of this Instrument:




	 	(i)	 	a change of the Borrower’s name, provided that UCC financing
statements and/or amendments sufficient to continue the perfection of Lender’s
security interest have been properly filed and copies have been delivered to
Lender;






	 	(ii)	 	a change of the form of the Borrower not involving a transfer
of the Borrower’s assets and not resulting in any change in liability of any
Initial Owner, provided that UCC financing statements and/or amendments
sufficient to continue the perfection of Lender’s security interest have been
properly filed and copies have been delivered to Lender;






	 	(iii)	 	the merger of the Borrower with another entity when the
Borrower is the surviving entity;






	 	(iv)	 	a Transfer that occurs by devise, descent, or by operation of
law upon the death of a natural person; and






	 	(v)	 	the grant of an easement, if before the grant Lender determines
that the easement will not materially affect the operation or value of the
Mortgaged Property or Lender’s interest in the Mortgaged Property, and Borrower
pays to Lender, upon demand, all costs and expenses, including Attorneys’ Fees
and Costs, incurred by Lender in connection with reviewing Borrower’s request.





(e) The occurrence of any of the following Transfers shall constitute an Event of Default
under this Instrument:




	 	(i)	 	a Transfer of all or any part of the Mortgaged Property or any
interest in the Mortgaged Property;






	 	(ii)	 	if Borrower is a limited partnership, a Transfer of (A) any
general partnership interest, or (B) limited partnership interests in Borrower
that would cause the Initial Owners of Borrower to own less than a Controlling
Interest of all limited partnership interests in Borrower;






	 	(iii)	 	if Borrower is a general partnership or a joint venture, a
Transfer of any general partnership or joint venture interest in Borrower;






	 	(iv)	 	if Borrower is a limited liability company, (A) a Transfer of
any membership interest in Borrower which would cause the Initial Owners to own
less than a Controlling Interest of all the membership interests in Borrower,
(B) a Transfer of any membership or other interest of a manager in Borrower
that results in a change of manager or (C) a change in a nonmember manager;






	 	(v)	 	if Borrower is a corporation (A) the Transfer of any voting
stock in Borrower which would cause the Initial Owners to own less than a
Controlling Interest of any class of voting stock in Borrower or (B) if the
outstanding voting stock in Borrower is held by 100 or more shareholders, one
or more Transfers by a single transferor within a 12-month period affecting an
aggregate of 5 percent or more of that stock;






	 	(vi)	 	if Borrower is a trust, (A) a Transfer of any beneficial
interest in Borrower which would cause the Initial Owners to own less than a
Controlling Interest of all the beneficial interests in Borrower, (B) the
termination or revocation of the trust, or (C) the removal, appointment or
substitution of a trustee of Borrower;






	 	(vii)	 	if Borrower is a limited liability partnership, (A) a Transfer
of any partnership interest in Borrower which would cause the Initial Owners to
own less than a Controlling Interest of all partnership interests in Borrower,
or (B) a transfer of any partnership or other interest of a managing partner in
Borrower that results in a change of manager; and






	 	(viii)	 	a Transfer of any interest in a Controlling Entity which, if such Controlling
Entity were Borrower, would result in an Event of Default under any of
Sections 21(e)(i) through (vii) above.





Lender shall not be required to demonstrate any actual impairment of its security or any increased
risk of default in order to exercise any of its remedies with respect to an Event of Default under
this Section 21.



(f) Lender shall consent, without any adjustment to the rate at which the Indebtedness secured
by this Instrument bears interest or to any other economic terms of the Indebtedness set forth in
the Note, to a Transfer that would otherwise violate this Section 21 if, prior to the Transfer,
Borrower has satisfied each of the following requirements:




	 	(i)	 	the submission to Lender of all information required by Lender
to make the determination required by this Section 21(f);






	 	(ii)	 	the absence of any Event of Default;






	 	(iii)	 	the transferee meets all of the eligibility, credit,
management and other standards (including but not limited to any standards with
respect to previous relationships between Lender and the transferee)
customarily applied by Lender at the time of the proposed Transfer to the
approval of borrowers in connection with the origination or purchase of similar
mortgages on multifamily properties;






