GENERAL PARTNER
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "AGREEMENT"), dated as of
December 2, 1996 made by AIMCO LT, L.P., a Delaware limited partnership (the
"PLEDGOR"), having an address at 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx, XX
00000, in favor of GMAC COMMERCIAL MORTGAGE CORPORATION, a California
corporation ("GMAC"), having an address at 000 Xxxxxxx Xxxx, X.X. Xxx 0000,
Xxxxxxx, XX 00000-0000
W I T N E S S E T H:
WHEREAS, the Pledgor is a general partner of XXXXXXX LIMITED PARTNERSHIP,
an Illinois limited partnership (the "PARTNERSHIP");
WHEREAS, GMAC has made a first mortgage loan to the Partnership in the
original principal amount of $2,488,400 (the "LOAN"). The proceeds of the Loan
will be used to finance a multifamily project known as Xxxxxxx at Xxxxxxxx Mill
Apartments and located in Austin, Texas (the "PROPERTY");
WHEREAS, the Loan is evidenced by a Multifamily Note (the "NOTE") issued by
the Partnership and is secured by, among other things, a Multifamily Deed of
Trust, Assignment of Rents and Security Agreement (the "DEED OF TRUST") of even
date herewith, granting a first lien on the Property. The Note, the Deed of
Trust and all other documents executed in connection with the Loan are
hereinafter collectively referred to as the "LOAN DOCUMENTS";
WHEREAS, to secure the obligations of the Partnership under the Loan
Documents, the Pledgor has agreed to execute and deliver this Agreement; and
WHEREAS, the Pledgor will receive substantial benefits as a result of and
in connection with the transactions contemplated by the Loan Documents.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
SECTION 1 DEFINED TERMS. The following terms which are defined in the
Uniform Commercial Code in effect in the State of Texas on the date hereof are
used herein as so defined: Accounts, Chattel Paper, General Intangibles,
Instruments and
Proceeds; and the following terms shall have the following meanings:
"AGREEMENT" means this General Partner Pledge and Security Agreement,
as amended, supplemented or otherwise modified from time to time.
"COLLATERAL" has the meaning assigned to it in Section 2 of this
Agreement.
"PARTNERSHIP AGREEMENT" means the partnership agreement of the
Partnership.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the State of Texas.
SECTION 2 GRANT OF SECURITY INTEREST BY PLEDGOR. The Pledgor hereby
pledges to GMAC, and grants to GMAC, a first priority lien on, and continuing
first priority security interest in, all of the following property now owned or
at any time hereafter acquired by the Pledgor or in which the Pledgor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "COLLATERAL"), as collateral security for the prompt and
complete payment and performance by the Partnership of its obligations under the
Loan Documents:
(a) The Pledgor's general partnership interests in the Partnership
and all of its rights as general partner under the Partnership Agreement
(including, without limitation, all of its right, title and interest as a
general partner to participate in the operation and management of the
Partnership and all of its right, title and interest as general partner to
property, assets, management and other fees, partnership interest and
distributions under the Partnership Agreement);
(b) all Accounts arising out of its general partnership interests in
the Partnership and the Partnership Agreement;
(c) all General Intangibles arising out of its general partnership
interests in the Partnership and the Partnership Agreement;
(d) all present and future rights of the Pledgor to receive any
payment of money or other distribution or payment arising out of or in
connection with its general partnership interests in the Partnership and
its rights as general partner under the Partnership Agreement;
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(e) any other property of the Partnership to which the Pledgor
now or in the future may be entitled in its capacity as a general partner
of the Partnership by way of distribution, return of capital or otherwise;
(f) any other claim which the Pledgor now has or may in the
future acquire in its capacity as a general partner of the Partnership
against the Partnership and/or its property and/or the other partners
thereof; and
(g) to the extent not otherwise included above, all Proceeds of
any and all of the foregoing, including, without limitation, whatever is
received upon any collection, exchange, sale or other disposition of any of
the Collateral, and any property into which any of the Collateral is
converted, whether cash or noncash proceeds, and any and all other amounts
paid or payable under or in connection with any of the Collateral.
This Agreement constitutes a continuing security interest in the Collateral
and shall remain in full force and effect until release or termination of the
Partnership's obligations under the Loan Documents (collectively, the
"OBLIGATIONS").
SECTION 3 RIGHTS OF GMAC; LIMITATIONS ON GMAC'S OBLIGATIONS.
