CASH MANAGEMENT, SECURITY,
PLEDGE AND ASSIGNMENT AGREEMENT
THIS CASH MANAGEMENT, SECURITY, PLEDGE AND ASSIGNMENT AGREEMENT (this
"Cash Management Agreement"), dated as of July 1, 1996, among OTC APARTMENTS
LIMITED PARTNERSHIP, a limited partnership duly organized and existing under the
laws of Florida ("Pledgor"), FEDERAL NATIONAL MORTGAGE ASSOCIATION, a federally-
chartered and stockholder-owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, 12 U.S.C. Section 1716, et
seq. ("Pledgee"), and GMAC COMMERCIAL MORTGAGE CORPORATION, a California
corporation ("Servicer").
RECITALS
WHEREAS, Pledgor and Pledgee are parties to that certain Master
Reimbursement Agreement, dated as of July 1, 1996 (such agreement, as the same
may be amended, supplemented, or otherwise modified or amended and restated from
time to time in accordance with its terms, the "Reimbursement Agreement"),
pursuant to which Pledgee has agreed to provide credit enhancement in connection
with certain Mortgage Loans made to Borrower by various issuers and financed by
certain Related Bonds pursuant to and in accordance with the terms of certain
Related Xxxxxx Xxx Pass-Through Certificates. Except as otherwise provided
herein, initially-capitalized terms shall have the meaning ascribed to such
terms in the Reimbursement Agreement;
WHEREAS, in connection with the Reimbursement Agreement and the
Related Xxxxxx Mae Pass-Through Certificates Pledgor has agreed, among other
things, to grant Pledgee certain mortgages, deeds to secure debt and deeds of
trust liens pursuant to the Reimbursement Mortgages encumbering the Properties
and securing, among other things, amounts owed by Pledgor under the
Reimbursement Agreement. The Reimbursement Mortgages existing as of the date
hereof are described on Schedule 1 attached hereto;
WHEREAS, in order to induce Pledgee to extend the aforementioned
credit enhancement and liquidity accommodations, Pledgor has agreed to pledge
and assign to Pledgee the "Collateral" (as defined in SECTION 2 of this Cash
Management Agreement) as security for the performance of its obligations under
the Reimbursement Agreement and the other Transaction Documents.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
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1. ESTABLISHMENT OF ACCOUNTS AND DELIVERY OF COLLATERAL.
1.1 ESTABLISHMENT OF ACCOUNTS.
(i) ESTABLISHMENT OF PLEDGEE ACCOUNTS. On or before August 3,
1996 (the "EFFECTIVE DATE") Pledgor and Servicer shall establish and
shall thereafter maintain for the benefit of Pledgee: (a) a deposit
account designated the "GMAC Commercial Mortgage Corporation as Agent
for Federal National Mortgage Association/OTC - Central Account" or
such other designation as may be approved by Pledgee in its discretion
(the "CENTRAL ACCOUNT"), with a financial institution acceptable to
Xxxxxx Xxx in its discretion (the "CENTRAL ACCOUNT DEPOSITORY"); and
(b) a single deposit account with respect to each Property, designated
the "[Name of Property] Property Account" or such other designation as
may be approved by Pledgee in its discretion (each such account,
individually, a "PROPERTY ACCOUNT" and all such accounts,
collectively, the "PROPERTY ACCOUNTS"), with a financial institution
acceptable to Xxxxxx Mae in its discretion (each a "PROPERTY ACCOUNT
DEPOSITORY", and collectively, the "PROPERTY ACCOUNT DEPOSITORIES".
The Property Account Depositories and the Central Account Depository
are each referred to herein individually as a "DEPOSITORY" and
collectively and the "Depositories". The Central Account together with
the Property Accounts are referred to herein, collectively, as the
"PLEDGEE ACCOUNTS". Notwithstanding anything herein to the contrary,
the Depository's records with respect to each of the Pledgee Accounts
shall contain a notation reflecting title in the name of Servicer on
behalf of the Pledgee.