	 	(iv)	 	the transferee’s organization, credit and experience in the
management of similar properties are deemed by the Lender, in its discretion,
to be appropriate to the overall structure and documentation of the existing
financing;






	 	(v)	 	the Mortgaged Property, at the time of the proposed Transfer,
meets all standards as to its physical condition, occupancy, net operating
income and the collection of reserves that are customarily applied by Lender at
the time of the proposed Transfer to the approval of properties in connection
with the origination or purchase of similar mortgages on multifamily
properties;






	 	(vi)	 	in the case of a Transfer of all or any part of the Mortgaged
Property, (A) the execution by the transferee of Lender’s then-standard
assumption agreement that, among other things, requires the transferee to
perform all obligations of Borrower set forth in the Note, this Instrument and
any other Loan Documents, and may require that the transferee comply with any
provisions of this Instrument or any other Loan Document which previously may
have been waived or modified by Lender, (B) if Lender requires, the transferee
causes one or more individuals or entities acceptable to Lender to execute and
deliver to Lender a guaranty in a form acceptable to Lender, and (C) the
transferee executes such additional Collateral Agreements as Lender may
require;






	 	(vii)	 	in the case of a Transfer of any interest in a Controlling
Entity, if a guaranty has been executed and delivered in connection with the
Note, this Instrument or any of the other Loan Documents, the Borrower causes
one or more individuals or entities acceptable to Lender to execute and deliver
to Lender a guaranty in a form acceptable to Lender; and






	 	(viii)	 	Lender’s receipt of all of the following:






	 	(A)	 	a review fee in the amount of $3,000.00;






	 	(B)	 	a transfer fee in an amount equal to 1 percent
of the unpaid principal balance of the Indebtedness immediately before
the applicable Transfer; and






	 	(C)	 	the amount of Lender’s out-of-pocket costs
(including reasonable Attorneys’ Fees and Costs) incurred in reviewing
the Transfer request.





22. EVENTS OF DEFAULT. The occurrence of any one or more of the following shall constitute an
Event of Default under this Instrument:



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



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



(c) any failure by Borrower to comply with the provisions of Section 33;



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



(e) any failure to comply with the provisions of Section 20;



(f) any Event of Default under Section 21;



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



(h) any failure by Borrower to perform any of its obligations under this Instrument (other
than those specified in Sections 22(a) through (g)), as and when required, which continues for a
period of 30 days after Notice of such failure by Lender to Borrower. However, if Borrower’s
failure to perform its obligations as described in this Section 22(h) is of the nature that it
cannot be cured within the 30 day grace period but reasonably could be cured within 90 days, then
Borrower shall have additional time as determined by Lender in its discretion, not to exceed an
additional 60 days, in which to cure such default, provided that Borrower has diligently commenced
to cure such default during the 30-day grace period and diligently pursues the cure of such
default. However, no such Notice or grace periods shall apply in the case of any such failure
which could, in Lender’s judgment, absent immediate exercise by Lender of a right or remedy under
this Instrument, result in harm to Lender, impairment of the Note or this Instrument or any other
security given under any other Loan Document;



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



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



(k) Borrower voluntarily files for bankruptcy protection under the United States Bankruptcy
Code or voluntarily becomes subject to any reorganization, receivership, insolvency proceeding or
other similar proceeding pursuant to any other federal or state law affecting debtor and creditor
rights, or an involuntary case is commenced against Borrower by any creditor (other than Lender) of
Borrower pursuant to the United States Bankruptcy Code or other federal or state law affecting
debtor and creditor rights and is not dismissed or discharged within 90 days after filing; and



(l) any of Borrower’s representations and warranties in this Instrument is false or misleading
in any material respect.



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



24. FORBEARANCE.



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



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



25. LOAN CHARGES. If any applicable law limiting the amount of interest or other charges
permitted to be collected from Borrower is interpreted so that any charge provided for in any Loan
Document, whether considered separately or together with other charges levied in connection with
any other Loan Document, violates that law, and Borrower is entitled to the benefit of that law,
that charge is hereby reduced to the extent necessary to eliminate that violation. The amounts, if
any, previously paid to Lender in excess of the permitted amounts shall be applied by Lender to
reduce the principal of the Indebtedness. For the purpose of determining whether any applicable
law limiting the amount of interest or other charges permitted to be collected from Borrower has
been violated, all Indebtedness which constitutes interest, as well as all other charges levied in
connection with the Indebtedness which constitute interest, shall be deemed to be allocated and
spread over the stated term of the Note. Unless otherwise required by applicable law, such
allocation and spreading shall be effected in such a manner that the rate of interest so computed
is uniform throughout the stated term of the Note.



