PLEDGE AND SECURITY AGREEMENT
(Xxxxxxxxxxx Apartments)
THIS PLEDGE AND SECURITY AGREEMENT (this "AGREEMENT") is made as of
the 18th day of April 1997, by AIMCO PROPERTIES, L.P., a Delaware limited
partnership ("PLEDGOR"), with an address at 0000 Xxxxx Xxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx, Xxxxxxxx 00000, in favor of GMAC COMMERCIAL MORTGAGE CORPORATION,
a California corporation ("LENDER"), with an address at 000 Xxxxxxx Xxxx, X.X.
Xxx 0000, Xxxxxxx, Xxxxxxxxxxxx 00000-0000.
BACKGROUND:
A. Pledgor is the holder of a certain second amended and restated
revolving promissory note (the "NOTE") dated April 18, 1997, by Xxxxxxxxxxx
Partners, Ltd., a Texas limited partnership (the "BORROWER"), for the benefit of
Pledgor. Borrower is owner of certain property more fully described in EXHIBIT
A, attached hereto, and the improvements located thereon (the "PROPERTY").
B. Lender has agreed to make a loan to the Borrower in the principal
amount of $3,577,000.00 (the "LOAN"). The Loan will be evidenced by a
Multifamily Note from Borrower to Lender in the principal amount of
$3,577,000.00 and will be secured by, among other things, this Agreement.
C. In connection with the Loan, Pledgor has executed a Subordination
Agreement (the "Subordination Agreement") of even date herewith, in favor of
Lender and subordinating the loan evidenced by the Note to the Loan.
D. Pledgor as an affiliate of the Borrower, a key principal under
that certain Exception to Non-Recourse Guaranty of even date, and as the holder
of the Note will benefit from the making of the Loan to the Borrower. Pledgor
has agreed to pledge the Note and Lender has required such pledge by Pledgor as
a condition to its making of the Loan and to secure Pledgor's performance under
the Subordination Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
1. ASSIGNMENT AND PLEDGE. Pledgor hereby pledges and grants a
security interest in, and assigns, delivers and grants to Lender all of
Pledgor's right, title and interest in and to the Note. This assignment is made
as security for the full payment and performance by Pledgor of all of its
obligations under the Subordination Agreement.
2. PERFECTION.
(a) In order to effectuate the foregoing pledge, Pledgor has endorsed
and delivered the Note to Lender.
(b) Lender, as the payee by endorsement of the Note, shall have all
of Pledgor's rights in connection with the Note including, without limitation,
upon the occurrence of a default in the payment of the Note after the expiration
of any applicable notice and grace period set forth therein, the right to
designate further payee by endorsement of the Note.
3. PLEDGOR'S RIGHTS AND COVENANTS.
(a) Except as otherwise provided in subparagraph 3(b) and in
paragraph 7 hereof, Pledgor shall have a license to collect all regular monthly
installments of interest and/or principal due to Pledgor under and with respect
to the Note, and to retain, use and enjoy the same. Pledgor and Lender
acknowledge and agree that the endorsement of the Note is being undertaken
solely in furtherance of the pledge, assignment and granting of a security
interest in the Note, and that, for all other purposes, including, without
limitation, federal income tax purposes, Pledgor shall be the owner of the Note.
(b) Notwithstanding the foregoing, any principal payment other than a
regularly scheduled payment made in accordance with the existing amortization
schedule, if any, under the Note shall be delivered to Lender, to be applied, if
Lender requires, against the obligations of Borrower under the Loan Documents,
in such order as Lender may determine, in its sole and absolute discretion.