(a) PLEDGOR REMAINS LIABLE. Anything herein to the contrary
notwithstanding, the Pledgor shall remain liable under the Partnership
Agreement to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with and
pursuant to the terms and provisions thereof. Unless GMAC shall become a
general partner of the Partnership as a result of its exercise of remedies
pursuant to the terms hereof, and except as set forth in Section 17 hereof,
GMAC shall not have any obligation or liability by reason of or arising out
of this Agreement or the receipt by GMAC of any payment relating to any
Collateral pursuant hereto, nor shall GMAC be obligated in any manner to
perform any of the obligations of the Pledgor under or pursuant to the
Partnership Agreement or any Account or General Intangible to make any
payment, to make any inquiry as to the nature or the sufficiency of any
payment received by it or as to the sufficiency of any performance by any
party under any thereof, to present or file any claim, to take any action
to enforce any performance or to collect the payment of any amounts that
may have been pledged to it or to which it may be entitled at any time or
times. Nothing contained in this Agreement shall be construed or
interpreted (a) to transfer to GMAC any of the obligations of a partner of
the
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Partnership, or (b) to constitute GMAC a partner of the Partnership.
(b) PROCEEDS. Subject to Section 6 hereof, GMAC hereby
authorizes the Pledgor to collect all Accounts arising out of the
Partnership Agreement in respect of its general partnership interests in
the Partnership. If required by GMAC at any time after the occurrence of a
default or an Event of Default under any of the Loan Documents, such
Accounts and any Proceeds, when collected by the Pledgor, shall be
forthwith deposited by the Pledgor in the exact form received, duly
indorsed by the Pledgor to GMAC if required, in a special bank account
maintained by GMAC, subject to withdrawal by GMAC as hereinafter provided,
and, until so turned over, shall be held by the Pledgor in trust for GMAC,
segregated from other funds of the Pledgor.
SECTION 4 REPRESENTATIONS AND WARRANTIES. The Pledgor hereby represents and
warrants as follows:
(a) OWNERSHIP OF COLLATERAL; LIENS. The Pledgor is the legal and
beneficial owner of the Collateral, free and clear of all liens, except for
the liens created by this Agreement. The Pledgor has all requisite power
and authority and the legal right to pledge to GMAC, and to grant to GMAC,
a first priority lien on and continuing first priority security interest in
the Collateral. The execution, delivery and performance by the Pledgor of
this Agreement is within the Pledgor's powers, has been duly authorized by
all necessary partnership and legal action, and does not contravene any
agreement applicable to the Partnership or the Pledgor or restriction
binding on or affecting the Partnership or the Pledgor or any of their
respective assets. No security agreement, financing statement or other
public notice with respect to all or any part of the Collateral is on file
or of record in any public office, except such as may have been filed in
favor of GMAC pursuant to this Agreement.
(b) SECURITY INTEREST. The security interests granted and
continued pursuant to this Agreement constitute perfected first priority
security interests in the Collateral in favor of GMAC and are enforceable
as such against all creditors of and purchasers from the Pledgor. All
action on the part of the Pledgor necessary or desirable to perfect such
security interests in each item of the Collateral requested by GMAC,
including the execution of financing statements for filing in the
appropriate filing offices in all appropriate public offices, has been or
will be duly taken.
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(c) GOVERNMENTAL ACTION. No action by any governmental or
quasi-governmental body or authority (i) is required in connection with
the grant or continuation by the Pledgor of the liens intended to be
created or continued pursuant to this Agreement, (ii) is required to be
obtained by the Pledgor in connection with the exercise by GMAC of the
rights provided in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement, or (iii) is required in
connection with the execution, delivery and performance by the Pledgor
of this Agreement or the Partnership Agreement.
(d) ACCOUNTS. The Pledgor's chief executive office and chief place
of business, and the place where the Pledgor keeps its records concerning
the Collateral, is located at Pledgor's address set forth on page 1 hereof.
SECTION 5 COVENANTS. The Pledgor covenants and agrees that, so long as any
of the Obligations under the Loan Documents remain in effect:
(a) FURTHER DOCUMENTATION; PLEDGE OF INSTRUMENTS. At any time and
from time to time, upon the written request of GMAC, and at the sole
expense of the Pledgor, the Pledgor will promptly and duly execute and
deliver such further instruments and documents and take such further action
as GMAC may reasonably request for the purpose of obtaining or preserving
the full benefits of this Agreement and of the rights and powers herein
granted. Without limiting the generality of the foregoing, the Pledgor
will execute and file such financing or continuation statements, or
amendments thereto, and such other instruments, endorsements or notices, as
GMAC may deem necessary or desirable in order to perfect and preserve the
liens created or continued or intended to be created or continued hereby.
The Pledgor hereby authorizes GMAC to file any such financing or
continuation statement without the signature of the Pledgor to the extent
permitted by applicable law. If any amount payable under or in connection
with any of the Collateral shall be or become evidenced by any promissory
note, other Instrument or Chattel Paper, such note, Instrument or Chattel
Paper shall be immediately delivered to GMAC, duly indorsed in a manner
satisfactory to GMAC, to be held as Collateral pursuant to this Agreement.
