AMENDED AND RESTATED GENERAL
PARTNER PLEDGE AND SECURITY AGREEMENT
This Amended and Restated General Partner Pledge and Security
Agreement is made and entered into as of this 2nd day of December, 1996 by and
between AIMCO LT, L.P., a Delaware limited partnership ("PLEDGOR"), and GMAC
COMMERCIAL MORTGAGE CORPORATION, a California corporation ("GMAC").
BACKGROUND
GMAC is the holder of a Note from Pledgor (the "ORIGINAL NOTE") dated
November 14, 1996 in the principal amount of $6,317,000. As security for the
payment and performance by Pledgor of its obligations under the Original Note,
Pledgor executed and delivered to GMAC, among other things, a General Partner
Pledge and Security Agreement dated November 14, 1996, (the "ORIGINAL PLEDGE").
The aforesaid loan has been amended and restated pursuant to an
Amended and Restated Note between Pledgor and GMAC of even date herewith.
Accordingly, the parties desire to amend and restate the Original Pledge in
connection with such Amended and Restated Note.
NOW, THEREFORE, intending to be legally bound, the parties agree that
the Original Pledge is hereby amended and restated in its entirety to read as
follows:
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GENERAL PARTNER
PLEDGE AND SECURITY AGREEMENT
(GP LOAN)
THIS PLEDGE AND SECURITY AGREEMENT dated as of December 2, 1996, made by
AIMCO LT, L.P., a Delaware limited partnership (the "PLEDGOR"), having an
address at 1873 South Bellaire Street, Denver, Colorado 80222, in favor of GMAC
COMMERCIAL MORTGAGE CORPORATION, a California corporation ("GMAC"), having an
address at 650 Dresher Road, P.O. Box 1015, Horsham, PA 19044-8015.
W I T N E S S E T H:
WHEREAS, the Pledgor is a general partner of RC Associates ("RC"), Highland
Park Partners, Woodland Ridge II Partners Limited Partnership ("WOODLAND"),
Woodhill Associates ("WOODHILL"), Southridge Associates ("SOUTHRIDGE"),
Meadowbrook Drive Limited Partnership ("MEADOWBROOK"), Greentree Associates
("GREENTREE"), Meadows Limited Partnership ("MEADOWS"), Walnut Springs Limited
Partnership, Heather Associates, Copper Chase Partners and Cypress Landing
Limited Partnership, each an Illinois limited partnership (each, individually, a
"PARTNERSHIP", and collectively, the "PARTNERSHIPS");
WHEREAS, GMAC has made a loan to the Pledgor in the principal amount of
$25,615,200 (the "LOAN");
WHEREAS, the Loan is evidenced by an Amended and Restated Note (the "NOTE")
of even date herewith issued by the Pledgor and is secured by, among other
things, an Amended and Restated Pledge and Security Agreement (the "PLEDGE") of
even date herewith. The Note, the Pledge and all other documents executed in
connection with the Loan are hereinafter collectively referred to as the "LOAN
DOCUMENTS"; and
WHEREAS, to secure the obligations of the Pledgor under the Loan Documents,
the Pledgor has agreed to execute and deliver this Agreement;
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 Commonwealth of Pennsylvania 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:
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"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 AGREEMENTS" means the respective partnership
agreements for the Partnerships.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the Commonwealth of Pennsylvania.
SECTION 2 GRANT OF SECURITY INTEREST BY PLEDGOR. The Pledgor hereby
pledges to GMAC, and grants to GMAC, a lien on, and continuing security interest
in (subject only to prior security interests and liens granted to GMAC, if any),
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 Pledgor of
its obligations under the Loan Documents:
(a) The Pledgor's general partnership interests in the Partnerships
and all of its rights as general partner under the Partnership Agreements
(including, without limitation, all of its right, title and interest as a
general partner to participate in the operation and management of the
Partnerships 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 Agreements);
(b) all Accounts arising out of its general partnership interests in
the Partnerships and the Partnership Agreements;
(c) all General Intangibles arising out of its general partnership
interests in the Partnerships and the Partnership Agreements;
(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 Partnerships and
its rights as general partner under the Partnership Agreements;
(e) any other property of the Partnership to which the Pledgor now
or in the future may be entitled in its capacity
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as a general partner of the Partnerships 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 Partnerships against
the Partnerships and/or their 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
Agreements 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 Partnerships 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 Agreements, or any of them, 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 any of the Partnerships, or (b) to constitute GMAC a partner
of the Partnerships.