(ii) ESTABLISHMENT OF BORROWER ACCOUNT. Contemporaneously with
the establishment of the Central Account, Pledgor shall establish and
shall maintain with the Central Account Depository a certain deposit
account designated "OTC Apartments Limited Partnership" or such other
designation as may be approved by Pledgee in its discretion (the
"BORROWER ACCOUNT"; the Pledgee Accounts together with the Borrower
Account are referred to herein, collectively, as the "ACCOUNTS").
Notwithstanding anything herein to the contrary, the Borrower Account
has been established and at all times shall remain in the name of
Pledgor and shall at all times be held under the sole dominion and
control of Pledgor.
(iii) NOTIFICATION OF PLEDGEE. Upon selection of the
Depositories and immediately prior to creation of the
Accounts, Pledgor and Servicer shall provide Pledgee with
written notice specifying the identity of proposed financial
institutions, the address and telephone number of the branch
at which the related Account will be located, the name of
the officer that will be responsible for each such account,
the proposed designation and account number of each such
account and all other relevant identifying information
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with respect to the Depositories and the accounts all of which shall
be subject to Pledgee's approval in its discretion. Upon Pledgee's
approval of such information Servicer and Pledgor shall complete all
steps necessary for the creation of such Accounts and Pledgee shall
prepare a Schedule 2 to this Cash Management Agreement which shall (i)
include the requisite identifying information with respect to each
Property Account, and (ii) be automatically incorporated into this
Cash Management Agreement.
1.2 DELIVERY OF COLLATERAL. Pledgor acknowledges and agrees that the
Pledgee Accounts shall be established and shall at all times be maintained
in the name of Servicer on behalf of Pledgee and shall be held under the
sole dominion and control of Servicer on behalf of Pledgee. Only Pledgee
and Servicer acting on behalf of Pledgee shall have the right to make
withdrawals from the Pledgee Accounts and to exercise all rights with
respect to the funds on deposit therein from time to time. All instruments,
if any, representing or evidencing any or all of the Pledgee Accounts shall
be delivered to and held by Servicer on behalf of Pledgee and shall be in
suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to Pledgee. In the event any of the Pledgee Accounts
is not evidenced by an instrument, Pledgor hereby authorizes and instructs
Pledgee to contact the Depository for the purposes of advising the
Depository of the existence of the security interest created in such
Pledgee Account and the Collateral, as defined in Section 2.1 below, and of
requesting that a notation reflecting title in the name of Servicer on
behalf of the Pledgee or the security interest of Pledgee in such Pledgee
Account and the Collateral be made in the records of the Depository or in
such other appropriate records as Pledgee may require, all in form and
substance satisfactory to Pledgee. In addition, Pledgee shall have the
right at any time to exchange certificates or instruments representing or
evidencing Collateral for certificates or instruments of smaller or larger
denominations.
1.3 PROPERTY ACCOUNTS WITH RESPECT TO NEW PROPERTIES. In the event
that a New Property (as defined in the Reimbursement Agreement) shall be
substituted for an existing Property in accordance with Section 4.2 of the
Reimbursement Agreement or added to the Xxxxxx Xxx Credit Facility pursuant
to Section 4.4 of the Reimbursement Agreement or otherwise, then Pledgor
shall: (a) establish for the benefit of Pledgee a new Property Account with
respect to such New Property; (b) prepare a revised version of Schedule 2
which shall (i) include the requisite identifying information with respect
to such new Property Account, (ii) be submitted to Pledgee for approval by
Pledgee in its sole discretion, and (iii) be automatically incorporated
into this Cash Management Agreement upon such approval by Pledgee; (c)
notify the Depository by delivering a Restricted Account Letter (defined
below) to the Depository and delivering a countersigned acknowledgement of
such Restricted Account Letter to Pledgee in accordance with section 2.2
hereof; and (d)
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execute such financing statements as may be required by Pledgee in
accordance with section 6 hereof.