(b) MAINTENANCE OF RECORDS. The Pledgor will keep and maintain at
its own cost and expense satisfactory and complete records of the
Collateral.
(c) LIMITATION ON LIENS ON COLLATERAL. The Pledgor will not create,
incur or permit to exist, will defend the
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Collateral and the right, title and interest of GMAC therein against,
and will take such other action as is necessary to remove, any lien,
encumbrance or claim on or to the Collateral other than the lien created
and continued pursuant to this Agreement.
(d) FURTHER IDENTIFICATION OF COLLATERAL. The Pledgor will
furnish to GMAC from time to time statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral as GMAC may reasonably request, all in
reasonable detail.
(e) CHANGES IN LOCATIONS, NAME, ETC. The Pledgor will not,
unless it shall give 60 days' prior written notice to such effect to
GMAC, (i) change the location of its chief executive office or chief
place of business from that specified in Section 4(d) hereof, or remove
its books and records from such location, or (ii) change its name,
identity or structure to such an extent that any financing statements
filed by GMAC in connection with this Agreement would become misleading.
(f) AMENDMENTS TO PARTNERSHIP AGREEMENT. The Pledgor shall not,
without the prior written consent of GMAC, consent to, vote in favor of
or otherwise permit any amendment to or modification of the Partnership
Agreement or the partnership agreements, Articles of Incorporation or
by-laws of any Affiliate (as hereinafter defined). For purposes of
this Pledge, "Affiliate" shall mean any corporation, partnership, joint
venture, association, limited liability company, limited liability
partnership, joint stock company, trust, or unincorporated organization
that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with the
Pledgor.
(g) NO TRANSFER OF INTEREST IN PARTNERSHIP. The Pledgor shall not
sell, assign, transfer, pledge or encumber or permit to be sold,
assigned, transferred, pledged or encumbered any of its interests in the
Partnership or the other Collateral. Any sale, assignment, transfer,
pledge or encumbrance of the Pledgor's interest in the Partnership in
violation of the foregoing provisions of this Section 5(g) shall be null
and void.
(h) BANKRUPTCY OF THE PARTNERSHIP. The Pledgor shall not
authorize, seek to cause or permit the Partnership to commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the
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appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property or to
consent to any such relief or to the appointment of or taking possession
by any such official in an involuntary case or other proceeding
commenced against it, or to make a general assignment for the benefit of
its creditors.
(i) REPRESENTATIONS. The Pledgor will not take any action which
would cause any of the representations of the Partnership set forth in
the Loan Documents to cease to be true and correct at all times.
(j) CONDUCT OF BUSINESS, MAINTENANCE OF EXISTENCE, ETC. The
Pledgor shall at all times (i) preserve and maintain in full force and
effect its existence as a limited partnership under the laws of the
State of Delaware and its qualification to do business in each other
jurisdiction where the ownership or leasing of property or the nature of
business transacted makes such qualifications necessary, and (ii)
obtain, maintain in full force and effect and comply in all material
respects with all legal requirements and other consents and approvals
required at any time in connection with its general partnership
interests in the Partnership.
(k) CLAIMS AGAINST COLLATERAL. The Pledgor shall, within 5 days
of receipt of knowledge by the Pledgor, notify GMAC in reasonable detail
of any lien, encumbrance or claim made or asserted against the
Collateral.
(l) COMPLIANCE WITH LAWS. The Pledgor shall comply with all legal
requirements in connection with its business as a general partner of the
Partnership.
(m) NOTICE OF DISSOLUTION. The Pledgor will forthwith upon
learning of the occurrence of any event which would cause termination
and/or dissolution of the Partnership, notify GMAC in writing thereof.