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



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



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



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



30. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.



(a) This Instrument, and any Loan Document which does not itself expressly identify the law
that is to apply to it, shall be governed by the laws of the jurisdiction in which the Land is
located (the “Property Jurisdiction”).



(b) Borrower agrees that any controversy arising under or in relation to the Note, this
Instrument, or any other Loan Document may be litigated in the Property Jurisdiction. The state
and federal courts and authorities with jurisdiction in the Property Jurisdiction shall have
jurisdiction over all controversies that shall arise under or in relation to the Note, any security
for the Indebtedness, or any other Loan Document. Borrower irrevocably consents to service,
jurisdiction, and venue of such courts for any such litigation and waives any other venue to which
it might be entitled by virtue of domicile, habitual residence or otherwise. However, nothing in
this Section 30 is intended to limit Lender’s right to bring any suit, action or proceeding
relating to matters under this Instrument in any court of any other jurisdiction.



31. NOTICE.



(a) All Notices, demands and other communications (“Notice”) under or concerning this
Instrument shall be in writing. Each Notice shall be addressed to the intended recipient at its
address set forth in this Instrument, and shall be deemed given on the earliest to occur of (i) the
date when the Notice is received by the addressee; (ii) the first Business Day after the Notice is
delivered to a recognized overnight courier service, with arrangements made for payment of charges
for next Business Day delivery; or (iii) the third Business Day after the Notice is deposited in
the United States mail with postage prepaid, certified mail, return receipt requested.



(b) Any party to this Instrument may change the address to which Notices intended for it are
to be directed by means of Notice given to the other party in accordance with this Section 31.
Each party agrees that it will not refuse or reject delivery of any Notice given in accordance with
this Section 31, that it will acknowledge, in writing, the receipt of any Notice upon request by
the other party and that any Notice rejected or refused by it shall be deemed for purposes of this
Section 31 to have been received by the rejecting party on the date so refused or rejected, as
conclusively established by the records of the U.S. Postal Service or the courier service.



(c) Any Notice under the Note and any other Loan Document that does not specify how Notices
are to be given shall be given in accordance with this Section 31.



32. SALE OF NOTE; CHANGE IN SERVICER; LOAN SERVICING. The Note or a partial interest in the
Note (together with this Instrument and the other Loan Documents) may be sold one or more times
without prior Notice to Borrower. A sale may result in a change of the Loan Servicer. There also
may be one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a
change of the Loan Servicer, Borrower will be given Notice of the change. All actions regarding the
servicing of the loan evidenced by the Note, including the collection of payments, the giving and
receipt of Notice, inspections of the Mortgaged Property, inspections of books and records, and the
granting of consents and approvals, may be taken by the Loan Servicer unless Borrower receives
Notice to the contrary. If Borrower receives conflicting Notices regarding the identity of the
Loan Servicer or any other subject, any such Notice from Lender shall govern.



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



34. SUCCESSORS AND ASSIGNS BOUND. This Instrument shall bind, and the rights granted by this
Instrument shall inure to, the respective successors and assigns of Lender and Borrower. However,
a Transfer not permitted by Section 21 shall be an Event of Default.



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



36. RELATIONSHIP OF PARTIES; NO THIRD PARTY BENEFICIARY.



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



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



37. SEVERABILITY; AMENDMENTS. The invalidity or unenforceability of any provision of this
Instrument shall not affect the validity or enforceability of any other provision, and all other
provisions shall remain in full force and effect. This Instrument contains the entire agreement
among the parties as to the rights granted and the obligations assumed in this Instrument. This
Instrument may not be amended or modified except by a writing signed by the party against whom
enforcement is sought; provided, however, that in the event of a Transfer prohibited by or
requiring Lender’s approval under Section 21, any or some or all of the Modifications to Instrument
set forth in Exhibit B (if any) may be modified or rendered void by Lender at Lender’s option by
Notice to Borrower and the transferee(s).