1.4 OPINIONS OF PLEDGOR'S COUNSEL. On or before the Effective Date,
to the extent not previously delivered, Pledgor shall deliver or cause to
be delivered to Pledgor one or more opinions confirming that upon (a)
creation of the Pledgee Accounts in accordance with section 1.1 above, (b)
delivery and acknowledgement of the Restricted Account Letters by each
Depository in accordance with section 2.2 below and (c) filing of the
financing statements in accordance with section 6 below, Pledgee shall have
a valid and perfected security interest in each of the Pledgee Accounts
under the laws of the state in which each such Pledgee Account is located.
Each such opinion shall be in form and substance and delivered by counsel
satisfactory to Pledgee in its discretion (a "PERFECTION OPINION"). If
Pledgee has not received a Perfection Opinion with respect to any Pledgee
Account by the Effective Date, Pledgee is hereby authorized to engage its
own counsel to render such opinion and to the extent such determines that
additional steps are necessary to create such perfected security interest,
Pledgor shall cooperate with Pledgee in all respects necessary to comply
with the requirements specified by Pledgee's counsel. In addition, Pledgor
will upon demand pay to Pledgee the amount of any and all reasonable
expenses, including the reasonable attorneys' fees and expenses of its
counsel which Pledgee may incur in connection with obtaining such
Perfection Opinion and complying with the requirements specified by
Pledgee's counsel for perfection of Pledgee's security interest in the
Pledgee Accounts.
2. PLEDGE AND ASSIGNMENT; NOTIFICATION OF DEPOSITORY.
2.1 PLEDGE AND ASSIGNMENT. Pledgor and Pledgee intend that (a)
Pledgor shall not have any interest in the Central Account, any of the
other Pledgee Accounts or any of the other Collateral and (b) the Pledgee
Accounts shall at all times be under the sole dominion and control of
Servicer on behalf of Pledgee. Notwithstanding the foregoing, to the extent
that Pledgor shall have been deemed to have any interest in all or any of
the Pledgee Accounts or any other portion of the Collateral, then Pledgor
hereby pledges and assigns to Pledgee and grants to Pledgee a lien and
security interest in the following (collectively, the "COLLATERAL"):
(i) each of the Pledgee Accounts and all certificates and
instruments, if any, from time to time representing or
evidencing all or any of the Pledgee Accounts;
(ii) all of its right, title and interest in and to all
amounts, cash, cash equivalents and funds and all
bankers acceptances, bonds, book entry deposits,
certificates of deposit, commercial paper,
debentures, demand and time deposits, funding
agreements, investment contracts, letters of credit
and all proceeds from any drawings under any letter
of credit,
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money market funds, notes, reinvestment letters, repurchase
obligations, securities or other instruments, all bonds,
securities and other obligations issued by any government or
any political subdivision thereof or any agency or
instrumentality thereof, and all other property from time to
time on deposit in the Pledgee Accounts or delivered to or
otherwise possessed by Pledgee in substitution for or in
addition to any or all of the then existing Collateral
(collectively, the "DEPOSITED FUNDS");
(iii) all investments from time to time representing or evidencing
the Pledgee Accounts or the Deposited Funds and all
certificates and instruments, if any, from time to time
representing or evidencing such investments; and
(iv) to the extent not covered by clauses (i) through (iii) above,
all cash and noncash proceeds and products of any of the
foregoing, including, without limitation, interest, dividends,
cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all of the then existing Collateral.
2.2 NOTIFICATION OF THE DEPOSITORIES. Prior to the Effective Date
Pledgor shall notify each Depository of the grant, pledge and assignment
effected by this Cash Management Agreement by executing and delivering an
irrevocable Restricted Account Letter in the form of Exhibit A hereto (each
a "RESTRICTED ACCOUNT LETTER") to each Depository. Each such Restricted
Account Letter shall be countersigned by the respective Depository and
returned to Pledgee.
3. SECURITY FOR OBLIGATIONS. This Cash Management Agreement secures the
prompt payment and performance in full when due, whether at stated maturity, by
acceleration or otherwise (including the payment of amounts that would become
due but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. Section 362(a), or any successor provision thereto),
of all Obligations of Pledgor now or hereafter existing.