SECTION 6 GMAC'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) POWERS. Effective immediately, without limiting any rights or
powers granted herein to GMAC while no default or Event of Default under
any of the Loan Documents has occurred, the Pledgor hereby irrevocably
constitutes and appoints GMAC and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority, in the place and stead of the
Pledgor and in the name of the Pledgor or in its own name, for the
purpose of carrying out
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the terms of this Agreement, without notice to or assent by the Pledgor,
to do the following:
(i) upon the occurrence of any default or Event of Default
under any of the Loan Documents, to exercise all partnership
rights, powers and principles to the same extent as a general
partner of the Partnership;
(ii) to the extent that the Pledgor would have the right to do
so under the Partnership Agreement, upon the occurrence of any
Event of Default, in the name of the Pledgor or its own name, or
otherwise, to take possession of and indorse (without recourse) and
collect any checks, drafts, notes, acceptances or other instruments
for the payment of moneys due under the Partnership Agreement or
any Account, Instrument or General Intangible arising thereunder or
out of the Pledgor's general partnership interests in the
Partnership and to file any claim or to take any other action or
proceeding in any court of law or equity or otherwise deemed
appropriate by GMAC for the purpose of collecting any and all such
moneys due under the Partnership Agreement or any Account,
Instrument or General Intangible arising thereunder or out of the
Pledgor's general partnership interests in the Partnership whenever
payable;
(iii) upon the occurrence of any default or Event of Default
under any of the Loan Documents, to pay or discharge taxes and
Liens levied or placed on the Collateral and to execute any and all
documents and instruments that may be necessary or desirable to
accomplish the purposes of Section 5(a) hereof; and
(iv) upon the occurrence of any default or Event of Default
under any of the Loan Documents, (A) to direct any party liable for
any payment under any of the Collateral to make payment of any and
all moneys due or to become due thereunder directly to GMAC or as
GMAC shall direct, (B) to ask or demand for, collect, receive
payment of and receipt for, any and all moneys, claims and other
amounts due or to become due at any time in respect of or arising
out of any Collateral, (C) to sign and indorse any invoices,
freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications,
notices and other documents in connection with any of the
Collateral, (D) to commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any part thereof and to
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enforce any other right in respect of any Collateral, (E) to defend
any suit, action or proceeding brought against the Pledgor with
respect to any Collateral, (F) to settle, compromise or adjust any
suit, action or proceeding described in clause (E) above and, in
connection therewith, to give such discharges or releases as GMAC
may deem appropriate and (G) generally, to sell, transfer, pledge
and make any agreement with respect to or otherwise deal with any
of the Collateral as fully and completely as though GMAC were the
absolute owner thereof for all purposes, and to do, at GMAC's
option and the Pledgor's expense, at any time, or from time to
time, all acts and things that GMAC deems necessary to protect,
preserve or realize upon the Collateral and the liens thereon
created and continued hereby and to effect the intent of this
Agreement, all as fully and effectively as the Pledgor might do.
The Pledgor hereby ratifies all that said attorneys shall lawfully
do or cause to be done by virtue hereof. This power of attorney is
a power coupled with an interest and shall be irrevocable.
(b) OTHER POWERS. The Pledgor also authorizes GMAC, at any time and
from time to time, to execute, in connection with any sale provided for in
Section 8 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
SECTION 7 PERFORMANCE BY GMAC OF THE PLEDGOR'S OBLIGATIONS; RIGHTS OF
PLEDGOR PRIOR TO A DEFAULT OR EVENT OF DEFAULT. Immediately upon the occurrence
of a default or an Event of Default under any of the Loan Documents, and without
limiting any rights or powers granted herein to GMAC while no default or an
Event of Default under any of the Loan Documents has occurred, GMAC, without
releasing the Pledgor from any obligation, covenant or condition hereof, itself
may make any payment or perform, or cause the performance of, any such
obligation, covenant or condition or take any other action in such manner and to
such extent as GMAC may deem necessary to protect, perfect or continue the
perfection of the liens created or continued or intended to be created or
continued pursuant to this Agreement. Unless a default or an Event of Default
under any of the Loan Documents shall have occurred, the Pledgor shall be
entitled to receive and retain, dividend or otherwise utilize all distributions
made to it pursuant to the Partnership Agreement or otherwise arising out of the
Collateral and exercise all voting, partnership and other rights pertaining to
the Collateral and take all action it is authorized to take thereunder; PROVIDED
that no vote or other
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action taken shall otherwise result in a default or an Event of Default under
any of the Loan Documents.
SECTION 8 RIGHTS AND REMEDIES.
(a) If a default or an Event of Default under any of the Loan
Documents shall have occurred, (i) all payments made in respect of the
Collateral and received by or on behalf of GMAC in accordance with the
provisions of this Agreement or otherwise, may, in the discretion of GMAC,
(A) be held by or on behalf of GMAC as Collateral, and/or (B) then or at
any time thereafter be applied to the Obligations in such order as GMAC
shall determine, and (ii) to the extent permitted by applicable law, all
shares or certificates of or evidencing the Collateral shall be registered
in the name of GMAC or its nominee, and (whether or not so registered) GMAC
or its nominee may thereafter exercise (A) all voting, partnership and
other rights pertaining to the Collateral and (B) any and all rights of
conversion, exchange, subscription and any other rights, privileges or
options pertaining to the Collateral as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its
discretion any and all of the Collateral upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the
partnership structure of the Partnership or upon the exercise by the
Pledgor or GMAC of any right, privilege or option pertaining to such shares
or certificates of or evidencing the Collateral, and in connection
therewith, the right to deposit and deliver any and all of the Collateral
with any committee, depository, transfer agent, registrar or other
designated agency upon such terms and conditions as it may determine), all
without liability except to account for property actually received by it,
but GMAC shall have no duty to exercise any such right, privilege or option
and shall not be responsible for any failure to do so or delay in so doing.