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



39. DISCLOSURE OF INFORMATION. Lender may furnish information regarding Borrower or the
Mortgaged Property to third parties with an existing or prospective interest in the servicing,
enforcement, evaluation, performance, purchase or securitization of the Indebtedness, including but
not limited to trustees, master servicers, special servicers, rating agencies, and organizations
maintaining databases on the underwriting and performance of multifamily mortgage loans. Borrower
irrevocably waives any and all rights it may have under applicable law to prohibit such disclosure,
including but not limited to any right of privacy.



40. NO CHANGE IN FACTS OR CIRCUMSTANCES. Borrower warrants that (a) all information in the
application for the loan submitted to Lender (the “Loan Application”) and in all financial
statements, rent schedules, reports, certificates and other documents submitted in connection with
the Loan Application are complete and accurate in all material respects; and (b) there has been no
material adverse change in any fact or circumstance that would make any such information incomplete
or inaccurate.



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



42. ADJUSTABLE RATE MORTGAGE — THIRD PARTY CAP AGREEMENT “CAP COLLATERAL.”



(a) If the Note provides for interest to accrue at an adjustable or variable interest rate
(other than during the “Extension Period,” as defined in the Note, if applicable), then the
definition of “Mortgaged Property” shall include the “Cap Collateral.” The “Cap Collateral” shall
mean




	 	(i)	 	any interest rate cap agreement, interest rate swap agreement,
or other interest rate-hedging contract or agreement obtained by Borrower as a
requirement of any Loan Document or as a condition of Lender’s making the Loan
(a “Cap Agreement”);






	 	(ii)	 	any and all moneys (collectively, “Cap Payments”) payable
pursuant to any Cap Agreement by the interest rate cap provider or other
counterparty to a Cap Agreement or any guarantor of the obligations of any such
cap provider or counterparty (a “Cap Provider”);






	 	(iii)	 	all rights of Borrower under any Cap Agreement and all rights
of Borrower to all Cap Payments, including contract rights and general
intangibles, whether existing now or arising after the date of this Instrument;






	 	(iv)	 	all rights, liens and security interests or guaranties granted
by a Cap Provider or any other person to secure or guaranty payment of any Cap
Payment whether existing now or granted after the date of this Instrument;






	 	(v)	 	all documents, writings, books, files, records and other
documents arising from or relating to any of the foregoing, whether existing
now or created after the date of this Instrument; and






	 	(vi)	 	all cash and non-cash proceeds and products of (ii) – (v)
above.





(b) As additional security for Borrower’s obligation under the Loan Documents, Borrower hereby
assigns and pledges to Lender all of Borrower’s right, title and interest in and to the Cap
Collateral. Borrower has instructed and will instruct each Cap Provider and any guarantor of a Cap
Provider’s obligations to make Cap Payments directly to Lender or to Loan Servicer on behalf of
Lender.



(c) So long as there is no Event of Default, Lender or Loan Servicer will remit to Borrower
each Cap Payment received by Lender or Loan Servicer with respect to any month for which Borrower
has paid in full the monthly installment of principal and interest or interest only, as applicable,
due under the Note. Alternatively, at Lender’s option so long as there is no Event of Default,
Lender may apply a Cap Payment received by Lender or Loan Servicer with respect to any month to the
applicable monthly payment of accrued interest due under the Note if Borrower has paid in full the
remaining portion of such monthly payment of principal and interest or interest only, as
applicable.



(d) Following an Event of Default, in addition to any other rights and remedies Lender may
have, Lender may retain any Cap Payments and apply them to the Indebtedness in such order and
amounts as Lender determines. Neither the existence of a Cap Agreement nor anything in this
Instrument shall relieve Borrower of its primary obligation to timely pay in full all amounts due
under the Note and otherwise due on account of the Indebtedness.



(e) If the Note does not provide for interest to accrue at an adjustable or variable interest
rate (other than during the Extension Period) then this Section 42 shall be of no force or effect.