4. CASH MANAGEMENT.
4.1 DEPOSIT OF GROSS CASH FLOW IN THE PROPERTY ACCOUNTS. So long
as the Obligations shall remain outstanding, Pledgor shall deposit, or
cause its property manager AIMCO Properties, L.P. ("PROPERTY MANAGER")
(in the ordinary course of Property Manager's management of the
Properties), to collect and to deposit, the Gross Cash Flow (as
defined in the Reimbursement Agreement) from each Property into the
applicable Property Account by directing the tenants of each Property
to make rent payments payable to the applicable Property Account. Any
such check or
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instrument that is made payable to any person or entity other than the
applicable Property Account shall be endorsed by Pledgor for deposit into
the applicable Property Account in legally sufficient form to make
Servicer, on behalf of Pledgee, a holder in due course thereof by the payee
thereof (or, if Pledgor fails to do so, endorsed by Servicer, Servicer
being authorized and instructed to do so pursuant to SUBSECTION 4.2).
Pledgor agrees, and each agent of Pledgor (including Property Manager)
shall be deemed to have agreed, not to commingle any rents received by it
with any of its other funds or property and each further agrees (and shall
be deemed to have further agreed) to hold all such rents in trust for
Pledgee until deposited into the applicable Property Account in accordance
herewith. Only amounts permitted or required to be deposited therein
pursuant to this section 4 shall be deposited in the Property Accounts, in
accordance with the terms of this Cash Management Agreement.
4.2 PLEDGEE AND SERVICER AUTHORIZED TO ENDORSE CHECKS. Pledgor
hereby authorizes Pledgee and Servicer acting on behalf of Pledgee, to
receive checks, drafts and other negotiable demand instruments payable
to Pledgor or any agent of Pledgor, and authorizes and directs
Servicer on behalf of Pledgee, and Servicer acknowledges and agrees,
promptly upon receipt of such instrument, to endorse the same for
deposit and to effect such deposit into the applicable Property
Account. Each check, draft or instrument deposited into the applicable
Property Account shall be deemed to have been endorsed by the payee
thereof to the order of the applicable Property Account, whether or
not such an endorsement is actually placed on such instrument and
Servicer on behalf of Pledgee shall have the rights of a holder in due
course of such instrument against the payee named thereon and against
each party hereto having any right therein or claim thereto, whether
or not any disbursement has been made of the funds represented by such
instrument. Pledgor agrees to indemnify, defend (with counsel
reasonably satisfactory to Pledgee) and hold Pledgee and Servicer
harmless from and against any and all claims, actions, liabilities,
judgments, costs, expenses (including reasonable attorneys' fees and
disbursements) and other charges of whatever kind or character arising
out of or relating to the receipt, endorsement or deposit of such
checks or instruments as aforesaid.
4.3 DAILY SWEEP OF THE PROPERTY ACCOUNTS. All funds on deposit
in each Property Account shall be automatically transferred through
automated clearing house funds by electronic transfer or by federal
wire transfer on a daily basis from each Property Account into the
Central Account.
4.4 TRANSFER OF FUNDS FROM THE CENTRAL ACCOUNT. So long as no
Event of Default has occurred and is continuing, Pledgee shall
instruct the Servicer to cause all funds on deposit in the Central
Account to be automatically transferred into the Borrower Account at
the end of each Business Day; PROVIDED, HOWEVER, that if prior to an
Event of Default, funds are held in the Central Account overnight for
any
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reason, interest accruing on such funds, if any, shall accrue for the
benefit of Pledgor and shall be transferred to the Borrower Account on
the next Business Day. Notwithstanding the foregoing, Pledgor shall
have no right to withdraw funds from any of the Property Accounts or
the Central Account. If an Event of Default occurs, then Pledgee
shall, at Pledgee's option, instruct the Servicer to immediately
cancel all future transfers of funds from the Central Account to the
Borrower Account. If an Event of Default shall have occurred and be
continuing, funds on deposit in the Central Account shall be applied
by Servicer, at the direction of Pledgee and in Pledgee's option, in
accordance with SECTION 13 hereof.
