EXHIBIT 10.18
COLLATERAL ASSIGNMENT OF
PARTNERSHIP INTEREST AND PLEDGE AGREEMENT
THIS COLLATERAL ASSIGNMENT OF PARTNERSHIP INTEREST AGREEMENT AND
PLEDGE AGREEMENT ("Agreement") is executed this ____ day of ____________,
200___ by and between JPI Multifamily Investments L.P., a Delaware limited
partnership (the "Pledgor") and Education Realty Operating Partnership, LP, a
Delaware limited partnership (the "Pledgee").
FACTUAL BACKGROUND
Pledgor owns ________________ (_____) units of limited partnership
interest (the "Units") in Pledgee. To induce Pledgee to enter into that certain
Revolving Loan Agreement of even date herewith (the "Revolving Loan Agreement")
by and among Pledgee (as Lender) and Pledgor (as Borrower), Pledgor has agreed
to secure all borrowings under the Revolving Loan Agreement and to grant
Pledgee a security interest in and with respect to all of the Units.
Capitalized terms used but not defined herein shall have the meaning ascribed
to such terms in the Revolving Loan Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties covenant and agree as
follows:
1. AGREEMENT TO PLEDGE.
(a) Pledge. As collateral security for payment and performance in
full of all the Obligations (as defined below), Pledgor hereby pledges,
hypothecates, assigns, transfers, sets over and delivers unto Pledgee, and
hereby grants to Pledgee, a continuing security interest in all of the Units,
and all proceeds thereof in whatever form and all cash, additional securities
or other property at any time and from time to time receivable or otherwise
distributed in respect of or in exchange for any or all of such Units and other
membership and ownership interests (such membership and ownership interests,
securities, proceeds thereof, cash, additional securities and other property
are hereinafter collectively referred to as the "Pledged Securities").
(b) Obligations Secured. This Pledge Agreement is made, and the
security interests created hereby is granted to the Pledgee to secure prompt
payment and performance when due of all liabilities of Pledgor under that
certain Secured Non-Recourse Revolving Note of even date issued by Pledgor to
Pledgee, that certain Revolving Loan Security Agreement of even date between
Pledgor as Borrower and Pledgee as Lender and under this Agreement (all such
liabilities and obligations of Pledgor being the "Obligations").
(c) Proceeds of Pledged Securities. After a default, if the
Pledgor shall become entitled to receive or shall receive, in connection with
any of the Pledged Securities, any:
(i) Certificate representing such Pledged Securities,
including but not limited to any certificate representing a dividend
or in connection with any increase or reduction of capital,
reclassification, merger, consolidation, sale of assets, combination
of shares, stock split, spin-off or split-off;
(ii) Option, warrant, or right, whether as an addition to
or in substitution or in exchange for any of the Pledged Securities,
or otherwise;
(iii) Dividend or distribution payable in property,
including securities issued by other than the issuer of any of the
Pledged Securities; or
(iv) Dividends or distributions of any sort, then:
the Pledgor shall accept the same as the Pledgee's agent, in trust for the
Pledgee, and shall deliver them forthwith to the Pledgee in the exact form
received with, as applicable, the Pledgor's endorsement when necessary, or
appropriate stock powers duly executed in blank, to be held by the Pledgee,
subject to the terms hereof, as part of the Pledged Securities.
(d) Sale Upon Default. Upon the occurrence of an Event of
Default, the Pledgee may, without demand of performance or other demand,
advertisement, or notice of any kind (except the notice specified below of time
and place of public or private sale) to or upon the Pledgor or any other person
(all of which are, to the extent permitted by law, hereby expressly waived),
forthwith realize upon the Pledged Securities or any part thereof, and may
forthwith, or agree to, retain the Pledged Securities in satisfaction of the
Obligations, or sell or otherwise dispose of and deliver the Pledged Securities
or any part thereof or interest therein, in one or more parcels at public or
private sale or sales, at any exchange, broker's board or at any of the
Pledgee's offices or elsewhere, at such prices and on such terms (including,
but without limitation, a requirement that any purchaser of all or any part of
the Pledged Securities purchase the shares constituting the Pledged Securities
for investment and without any intention to make a distribution thereof) as he
may deem best, for cash or on credit, or for future delivery without assumption
of any credit risk, with the right to the Pledgee or any purchaser to purchase
upon any such sale the whole or any part of the Pledged Securities free of any
right or equity of redemption in the Pledgor, which right or equity is hereby
expressly waived and released.
(e) Application of Sale Proceeds. The proceeds of any such
disposition or other action by the Pledgee shall be applied as follows:
(i) First, to the reasonable costs and expenses incurred
in connection therewith or incidental thereto or to the care or
safekeeping of any of the Pledged Securities or in any way relating to
the rights of the Pledgee hereunder, including reasonable attorneys'
fees and legal expenses;
(ii) Second, to the repayment of the Obligations;
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(iii) Third, to the payment of any other amounts required
by applicable law; and
(iv) Fourth, to the Pledgor to the extent of any surplus
proceeds.
(f) Power of Attorney. The Pledgee shall have the right, for and
in the name, place and stead of the Pledgor, and the Pledgor has granted
Pledgee power of attorney, as set forth in the Revolving Loan Agreement, to
execute endorsements, assignments or other instruments of conveyance or
transfer with respect to all or any of the Pledged Securities.