(b) If a default or an Event of Default under any of the Loan
Documents shall have occurred, then, in addition to any other rights and
remedies provided for herein and in any other instrument or agreement
securing, evidencing or relating to the Obligations, or that may otherwise
be available, GMAC may, without any demand, advertisement or notice (except
as expressly provided for below in this Section 8(b) or by applicable law),
exercise all the rights and remedies of a secured party under the UCC, and
in addition may sell, lease, assign, give option or options to purchase, or
otherwise dispose of the Collateral, or any part thereof, as hereinafter
provided. The Collateral may be sold or otherwise disposed of in one or
more sales, at
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public or private sale, conducted by any officer or agent of, or auctioneer
or attorney for, GMAC, at any exchange or broker's board or at GMAC's
place of business or elsewhere, for cash, upon credit or for other
property, for immediate or future delivery, and at such price or prices
and on such terms as GMAC shall, in its sole discretion, deem
appropriate. GMAC may be the purchaser of any or all of the Collateral
so sold at a sale and thereafter may hold the same, and the obligations
of the Pledgor and/or the Partnership, to such purchaser may be applied
as a credit against the purchase price. GMAC may, in its sole
discretion, at any such sale restrict the prospective bidders or
purchasers as to their number, nature of business and investment
intention. Upon any such sale, GMAC shall have the right to deliver,
assign and transfer to the purchaser thereof (including GMAC) the
Collateral so sold. Each purchaser (including GMAC) at any such sale
shall hold the Collateral so sold, absolutely free from any claim or
right of whatsoever kind, including any equity or right of redemption,
of the Pledgor, and the Pledgor hereby specifically waives, to the
fullest extent it may lawfully do so, all rights of redemption, stay or
appraisal that it has or may have under any rule of law or statute now
existing or hereafter adopted. The Pledgor agrees that GMAC need not
give more than 10 days prior notice of the time and place of any public
sale or of the time after which a private sale or other intended
disposition is to take place and that such notice is reasonable
notification of such matters. No notification need be given to the
Pledgor if it has signed after the occurrence of a default or an Event
of Default under any of the Loan Documents a statement renouncing or
modifying any right to notification of sale or other intended
disposition. Any such public sale shall be held at such time or times
within ordinary business hours as GMAC shall fix in the notice of such
sale. At any such sale, the Collateral may be sold in one lot as an
entirety or in separate parcels. GMAC shall not be obligated to make
any sale pursuant to any such notice. GMAC may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed
for such sale, and any such sale may be made at any time or place to
which the same may be so adjourned without further notice or
publication. In case of any sale of all or any part of the Collateral
on credit or for future delivery, the Collateral so sold may be retained
by GMAC until the full selling price is paid by the purchaser thereof,
but GMAC shall not incur any liability in case of the failure of such
purchaser to take up and pay for the Collateral so sold, and, in case of
any such failure, such Collateral may again be sold pursuant to the
provisions hereof.
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(c) If a default or an Event of Default under any of the Loan
Documents shall have occurred, instead of exercising the power of sale
provided in Section 8(b) hereof, GMAC may proceed by a suit or suits at
law or in equity to foreclose the pledge and security interest under
this Agreement and sell the Collateral or any portion thereof under a
judgment or decree of a court or courts of competent jurisdiction.
(d) GMAC, as attorney-in-fact pursuant to Section 6 hereof, may,
in the name and stead of the Pledgor, make and execute all conveyances,
assignments and transfers of the Collateral sold pursuant to Section
8(b) or Section 8(c) hereof, and, to the extent permitted by applicable
law, the Pledgor hereby ratifies and confirms all that GMAC, as such
attorney-in-fact, shall do by virtue hereof. Nevertheless, the Pledgor
shall, if so requested by GMAC, ratify and confirm any sale or sales by
executing and delivering to GMAC, or to such purchaser or purchasers,
all such instruments as may, in the judgment of GMAC, be advisable for
the purpose.
(e) The receipt of GMAC for the purchase money paid at any such
sale made by it pursuant to Section 8(b) or 8(c) hereof shall be a
sufficient discharge therefor to any purchaser of the Collateral, or any
portion thereof, sold as aforesaid; and no such purchaser (or the
representatives or assigns of such purchaser), after paying such
purchase money and receiving such receipt, shall be bound to see to the
application of such purchase money or any part thereof or in any manner
whatsoever be answerable for any loss, misapplication or non-application
of any such purchase money, or any part thereof, or be bound to inquire
as to the authorization, necessity, expediency or regularity of any such
sale.