(c) Pledgor shall:
(i) fulfill or perform every condition and covenant, if any, of
the Note to be fulfilled or performed by the holder thereof;
(ii) not modify or amend the Note, or permit the Note to be
modified or amended, without Lender's prior written consent;
(iii) to the extent permitted by, and subject to the provisions of
the Subordination Agreement, enforce all material covenants and conditions
of the Note to be performed or observed by the Borrower, and not forgive
any indebtedness evidenced by the Note; provided, that Pledgor shall seek
the prior written approval of Lender before undertaking any such
enforcement, which approval may be withheld by Lender in its sole and
absolute discretion; and
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(iv) promptly notify Lender of any default under the Note, and take
such action with respect thereto as Lender shall reasonably direct.
(d) Lender shall not be obligated to perform or discharge any
obligation under the Note, or have any obligation to any of the partners of
Borrower. To that end, Pledgor hereby agrees to indemnify, defend with counsel
reasonably acceptable to Lender and hold Lender and its officers, directors,
agents and employees harmless from and against any and all claims, liabilities,
costs (including, without limitation, reasonable legal fees and court costs),
losses or damages that any of them may incur under or by reason of this
Agreement or any alleged obligation or undertaking on the part of Lender to
perform or discharge any of the terms of the Note.
4. ACCOUNTING. Pledgor shall deliver to Lender within ten days after the
end of each month, a certified statement specifying the payments derived or
received from the Note for the preceding month.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS. Pledgor represents,
warrants and covenants that:
(a) Pledgor has an assignable interest in the Note, free and clear of
all liens and encumbrances and claims of all other parties, and the Note is not
the subject of any present suit, action or other proceeding, or to the best of
Pledgor's knowledge, any threatened suit, action or proceeding, and Pledgor
knows of no grounds for the institution of any such proceeding;
(b) This Agreement has been duly authorized, executed and delivered
by Pledgor and will not conflict with or constitute a breach of or a default
under any agreement, indenture or instrument to which Pledgor is a party or by
which Pledgor or any of Pledgor's properties are bound;
(c) Pledgor has not made any prior pledge or assignment of the Note;
(d) Pledgor shall not make any other assignment or pledge of the
Note;
(e) Pledgor shall defend, at its own expense, Lender's right, title
and interest in and to the Note against the claims of any person, firm,
corporation or other entity;
(f) The outstanding principal balance under the Note is as set forth
in EXHIBIT B, attached hereto;
(g) There is no default existing under the Note, or event which, with
the passage of time or the giving of notice, or both, would become a default;
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(h) The copy of the Note previously delivered to Lender by Pledgor is
true, complete and correct and there are no other agreements or understandings
between the obligors thereunder and Pledgor relating to the subject matter
thereof; and
(i) The Note is the legal, valid and binding obligations of the
parties thereto, enforceable in accordance with its terms.
6. COVENANTS OF LENDER. Lender covenants that, upon timely performance
by Pledgor of all obligations arising under the Subordination Agreement in
accordance with the terms thereof, and payment in full of all sums due on the
Loan, Lender shall return to Pledgor the Note endorsed to Pledgor without
recourse or warranty and, at Pledgor's cost, shall execute, and deliver to
Pledgor such documents, instruments and agreements necessary to terminate this
Agreement.
7. LENDER'S RIGHTS AFTER DEFAULT. After the failure by Pledgor to
perform any of its obligations under the Subordination Agreement and failure by
Pledgor to correct, rectify and otherwise cure such failure of performance to
the satisfaction of Lender within ten (10) days of notice of such failure to
perform from Lender (an "Event of Default"), Lender, at its option, either in
person or by agent, may do any one or more of the following:
(a) Give written notice to Borrower authorizing and directing
Borrower to pay all interest and principal under the Note directly to Lender,
and to the extent the Note is payable upon demand, make demand for, and collect,
payment of the principal balance and all unpaid interest under such Note;
(b) Xxx for or otherwise collect and receive all proceeds of the
Note, including those past due and unpaid;
(c) Apply proceeds of the Note to any costs, expenses, damages or
other amounts due Lender by Pledgor, in connection with this Pledge, the
Subordination Agreement or otherwise in such amounts and in such order as
determined by Lender, in its sole and absolute discretion;
(d) To the extent permitted by law, take any other actions or
exercise any other rights and powers of a secured party under the Uniform
Commercial Code (the "UCC") or otherwise dispose of any or all of the Note in
any manner permitted under the UCC after default by a debtor under any other
applicable laws;
(e) Record in the appropriate public offices this Agreement; and
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(f) To the extent permitted by law, do any other acts that Lender
deems proper to protect its rights hereunder or under the Note.