5. MAINTAINING THE ACCOUNTS. So long as the Obligations (as defined in
the Reimbursement Agreement) remain outstanding, Pledgor will maintain each
Account with the respective Depository or such other depository as Pledgee shall
approve in writing from time to time. The Accounts shall be subject to such
applicable laws, and such applicable regulations of the Board of Governors of
the Federal Reserve System and of any other appropriate banking or governmental
authority, as may now or hereafter be in effect.
6. FINANCING STATEMENTS. Pledgor shall execute such financing statements
as may be required by Pledgee in order to perfect the security interest granted
herein in the Collateral pursuant to the Uniform Commercial Code (the "CODE") as
adopted in the state in which each Pledgee Account is located.
7. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants to
Pledgee and Servicer as follows:
7.1 Prior to the conveyances effected pursuant to this Cash
Management Agreement, Pledgor was the legal and beneficial owner of
the Collateral free and clear of any lien, security interest, or other
charge or encumbrance except for the security interest created by any
other Transaction Documents or this Cash Management Agreement.
7.2 To the extent that Pledgor shall be deemed to have any
interest in all or any of the Pledgee Accounts or any other portion of
the Collateral, the pledge and assignment of the Collateral pursuant
to this Cash Management Agreement creates a valid and perfected first
priority security interest in the Collateral, securing the payment and
performance of the Obligations.
8. FURTHER ASSURANCES. Pledgor agrees that at any time and from time to
time, at the expense of Pledgor, Pledgor will promptly execute and deliver to
Pledgee all further instruments and documents, and take all further action, that
may be necessary or desirable, or that Pledgee or Servicer may request, in order
to perfect, continue and protect any security interest granted or purported to
be granted hereby or to enable Pledgee to exercise and enforce its rights and
remedies hereunder with respect to any Collateral.
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9. TRANSFERS AND OTHER LIENS. Pledgor agrees that it will not (a) sell or
otherwise dispose of any of the Collateral, or (b) create or permit to exist any
lien, security interest, or other charge or encumbrance upon or with respect to
any of the Collateral, except for the security interest created pursuant to this
Cash Management Agreement or any other Transaction Document.
10. PLEDGEE APPOINTED ATTORNEY-IN-FACT. Pledgor hereby appoints Pledgee,
through any duly authorized officer of Pledgee, as Pledgor's attorney-in-fact,
with full authority in the place and stead of Pledgor and in the name of Pledgor
or otherwise, from time to time in Pledgee's discretion during the continuance
of an Event of Default, to take any action and to execute any instrument which
Pledgee may deem necessary or advisable to accomplish the purposes of this Cash
Management Agreement, including, without limitation, to receive, indorse and
collect all instruments made payable to Pledgor representing any interest
payment, dividend, or other distribution in respect of the Collateral or any
part thereof and to give full discharge for the same.
11. PLEDGEE MAY PERFORM. If Pledgor fails to perform any agreement
contained herein, then upon the expiration of any applicable cure period
therefor, Pledgee or Servicer may itself perform, or cause performance of, such
agreement, and the reasonable expenses of Pledgee incurred in connection
therewith shall be payable by Pledgor to Pledgee upon demand.
12. REASONABLE CARE. Pledgee and Servicer shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which Pledgee or Servicer, as applicable, accords similar collateral in its
possession. Neither Pledgee nor Servicer shall have any responsibility for (a)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
Pledgee or Servicer has or is deemed to have knowledge of such matters, (b)
taking any steps to preserve rights against any parties with respect to any
Collateral or (c) the collection of any Collateral. Neither Pledgee nor Servicer
shall have any obligation or liability (i) to provide an accounting to Pledgor
of deposits or payments to the Accounts or any of them, the identity of the
tenants or other parties making such deposits or payments or the date on which
such deposits or payments were made (it being agreed that Pledgor shall look to
the Depositories for such information), or (ii) with respect to correspondence
or other information which may be delivered to the Accounts or any of them with
any deposit or instrument or otherwise.