(g) Private Sale. The Pledgor recognizes that the Pledgee may be
unable to effect a public sale of all or a part of the Pledged Securities and
may be compelled to resort to one or more private sales to a restricted group
of purchasers who will be obligated to agree, among other things, to acquire
the Pledged Securities for their own account, for investment and not with a
view to the distribution or resale thereof. The Pledgor acknowledges that any
such private sales may be at prices and on terms less favorable to the Pledgee
than those of public sales, and agrees that such private sales shall be deemed
to have been made in a commercially reasonable manner and that the Pledgee has
no obligation to delay sale of any Pledged Securities to permit the issuer
thereof to register such Pledged Securities for public sale under the
Securities Act of 1933.
2. NOTICES IN REGARD OF PLEDGED SECURITIES.
The Pledgor will promptly deliver to the Pledgee all written notices,
and will promptly give the Pledgee written notice of any other notices,
received by him with respect to Pledged Securities, and the Pledgee will
promptly give like notice to the Pledgor of any such notices received by him or
his nominee.
3. FURTHER ASSURANCES.
The Pledgor shall at any time, and from time to time, upon the written
request of the Pledgee, execute and deliver such additional documents,
conveyances, assignments, agreements and instruments and do such further acts
and things as the Pledgee may reasonably request to effect the purposes of this
Agreement.
4. POWER OF ATTORNEY.
Pursuant to the terms of the Revolving Loan Agreement, the Pledgor has
appointed the Pledgee as the Pledgor's attorney-in-fact for the purpose of
carrying out the provisions of this Agreement and taking any action and
executing any instrument which either may deem necessary or advisable to
accomplish the purposes hereof after the occurrence of a default. Without
limiting the generality of the foregoing, after a default the Pledgee shall
have the right and power to receive, endorse and collect all checks and other
orders for the payment of money made payable to the Pledgor representing any
interest or dividend or other distribution payable in respect of the Pledged
Securities or any part thereof and to give full discharge for the same.
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4. NON-RECOURSE.
Unless Pledgor shall exercise Pledgor's option to guarantee a portion
of the indebtedness represented by this Note in accordance with the Revolving
Loan Agreement, the sole recourse of Lender with respect to the Obligations
shall be against the collateral pledged pursuant to this Agreement and Borrower
shall have no liability in excess of such amounts.
5. TERMINATION.
This Agreement shall terminate upon termination of all the
Obligations, at which time the Pledgee will, upon Pledgor's written request
execute and deliver to the Pledgor such documents as the Pledgor shall
reasonably request to evidence the termination of the security interests or
release of the Pledged Securities, as the case may be.
6. GENERAL.
(a) Beyond the exercise of reasonable care to assure the safe
custody of the Pledged Securities while held hereunder, the Pledgee shall have
no duty or liability to preserve rights pertaining thereto and shall be
relieved of all responsibility for the Pledged Securities upon surrendering it
or them or tendering surrender of it or them to the Pledgor.
(b) No course of dealing between the Pledgor and the Pledgee, nor
any failure to exercise, nor any delay in exercising, any right, power or
privilege of the Pledgee hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or
thereunder preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
(c) The rights and remedies provided herein are cumulative and
are in addition to and not exclusive of any rights or remedies provided by law,
including, but without limitation, the rights and remedies of a secured party
under the Uniform Commercial Code.
(d) The provisions of this Agreement are severable, and if any
clause or provision shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision or part thereof in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdiction or any
other clause or provision in this Agreement in any jurisdiction.
(e) Any notice required or permitted by this Agreement shall be
effective if mailed, postage prepaid, by registered or certified mail, return
receipt requested, or if delivered to the Pledgor or Pledgee at their addresses
specified below, or at such other addresses as the Pledgor or the Pledgee may
theretofore have designated in writing and given in like manner to the other.
(f) This Agreement shall inure to the benefit of and shall be
binding upon the successors and assigns of the parties hereto.
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(g) This Agreement shall be construed in accordance with the
substantive law of the State of Texas without regard to principles of conflicts
of law and is intended to take effect as an instrument under seal.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date and year first above written.
Signed, sealed, sworn to and PLEDGOR:
delivered in the presence of:
JPI MULTIFAMILY INVESTMENTS,
--------------------------------- L.P., a Delaware limited
Witness partnership
By:
--------------------------------- New GP, LLC
Notary Public its General Partner
Notarized this _____ day of By:
________, 20___. ---------------------------
Name:
My commission expires: --------------------------
----------- Title:
-------------------------
(NOTARIAL SEAL) Address:
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Signed, sealed, sworn to and PLEDGEE:
delivered in the presence of:
EDUCATION REALTY OPERATING
--------------------------------- PARTNERSHIP, LP
Witness
By: Education Realty OP GP,
Inc., its General Partner
---------------------------------
Notary Public
-------------------------[SEAL]
Notarized this _____ day of Name:
________, 20___. --------------------------
Title:
My commission expires: -------------------------
----------- Address:
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(NOTARIAL SEAL)
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SCHEDULE I
Number and Description of
Issuer Pledged Securities Name of Holder
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