43. ACCELERATION; REMEDIES. At any time during the existence of an Event of Default, Lender,
at Lender’s option, may declare the Indebtedness to be immediately due and payable without further
demand, and may invoke the power of sale and any other remedies permitted by Virginia law or
provided in this Instrument or in any other Loan Document. Borrower acknowledges that Lender may
exercise the power of sale granted by this Instrument without prior judicial hearing to the extent
allowed by Virginia law. Borrower has the right to bring an action to assert that an Event of
Default does not exist or to raise any other defense Borrower may have to acceleration and sale.
Lender shall be entitled to collect all costs and expenses incurred in pursuing such remedies,
including fees and out-of-pocket costs of attorneys, including Lender’s in-house counsel, and costs
of documentary evidence, abstracts and title reports.



If Lender invokes the power of sale, Lender or Trustee shall deliver a copy of a notice of
sale to Borrower in the manner prescribed by Virginia law. Trustee shall give public notice of the
sale in the manner prescribed by Virginia law and shall sell the Mortgaged Property in accordance
with Virginia law. Trustee, without demand on Borrower, shall sell the Mortgaged Property at
public auction to the highest bidder at the time and place and under the terms designated in the
notice of sale in one or more parcels and in such order as Trustee may determine. Trustee may
postpone the sale of all or any part of the Mortgaged Property in accordance with Virginia law.
Lender or Lender’s designee may purchase the Mortgaged Property at any sale.



Trustee shall deliver to the purchaser at the sale, within a reasonable time after the sale, a
deed conveying the Mortgaged Property so sold with special warranty of title. The recitals in
Trustee’s deed shall be prima facie evidence of the truth of the statements made in the recitals.
Trustee shall apply the proceeds of the sale in the following order unless Virginia law recites a
different order of distribution: (a) to all costs and expenses of the sale, including Trustee’s
fees in an amount prescribed by Virginia law, or if Trustee’s fees are not so prescribed, in an
amount equal to 5 percent of the gross sale price, attorneys’ fees and costs of title evidence; (b)
to the discharge of all Taxes, if any, as provided by Virginia law; (c) to the Indebtedness in such
order as Lender, in Lender’s discretion, directs; and (d) the excess, if any, to the person or
persons legally entitled to the excess, including, if any, the holders of liens inferior to this
Instrument in the order of their priority, provided that Trustee has actual notice of such liens.
Trustee shall not be required to take possession of the Mortgaged Property before the sale or to
deliver possession of the Mortgaged Property to the purchaser at the sale.



44. RELEASE. Upon payment of the Indebtedness, Lender shall request Trustee to release this
Instrument and shall deliver the Note to Trustee. Trustee shall release this Instrument. Borrower
shall pay Trustee’s reasonable costs incurred in releasing this Instrument.



45. SUBSTITUTE TRUSTEE. Lender may from time to time, in Lender’s discretion, remove Trustee
and appoint a successor trustee to any Trustee appointed under this Instrument. Without conveyance
of the Mortgaged Property, the successor trustee shall succeed to all the title, power and duties
conferred upon the predecessor Trustee and by applicable law.



46. STATUTORY PROVISIONS. The following provisions of Section 55-60, Code of Virginia (1950),
as amended, are made applicable to this Instrument:




Exemptions waived


Subject to all upon default


Renewal or extension permitted


Substitution of trustee permitted


Any trustee may act



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



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



	 	 	 	 	 
	X

	 	Exhibit A
	 	Description of the Land (required)
	 

	 	

	 	

	X

	 	Exhibit B
	 	Modifications to Instrument
	 

	 	

	 	







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



2




	 	 	 	G&E
APARTMENT REIT THE HEIGHTS AT OLDE TOWNE, LLC, a
Delaware limited liability company






By: /s/ Gus G. Remppies (SEAL)




	 	 	Gus G. Remppies






Authorized Signatory



STATE OF Virgina



CITY OF Richmond, to-wit:



The foregoing instrument was acknowledged before me in the above-stated jurisdiction this 20th
day of December, 2007 by Gus G. Remppies who is the Authorized Signatory of G&E Apartment REIT The
Heights at Olde Towne, LLC, a Delaware limited liability company, for and on behalf of the limited



liability company.




/s/ Lois Eschinger Sisk



Notary Public




My commission expires: [SEAL] 8/31/11




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