(f) GMAC shall not incur any liability as a result of the sale of
the Collateral, or any part thereof, at any private sale pursuant to
Section 8(b) hereof conducted in a commercially reasonable manner and in
accordance with applicable law. The Pledgor hereby waives, to the
fullest extent permitted by applicable law, all claims, damages and
demands against GMAC arising out of the repossession or retention of the
Collateral or the sale of the Collateral pursuant to Section 8(b) or
Section 8(c) hereof, including, without limitation, any claims against
GMAC arising by reason of the fact that the price at which the
Collateral, or any part thereof, may have been sold at a private sale
was less than the price that might have been obtained at a public sale
or was less than the aggregate amount of the Obligations, even if GMAC
accepts the first offer received
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that GMAC in good xxxxx xxxxx to be commercially reasonable under the
circumstances and does not offer the Collateral to more than one offeree.
To the fullest extent permitted by law, the Pledgor shall have the burden
of proving that any such sale of the Collateral was conducted in a
commercially unreasonable manner.
(g) If GMAC shall demand possession of the Collateral or any part
thereof in connection with its rights pursuant to Section 8(b) or Section
8(c) hereof, the Pledgor will, at its own expense, forthwith cause such
Collateral or any part thereof designated by GMAC to be assembled and made
available and/or delivered to GMAC at any place reasonably designated by
GMAC.
(h) No sale or other disposition of all or any part of the
Collateral by GMAC pursuant to this Section 8 shall be deemed to relieve
the Partnership of its Obligations in respect of any Obligations except to
the extent the proceeds thereof are applied by GMAC to the payment of such
Obligations.
(i) if a default or an Event of Default under any of the Loan
Documents shall have occurred, GMAC (i) may (but need not), upon notice to
the Pledgor, exercise all voting and other rights of the Pledgor as a
general partner of the Partnership and exercise all other rights provided
under the Partnership Agreement, and (ii) shall receive all permitted
distributions, if any, made for the account of the Pledgor under the
Partnership Agreement.
SECTION 9 WAIVER. To the fullest extent it may lawfully so agree, the
Pledgor agrees that it will not at any time insist upon, claim, plead, or take
any benefit or advantage of any appraisement, valuation, stay, extension,
moratorium, redemption, or similar law now or hereafter in force in order to
prevent, delay, or hinder the enforcement hereof or the absolute sale of any
part of the Collateral. The Pledgor for itself and all who claim through it, so
far as it or they now or hereafter lawfully may do so, hereby waives the benefit
of all such laws, and all right to have the Collateral marshalled upon any
foreclosure hereof, and agrees that any court having jurisdiction to foreclose
this Agreement may order the sale of the Collateral as an entirety. Without
limiting the generality of the foregoing, the Pledgor hereby: (a) authorizes
GMAC, in its sole discretion and without notice to or demand upon the Pledgor
and without otherwise affecting the obligations of the Pledgor hereunder or in
respect of the Obligations, from time to time to take and hold other collateral
(in addition to the Collateral) for payment of any Obligations, or any part
thereof, and to exchange, enforce or release such other collateral or any part
thereof and to accept
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and hold any endorsement or guarantee of payment of the Obligations or any part
thereof and to release or substitute any endorser or guarantor or any other
person or entity granting security for or in any other way obligated upon the
obligations or any part thereof; and (b) waives and releases any and all right
to require GMAC to collect any of the Obligations from any specific item or
items of the Collateral or from any other party liable as guarantor or in any
other manner in respect of any of the Obligations or from any collateral (other
than such Collateral) for any of the Obligations.
SECTION 10 INDEMNITY. The Pledgor shall indemnify, defend with counsel
reasonably acceptable to and hold harmless GMAC from and against any and all
claims, losses and liabilities growing out of or resulting from (i) this
Agreement (including, without limitation, enforcement of this Agreement), (ii)
any refund or adjustment (including, without limitation, any interest thereon)
of any amount paid or payable in accordance with the terms hereof to GMAC in
respect of any Collateral after the occurrence of a default or an Event of
Default under any of the Loan Documents, (iii) any delay in paying any and all
excise, sales or other similar taxes which may be payable or determined to be
payable with respect to any of the Collateral, (iv) any delay in complying with
any legal requirements applicable to any of the Collateral and (v) the
transactions contemplated by this Agreement, but excluding any such claims,
losses or liabilities found by a final order of a court of competent
jurisdiction to result from GMAC's gross negligence or wilful misconduct.