8. WARRANT OF ATTORNEY. Pledgor hereby irrevocably constitutes and
appoints Lender its true and lawful attorney, with full power of substitution,
at the sole cost and expense of Pledgor, after the occurrence of an Event of
Default, to collect and receive all earnings, proceeds, collections and payments
with respect to the Note, and, whether or not an Event of Default has occurred,
to execute on behalf of Pledgor any documents necessary to perfect and maintain
Lender's interest in the Note or to enforce collection of the earnings,
proceeds, collections and payments due under the Note, either in its own name or
in the name of Pledgor, including but not limited to prosecuting, defending,
compromising or releasing any action relating thereto. Lender shall not be
responsible to Pledgor for any actions taken or omitted to be taken by Lender,
except for its gross negligence or willful misconduct. All power conferred upon
Lender by this Agreement is coupled with an interest and shall be irrevocable.
9. SUBORDINATION. Pledgor hereby acknowledges that the lien, operation
and payment of the Note, and all documents executed and delivered in connection
therewith, are unconditionally subordinated to the lien, operation and payment
of all documents executed and delivered by any of the Obligors to Lender
(collectively, the "GMAC DOCUMENTS"), by the terms of that certain Subordination
Agreement of even date by and among Pledgor, Lender and Borrower. This
paragraph 9 and the requirement that Pledgor obtain Lender's approval before
enforcing the Note shall survive the repayment of the Loan and any reconveyance
pursuant to paragraph 6 hereof.
10. MISCELLANEOUS.
(a) Pledgor will pay all costs of acknowledging, recording and filing
this Agreement and any other documents Lender may reasonably deem necessary in
connection with this Agreement.
(b) If any provision of this Agreement is held to be invalid, the
remainder of this Agreement and its application shall not be affected.
(c) This Agreement shall inure to the benefit of Lender and its
successors and assigns and shall be binding upon Pledgor and its successors and
assigns.
(d) This Agreement shall be construed and enforced in accordance with
the laws of the jurisdiction in which the Property is located.
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(e) All notices, directions, certificates or communications hereunder
shall be given by certified or registered mail, return receipt requested, by
hand delivery or by nationally recognized overnight courier addressed to the
appropriate notice address set forth in the heading to this Agreement. Any of
the parties hereto may, by such notice described above, designate any further or
different address to which subsequent notices, directions, certificates or other
communications shall be sent without any requirement of execution of any
amendment to this Agreement. Any such notice, certificate, direction or
communication shall be deemed to have been given (a) three (3) business days
after mailing, if delivered by registered or certified mail, or (b) one business
day after delivery, fee prepaid, to a national overnight delivery service, or
(c) when delivered, if hand delivered with proof of delivery thereof.
(f) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
(g) The headings set forth before the text of each paragraph
contained in this Agreement are for convenience only, and shall not affect the
meaning or interpretation of this Agreement in any way.