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(b) PROCEEDS. Subject to Section 6 hereof, GMAC hereby authorizes
the Pledgor to collect all Accounts arising out of the Partnership
Agreements in respect of its general partnership interests in the
Partnerships. 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, and other liens in favor of GMAC. The
Pledgor has all requisite power and authority and the legal right to pledge
to GMAC, and to grant to GMAC, a second priority lien on and continuing
second priority security interest in the Collateral relating to RC,
Woodland, Woodhill, Meadowbrook, Southridge, Greentree and Meadows and a
first priority lien on and continuing first priority security interest in
the remaining Collateral. GMAC acknowledges that the Pledgor has
previously granted GMAC a first priority lien on and a continuing first
priority security interest in certain of the Collateral as security for
certain obligations to GMAC of parties related to the Pledgor. 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 any of the Partnerships or the Pledgor or restriction binding
on or affecting any of the Partnerships 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.
(b) SECURITY INTEREST. The security interests granted and continued
pursuant to this Agreement constitute perfected first or second priority
security interests, as applicable, 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
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execution of financing statements for filing in the appropriate filing
offices in all appropriate public offices, has been or will be duly
taken.
(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 any of the
Partnership Agreements.
(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.
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(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 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 AGREEMENTS. 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 any of the Partnership
Agreements 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 PARTNERSHIPS. 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 any of the
Partnerships or the other Collateral. Any sale, assignment, transfer,
pledge or encumbrance of the Pledgor's interest in any of the Partnerships
in violation of the foregoing provisions of this Section 5(g) shall be null
and void.
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(h) BANKRUPTCY OF THE PARTNERSHIPS. The Pledgor shall not
authorize, seek to cause or permit any of the Partnerships 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
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) 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 qualification 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 Partnerships.
(j) 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.
(k) COMPLIANCE WITH LAWS. The Pledgor shall comply with all legal
requirements in connection with its business as a general partner of the
Partnerships.
(l) NOTICE OF DISSOLUTION. The Pledgor will forthwith upon learning
of the occurrence of any event which would cause termination and/or
dissolution of any of the Partnerships, 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
Partnerships;
(ii) to the extent that the Pledgor would have the right to do so
under any of the Partnership Agreements, 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 any of the Partnership Agreements or
any Account, Instrument or General Intangible arising thereunder or out
of the Pledgor's general partnership interests in any of the
Partnerships 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 any of the Partnership Agreements or any Account,
Instrument or General Intangible arising thereunder or out of any of
the Pledgor's general partnership interests in the Partnerships
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 Agreements 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 any of the Partnerships 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 any of the
Partnerships, 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 faith deems 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 Agreements, and (ii) shall receive all permitted
distributions, if any, made for the account of the Pledgor under the
Partnership Agreements.
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
14
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 ledgor 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 Pledge, 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 Pledge. 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
15
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. Notwithstanding
anything in the Loan Documents to the contrary, this Agreement shall be governed
by, interpreted, construed and enforced pursuant to and in accordance with the
laws of the Commonwealth of Pennsylvania (excluding the law applicable to
conflicts or choice of law) except to the extent as may be expressly provided
otherwise in the Pledge. The Pledgor agrees that, at GMAC's option, any
controversy arising under or in relation to this Agreement or any other Loan
Documents shall be litigated in the Commonwealth of Pennsylvania. At GMAC's
option, the Court of Common Pleas for Montgomery County, Pennsylvania and the
federal court for the Eastern District of Pennsylvania, shall have jurisdiction
over all controversies which may arise under or in relation to this Agreement,
including, without limitation, those controversies relating to the execution,
jurisdiction, breach, enforcement or compliance with this Agreement or any other
issue arising under, related to, or in connection with any of the other Loan
Documents. The Pledgor irrevocably consents to service, jurisdiction, and venue
of such courts for any litigation arising from this Agreement or any of the
other Loan Documents, 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 any property 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 Commonwealth of Pennsylvania
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 counsel.