13. REMEDIES UPON DEFAULT. If any Event of Default shall have occurred and
be continuing:
13.1 Pledgee may, without notice to Pledgor except as required
by law and at any time or from time to time, charge, set-off and
otherwise apply all or any part of the Obligations against the Pledgee
Accounts or any part thereof.
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13.2 Pledgee shall have the right, in its discretion, to transfer to
or to register in the name of Pledgee or any of its nominees any or all of
the Collateral.
13.3 In addition to other rights and remedies provided for herein or
otherwise available to it, Pledgee may also exercise all the rights and
remedies of a secured party on default under the Code in effect at that
time with respect to such Collateral, and Pledgee may, without notice
except as specified below, sell the Collateral or any part thereof in one
or more parcels at public or private sale, at any of Pledgee's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms as Pledgee may deem commercially reasonable. Pledgor agrees that, to
the extent notice of sale shall be required by law, at least ten (10) days'
notice to Pledgor of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. Pledgee shall not be obligated to make any sale of the
Collateral regardless of notice of sale having been given. Pledgee may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
13.4 All Deposited Funds and all cash proceeds received by Pledgee in
respect of any sale of, collection from, or other realization upon all or
any part of the Collateral shall be applied by Pledgee to the payment of
any outstanding Obligations in such order as Pledgee may elect.
14. FEES AND EXPENSES. Pledgor will upon demand pay to Pledgee or
Servicer, as applicable, the amount of any and all reasonable expenses,
including the reasonable attorneys' fees and expenses of its counsel and of any
experts and agents, which Pledgee or Servicer may incur in connection with (a)
the administration of this Cash Management Agreement, (b) the custody or
preservation of, or the sale of, collection of, or other realization upon, any
of the Collateral, (c) the exercise or enforcement of any of the rights of
Pledgee or Servicer hereunder or (d) the failure by Pledgor to perform or
observe any of the provisions hereof.
15. AMENDMENTS, ETC. No amendment or waiver of any provision of this Cash
Management Agreement nor consent to any departure by Pledgor herefrom shall in
any event be effective unless the same shall be in writing and signed by
Pledgee, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose of which given.
16. NOTICES. All notices, directions, certificates or other communications
hereunder shall be given by certified or registered mail, return receipt
requested, or by overnight courier addressed to the appropriate notice address
set forth below. Any of the parties hereto may, by such notice described above,
designate any further or different address to which subsequent notices,
certificates or other communications shall be sent without any requirement of
execution of any amendment to this Cash Management
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Agreement. Any such notice, certificate or communication shall be deemed to have
been given as of the date of actual delivery or the date of failure to deliver
by reason of refusal to accept delivery or changed address of which no notice
was given pursuant to this section 16. The notice addresses are as follows:
(A) If to Pledgee:
if by mail or overnight courier:
Xxxxxx Xxx
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X 00000
Attention: Senior Vice President - Multifamily Activities
if by messenger:
Xxxxxx Mae
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X 00000
Attention: Senior Vice President - Multifamily Activities
in each case, with copies to:
Xxxxxx Xxx
Southwest Regional Office
Two Galleria Tower
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attention: Regional Vice President - Multifamily Activities
and to:
Xxxxxx Xxx
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Multifamily Mortgage Operations - Manager
Multifamily Deliveries
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(B) If to Servicer:
GMAC Commercial Mortgage Corporation
000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxx
(C) If to Pledgor:
OTC Apartments Limited Partnership
0000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Vice Chairman
17. CONTINUING SECURITY INTEREST. This Cash Management Agreement shall
create a continuing security interest in the Collateral and shall (a) remain in
full force and effect until the Obligations have been indefeasibly paid in full
(the "RELEASE DATE"), (b) be binding upon Pledgor, its successors and assigns,
and (c) inure to the benefit of Pledgee and its successors, transferees and
assigns. From and after the Release Date, at the request and expense of Pledgor,
Pledgee shall cause the remainder of the Collateral, if any, as shall not have
been sold or otherwise applied pursuant to the terms hereof, to be returned to
Pledgor or to such other person or entities who may be lawfully entitled
thereto.