SECTION 11 AMENDMENTS; ETC. No amendment or waiver of any provision of
this Agreement or consent to any departure by the Pledgor from the terms of this
Agreement shall in any event be effective unless the same shall be in writing
and signed by the Pledgor and GMAC and then such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
SECTION 12 NOTICES. All notices, demands and other communications
hereunder shall be in writing and sent in the manner set forth in the Deed of
Trust, to the addresses of the parties set forth on page 1 of this Agreement.
Such notices, demands, and other communications shall be effective as set forth
in the Deed of Trust. Each party may change the address to which notices to it
are to be sent by written notice given to the other in accordance with this
paragraph.
SECTION 13 CONTINUING PLEDGE AND SECURITY INTEREST. This Agreement
shall be a continuing one and all representations, warranties, covenants,
undertakings, obligations, consents, waivers and agreements of the Pledgor
herein shall survive the date of this Agreement and shall continue in full
force and
14
effect until the earlier to occur of (i) the indefeasible payment in full of all
of the Obligations, or (ii) the termination of the Obligations; at which time
GMAC shall release this Agreement and make any appropriate filings to reflect
such release.
SECTION 14 CHOICE OF LAW; CONSENT TO JURISDICTION. EACH OF THE TERMS
AND PROVISIONS OF THIS AGREEMENT SHALL BE GOVERNED BY, INTERPRETED, CONSTRUED
AND ENFORCED PURSUANT TO AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
AT GMAC'S OPTION, THE PLEDGOR AGREES THAT ANY CONTROVERSY ARISING UNDER OR IN
RELATION TO THIS AGREEMENT SHALL BE LITIGATED IN THE COMMONWEALTH OF
PENNSYLVANIA. AT GMAC'S OPTION, THE LOCAL AND FEDERAL COURTS AND AUTHORITIES
WITH JURISDICTION IN THE COMMONWEALTH OF PENNSYLVANIA SHALL HAVE JURISDICTION
OVER ALL CONTROVERSIES WHICH MAY ARISE UNDER OR IN RELATION TO THIS AGREEMENT.
THE PLEDGOR IRREVOCABLY CONSENTS TO SERVICE, JURISDICTION, AND VENUE OF SUCH
COURTS FOR ANY LITIGATION ARISING FROM THIS AGREEMENT AND WAIVES ANY OTHER VENUE
TO WHICH IT MIGHT BE ENTITLED BY VIRTUE OF DOMICILE, HABITUAL RESIDENCE OR
OTHERWISE. NOTHING CONTAINED HEREIN, HOWEVER, SHALL PREVENT GMAC FROM BRINGING
ANY SUIT, ACTION OR PROCEEDING OR EXERCISING ANY RIGHTS AGAINST THE PLEDGOR OR
AGAINST THE COLLATERAL IN ANY OTHER JURISDICTION. INITIATING SUCH SUIT, ACTION
OR PROCEEDING OR TAKING SUCH ACTION IN ANY OTHER JURISDICTION SHALL IN NO EVENT
CONSTITUTE A WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF THE STATE
OF TEXAS SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF THE PLEDGOR AND GMAC AS
PROVIDED HEREIN OR THE SUBMISSION HEREIN BY THE PLEDGOR TO PERSONAL JURISDICTION
WITHIN THE COMMONWEALTH OF PENNSYLVANIA. THE FOREGOING PROVISIONS WERE
KNOWINGLY, WILLINGLY AND VOLUNTARILY AGREED TO BY THE PLEDGOR UPON CONSULTATION
WITH INDEPENDENT LEGAL COUNSEL SELECTED BY THE PLEDGOR'S OWN FREE WILL.
SECTION 15 HEADINGS. Headings used in this Agreement are for
convenience of reference only and do not constitute part of this Agreement for
any purpose.
SECTION 16 NO WAIVER; CUMULATIVE REMEDIES; INTEGRATION. GMAC shall not
by any act (except by a written instrument pursuant to this Section), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any default or Event of Default under any of
the Loan Documents or in any breach of any of the terms and conditions hereof.
No failure to exercise, nor any delay in exercising, on the part of GMAC, any
right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by GMAC of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy which it
would
15
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any rights or remedies provided by law.
SECTION 17 GMAC'S DUTIES. The powers conferred on GMAC hereunder are
solely to protect its interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. GMAC shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral. GMAC's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the UCC or otherwise, shall
be to deal with it in the same manner as GMAC deals with similar securities and
property for its own account. Neither GMAC nor any of its directors, officers,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
the Pledgor or otherwise.
SECTION 18 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Where provisions of any
law or regulation resulting in such prohibition or unenforceability may be
waived, they are hereby waived by the Pledgor and GMAC to the full extent
permitted by law so that this Agreement shall be deemed a valid and binding
agreement, and the liens and security interests created and continued hereby
shall constitute continuing first priority liens on and first priority perfected
security interests in the Collateral, in each case enforceable in accordance
with its terms.