PLEDGOR:
AIMCO PROPERTIES, L.P., a Delaware
limited partnership
By: AIMCO-GP, INC., a Delaware
corporation, its General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
Vice President
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LENDER:
GMAC COMMERCIAL MORTGAGE CORPORATION,
a California corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
Vice President
Exhibits
--------
A - Legal Description
B - Outstanding Principal Balance
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EXHIBIT A
Cooperfield
DESCRIPTION OF A TRACT OR PARCEL BEING 7.4469 ACRES OR 324.386 SQUARE FOOT TRACT
OF LAND SITUATED IN THE W.C.R.R. CO. SURVEY ABSTRACT 939 AND THE X. X. XXXX
SURVEY ABSTRACT 1150, BEING THE SAME CALLED XXXXXXXXXXX APARTMENTS RECORDED
IN FILM CODE NO. 372029 OF THE XXXXXX COUNTY MAP RECORDS ALSO BEING THE SAME
TRACT CALLED PALAIS DE VILLE 7.4429 ACRES APARTMENT SUBDIVISION RECORDED IN
VOLUME 321. PAGE 122 OF THE XXXXXX COUNTY MAP RECORDS, BEING OUT OF UNRESTRICTED
RESERVE "I" OF EASTON COMMONS SECTION TWO RECORDED IN VOLUME 310, PAGE 80 OF THE
XXXXXX COUNTY MAP RECORDS, XXXXXX COUNTY, TEXAS, BEING MORE PARTICULARLY
DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT A 3/4 INCH IRON PIPE FOUND MARKING THE SOUTHWEST END OF A 25 FOOT
CUTBACK CURVE AT THE INTERSECTION OF THE SOUTHEAST RIGHT OF WAY LINE OF EASTON
COMMONS DRIVE (100 FEET WIDE AT THIS POINT) AND THE SOUTHWEST RIGHT OF WAY LINE
OF SUNBURY LANE (60 FOOT WIDE);
THENCE ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF 25.00 FEET, A DELTA OF 88
DEGREES 57 MINUTES 30 SECONDS, AND AN ARC LENGTH OF 38.82 FEET TO A 3/4 INCH
IRON PIPE FOUND MARKING THE POINT OF TANGENCY ON THE WESTERLY RIGHT OF WAY LINE
OF SAID SUNBURY LANE;
THENCE CONTINUING ALONG THE SAID WESTERLY RIGHT OF WAY LINE OF SUNBURY LANE,
SOUTH 38 DEGREES 13 MINUTES AND 40 MINUTES EAST, 30.76 FEET TO A 3/4 INCH IRON
PIPE FOUND MARKING THE BEGINNING OF A CURVE TO THE RIGHT;
THENCE ALONG THE SAID CURVE TO THE RIGHT, BEING THE WESTERLY RIGHT OF WAY LINE
OF SAID SUNBURY LANE, HAVING A RADIUS OF 1,170.00 FEET, A DELTA OF 36 DEGREES
04 MINUTES 01 SECONDS (CALLED 36 DEGREES 02 MINUTES 30 SECONDS), AND AN ARC
LENGTH OF 736.50 FEET (CALLED 735.99 FEET) TO A 3/4 INCH IRON PIPE FOUND
MARKING THE POINT OF TANGENCY;
THENCE CONTINUING ALONG SAID WESTERLY RIGHT XX XXX XXXX XX XXXXXXX XXXX, XXXXX
00 DEGREES 09 MINUTES 39 SECONDS EAST (CALLED SOUTH 02 DEGREES 11 MINUTES 10
SECONDS EAST, 287.54 FEET (CALLED 287.31 FEET), TO A 5/8 INCH IRON ROD FOUND
MARKING THE BEGINNING OF A CURVE TO THE LEFT;
THENCE ALONG SAID CURVE TO THE LEFT, BEING ON THE SAID WESTERLY RIGHT OF WAY
LINE OF SUNBURY LANE, HAVING A RADIUS OF 392.17 FEET, A DELTA OF 08 DEGREES 08