18. GOVERNING LAW; TERM. This Cash Management Agreement shall be construed
and enforced in accordance with, and the rights and remedies of the parties
hereto shall be governed by, the laws of the State of Florida without regard to
conflicts of law principals except to the extent that Federal laws may prevail,
provided however, that matters respecting the creation, continuation,
perfection, priority and enforcement of the security interests granted
hereunder, shall governed by and construed and enforced in accordance with, the
internal law of the state or commonwealth in which the respective Pledgee
Accounts are situated without regard to conflicts of laws principles of such
state or commonwealth.
19. SEVERABILITY. In case any provision in or obligation under this Cash
Management Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
20. COUNTERPARTS. To facilitate execution, this Cash Management Agreement
may be executed in any number of counterparts. It shall not be necessary that
the signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart, but it shall be
sufficient that the signature of, or on behalf of, each party, appear on one or
more counterparts. All counterparts shall collectively
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constitute a single agreement. It shall not be necessary in making proof of this
Cash Management Agreement to produce or account for more than a number of
counterparts containing the respective signatures of, or on behalf of, all of
the parties hereto.
21. SERVICER'S ROLE ON BEHALF OF PLEDGEE. In all circumstances set forth
in this Cash Management Agreement where Pledgee is required to act, Servicer
shall be entitled to act on behalf of Pledgee in accordance with Section 5.1 of
the Reimbursement Agreement. If the agreement between Pledgee and Servicer with
respect to the servicing of the Mortgage Loans (such agreement, including a
Xxxxxx Xxx guide, if applicable, as it may be amended, restated, supplemented,
replaced or otherwise modified from time to time, the "SERVICING AGREEMENT"), is
terminated or if Servicer is otherwise replaced by Pledgee pursuant to the terms
of the Servicing Agreement, then (a) Servicer's rights and obligations under
this Cash Management Agreement shall immediately cease and Servicer shall have
no further right to act for or on behalf of Pledgee and (b) each and all of the
covenants, terms, provisions and agreements relating to Servicer and contained
in this Cash Management Agreement shall be binding upon and inure to the benefit
of Pledgee or, if applicable, any new servicer chosen by Pledgee in its sole
discretion to succeed to the rights and obligations of Servicer under this Cash
Management Agreement.
22. ASSIGNMENTS; THIRD-PARTY RIGHTS. None of the parties hereto shall
assign this Cash Management Agreement, or delegate any obligations hereunder,
without the prior written consent of Pledgee. Except as set forth in the
immediately preceding sentence, nothing in this Cash Management Agreement shall
confer any right upon any other person or other entity other than the parties
hereto and their successors and permitted assigns.
23. CONSENT OF PLEDGEE. If any provision of this Cash Management Agreement
provides for the prior approval or consent of Pledgee or any waiver by Pledgee
and if a basis for Pledgee granting such approval, consent or waiver is not
otherwise stated then it is understood and agreed that such approval or consent
will be given by Pledgee in its sole and absolute discretion.
24. SATISFACTION REQUIREMENT. If any agreement, certificate or other
writing, or any action taken or to be taken, is by the terms of this Agreement
required to be satisfactory to Pledgee, then, unless otherwise expressly
specified herein, the determination of such satisfaction shall be made by
Pledgee in its sole and exclusive judgement.
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IN WITNESS WHEREOF, Pledgor, Pledgee and Servicer have caused this Cash
Management Agreement to be duly executed and delivered by their respective duly
authorized officers as of the date first above written.
PLEDGOR:
OTC APARTMENTS LIMITED PARTNERSHIP, a Florida
limited partnership
By: AIMCO/OTC QRS, Inc., a Delaware
corporation, its general partner
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
PLEDGEE:
FEDERAL NATIONAL MORTGAGE ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
SERVICER:
GMAC COMMERCIAL MORTGAGE CORPORATION, a
California corporation
By:/s/ Xxxxx X. Net
-------------------------------------
Name: Xxxxx X. Net
Title: Senior Vice President
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