SECTION 19 SPECIFIC PERFORMANCE. The Pledgor hereby irrevocably
waives, to the extent that it may do so under applicable law, any defense based
on the adequacy of a remedy at law that may be asserted as a bar to the remedy
of specific performance in any action brought against the Pledgor for specific
performance of this Agreement by GMAC or in respect of all or a substantial part
of the Pledgor's assets under the bankruptcy or insolvency laws of any
jurisdiction to which the Pledgor or its assets are subject.
SECTION 20 SECURITY INTEREST ABSOLUTE. All rights of GMAC hereunder,
the liens created and continued hereby and all
16
obligations of the Pledgor hereunder shall be absolute and unconditional
irrespective of:
(a) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from any documents delivered in
connection with the transactions contemplated by the Loan Documents
including, without limitation, the Partnership Agreement; or
(b) any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to or departure from
any guaranty, for all or any of the Obligations.
SECTION 21 PRIVATE SALES. The Pledgor recognizes that GMAC may be
unable to effect a public sale of any or all the Collateral, by reason of
certain prohibitions contained in any federal or state law governing the
issuance or sale of securities and applicable state securities laws or
otherwise, and may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers which will be obliged to agree, among other
things, to acquire the Collateral for their own account for investment and not
with a view to the distribution thereof. The Pledgor acknowledges and agrees
that any such private sale may result in prices and other terms less favorable
to GMAC than if such sale were a public sale and agrees that such circumstances
shall not, in and of themselves, result in a determination that such sale was
not made in a commercially reasonable manner. GMAC shall be under no obligation
to delay a sale of any of the Collateral for the period of time necessary to
permit the Partnership to register for public sale under any federal or state
law governing the issuance or sale of securities, even if the Partnership would
agree to do so.
SECTION 22 REGISTRATION OF PLEDGE. Concurrently with the execution of
this Agreement, the Pledgor will send to the Partnership written instructions
substantially in the form of EXHIBIT A hereto and shall cause the Partnership
to, and the Partnership shall, deliver to GMAC an Initial Transaction Statement
in the form of EXHIBIT B hereto confirming that the Partnership has registered
on its books the pledge effected by this Agreement.
SECTION 23 REINSTATEMENT. This Agreement shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by GMAC upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Pledgor or the Partnership or upon or as a
result of the appointment of a receiver, intervenor or
17
conservator of, or trustee or similar officer for, the Pledgor or the
Partnership, or any substantial part of their property, or otherwise, all as
though such payments had not been made.
SECTION 24 POWERS COUPLED WITH AN INTEREST. All authorizations,
agencies and powers herein contained with respect to the Collateral are
irrevocable and are coupled with an interest.
SECTION 25 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 26 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, the Pledgor and GMAC have caused this Agreement to be
duly executed and delivered as of the date first above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
AIMCO LT, L.P., a Delaware limited partnership
By: AIMCO HOLDINGS, L.P., a
Delaware limited partnership,
its general partner
By: AIMCO HOLDINGS QRS, INC.,
a Delaware corporation,
its general partner
By: /s/ X. Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: VP
-----------------------------
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ACKNOWLEDGMENT AND CONSENT
XXXXXXX LIMITED PARTNERSHIP, an Illinois limited partnership (the
"PARTNERSHIP"), the Partnership referred to in the foregoing General Partner
Pledge and Security Agreement (the "PLEDGE"), hereby acknowledges receipt of a
copy thereof and agrees to be bound thereby and to comply with the terms thereof
insofar as such terms are applicable to it.
The Partnership also agrees if a default or an Event of Default under any
of the Loan Documents (as defined in the Pledge) shall occur to pay to GMAC
Commercial Mortgage Corporation ("GMAC") all amounts then due and thereafter as
they become due to AIMCO LT, L.P., in its capacity as general partner of the
Partnership, until the Obligations (as defined in the Pledge) are no longer in
force. The Partnership further agrees that GMAC will not have any of the
obligations of a general partner of the Partnership unless GMAC affirmatively
elects in writing to undertake such obligations by becoming a general partner in
the Partnership in accordance with the terms of the Pledge.
December 2, 1996
XXXXXXX LIMITED PARTNERSHIP, an Illinois limited
partnership
By: AIMCO LT, L.P., a Delaware limited
partnership, its general partner
By: AIMCO HOLDINGS, L.P., a Delaware limited
partnership, its general partner
By: AIMCO HOLDINGS QRS, INC.,
a Delaware corporation,
its general partner
By: /s/ X. Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: VP
-----------------------------
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