MINUTES 15 SECONDS (CALLED 08 DEGREES 08 MINUTES 11 SECONDS), AND AN ARC LENGTH
OF 55.70 FEET (CALLED 55.69 FEET) TO A 3/4 INCH IRON PIPE FOUND MARKING THE
SOUTHEAST CORNER OF SAID PALAIS DE VILLE 7.4429 ACRE TRACT;
THENCE SOUTH 81 DEGREES 00 MINUTES 29 SECONDS WEST (CALLED SOUTH 80 DEGREES 59
MINUTES 07 SECONDS WEST), 96.48 FEET (CALLED 96.66 FEET), TO A 5/8 INCH IRON
ROD FOUND MARKING AN INTERIOR CORNER OF RESTRICTED RESERVE "J" OF SAID EASTON
COMMONS SECTION TWO, AND ALSO BEING THE SOUTHWEST CORNER OF THE HEREIN
DESCRIBED TRACT AND SAID PALAIS DE VILLE;
THENCE NORTH 18 DEGREES 02 MINUTES 19 SECONDS WEST (CALLED NORTH 18 DEGREES 03
MINUTES 51 SECONDS WEST), 114.51 FEET (CALLED 114.46 FEET), TO A 5/8 INCH IRON
FOUND CAPPED MARKING AN ANGLE POINT IN THE WESTERLY LINE OF SAID PALAIS DE VILLE
AND THE HEREIN DESCRIBED TRACT, BEING IN THE EASTERLY LINE OF SAID RESTRICTED
RESERVE "J"
THENCE NORTH 38 DEGREES 53 MINUTES 18 SECONDS WEST (CALLED NORTH 38 DEGREES 54
MINUTES 56 SECONDS WEST), 702.07 FEET (CALLED 701.52 FEET), TO THE NORTHWEST
CORNER OF THE HEREIN DESCRIBED TRACT AND SAID PALAIS DE VILLE, BEING THE
NORTHEAST CORNER OF SAID RESTRICTED RESERVE "J", ALSO BEING ON THE SOUTHEASTERLY
RIGHT OF WAY LINE OF SAID EASTON COMMONS DRIVE (60 FEET WIDE AT THIS POINT),
FROM WHICH A 5/8 INCH IRON ROD FOUND FOR REFERENCE BEARS NORTH 46 DEGREES 03
MINUTES WEST, 0.40 FEET;
THENCE ALONG THE SAID SOUTHEASTERLY RIGHT OF WAY LINE OF EASTON COMMONS DRIVE,
NORTH 15 DEGREES 38 MINUTES 32 SECONDS EAST, 173.20 FEET TO AN "X" SET IN
DRIVEWAY MARKING THE BEGINNING OF A CURVE TO THE RIGHT;
THENCE ALONG THE SAID CURVE TO THE RIGHT, BEING ON THE SAID SOUTHEASTERLY RIGHT
OF WAY LINE OF EASTON COMMONS DRIVE, HAVING A RADIUS OF 350.00 FEET, A DELTA
OF 37 DEGREES 10 MINUTES 19 SECONDS, AND AN ARC LENGTH OF 227.07 FEET TO A 5/8
INCH IRON PIPE FOUND MARKING THE POINT OF TANGENCY;
THENCE CONTINUING ALONG THE SAID SOUTHEASTERLY RIGHT OF WAY LINE OF EASTON
COMMONS DRIVE, NORTH 52 DEGREES 48 MINUTES 50 SECONDS EAST, 98.64 FEET TO THE
POINT OF BEGINNING, CONTAINING 7.4469 ACRES OR 324,388 SQUARE FEET OF LAND.
EXHIBIT "B"
PLEDGE AND SECURITY AGREEMENT
OUTSTANDING
NAME OF PROJECT PRINCIPAL BALANCE
--------------- ------------------
Xxxxxxxxxxx Apartments $ 952,281.00
Coventry Square Apartments 2,222,327.00
Crows Nest Apartments 1,518,109.00
Easton Village Apartments 1,807,965.00
Fisherman's Wharf Apartments 2,551,586.00
Hastings Place Apartments 843,955.00
Oak Falls Apartments 843,690.00
Signature Point Apartments 3,991,836.00
Sunbury Downs Apartments 103,755.00
Swiss Village Apartments 3,711,795.00
The Waterford Apartments 775,717.00