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
16
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 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 second priority liens on and second priority
perfected security interests in the Collateral, in each case enforceable in
accordance with its terms and subject only to first priority liens and security
interests of GMAC.
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
17
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 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 any of the Partnerships 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 21 REGISTRATION OF PLEDGE. Concurrently with the execution of
this Agreement, the Pledgor will send to the Partnerships written instructions
substantially in the form of EXHIBIT A hereto and shall cause the Partnerships
to, and the Partnerships shall, deliver to GMAC Initial Transaction Statements
in the form of EXHIBIT B hereto confirming that the Partnerships have registered
on their books the pledge effected by this Agreement.
SECTION 22 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 any of the Partnerships or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the Pledgor or any of the Partnerships, or
any substantial part of their property, or otherwise, all as though such
payments had not been made.
SECTION 23 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.
18
SECTION 24 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 25 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 Amended and
Restated Agreement to be duly executed and delivered as of the date first above
written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Jerome R. Prassass
---------------------------------
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/ H. Alcock
----------------------------------------
Name: Harry Alcock
--------------------------------------
Title: VP
-------------------------------------
19
ACKNOWLEDGMENT AND CONSENT
The undersigned, which are the Partnerships referred to in the foregoing
Amended and Restated General Partner Pledge and Security Agreement (the
"PLEDGE"), hereby acknowledge receipt of a copy thereof and agree to be bound
thereby and to comply with the terms thereof insofar as such terms are
applicable to us.
The undersigned also agree that if a default or an Event of Default under
any of the Loan Documents (as defined in the Note) 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
undersigned, until the Obligations (as defined in the Pledge) are no longer in
force. The undersigned further agree that GMAC will not have any of the
obligations of a general partner of any of the undersigned unless GMAC
affirmatively elects in writing to undertake such obligations by becoming a
general partner in the undersigned in accordance with the terms of the Pledge.
December 2, 1996
RC ASSOCIATES, 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/ H. Alcock
----------------------------------------
Name: Harry Alcock
--------------------------------------
Title: VP
-------------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
20
HIGHLAND PARK PARTNERS, 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/ H. Alcock
---------------------------------------------
Name: Harry Alcock
-------------------------------------------
Title: VP
------------------------------------------
WOODLAND RIDGE II PARTNERS 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/ H. Alcock
---------------------------------------------
Name: Harry Alcock
-------------------------------------------
Title: VP
------------------------------------------
21
WOODHILL ASSOCIATES, 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/ H. Alcock
---------------------------------------------
Name: Harry Alcock
-------------------------------------------
Title: VP
------------------------------------------
SOUTHRIDGE ASSOCIATES, 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/ H. Alcock
---------------------------------------------
Name: Harry Alcock
-------------------------------------------
Title: VP
------------------------------------------
22
MEADOWBROOK DRIVE 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/ H. Alcock
---------------------------------------------
Name: Harry Alcock
-------------------------------------------
Title: VP
------------------------------------------
GREENTREE ASSOCIATES, 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/ H. Alcock
---------------------------------------------
Name: Harry Alcock
-------------------------------------------
Title: VP
------------------------------------------
23
MEADOWS 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/ H. Alcock
---------------------------------------------
Name: Harry Alcock
-------------------------------------------
Title: VP
------------------------------------------
WALNUT SPRINGS 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/ H. Alcock
---------------------------------------------
Name: Harry Alcock
-------------------------------------------
Title: VP
------------------------------------------
24
HEATHER ASSOCIATES, 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/ H. Alcock
---------------------------------------------
Name: Harry Alcock
-------------------------------------------
Title: VP
------------------------------------------
COPPER CHASE PARTNERS, 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/ H. Alcock
---------------------------------------------
Name: Harry Alcock
-------------------------------------------
Title: VP
------------------------------------------
25
CYPRESS LANDING 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/ H. Alcock
---------------------------------------------
Name: Harry Alcock
-------------------------------------------
Title: VP
------------------------------------------
26