EXHIBIT 10.2
BORROWERS PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "AGREEMENT") is dated as of November 6,
2001 and entered into by and among AIMCO PROPERTIES, L.P., a Delaware limited
partnership ("AIMCO"), AIMCO/BETHESDA HOLDINGS, INC., a Delaware corporation
("AIMCO/BETHESDA"), NHP MANAGEMENT COMPANY, a District of Columbia corporation
("NHP MANAGEMENT") and AIMCO HOLDINGS, L.P., a Delaware limited partnership
("AIMCO HOLDINGS") (AIMCO, AIMCO/Bethesda, NHP Management and AIMCO Holdings
are collectively referred to as "PLEDGORS"), and BANK OF AMERICA, N.A., as
Administrative Agent for and representative of (in such capacity herein called
"SECURED PARTY") the financial institutions ("LENDERS") party to the Credit
Agreement (as hereinafter defined; the terms defined therein and not otherwise
defined herein being used herein as therein defined).
PRELIMINARY STATEMENTS
A. Pledgors are the legal and beneficial owners of (i) the shares of
stock in one or more Persons described in Part A of Schedule I annexed hereto,
(ii) the indebtedness described in Part B of said Schedule I and issued by the
obligors named therein, and (iii) the general and limited partnership interests
and limited liability company interests described in Part C of Schedule I.
B. Secured Party and Lenders have entered into a Third Amended and
Restated Credit Agreement dated as of November 6, 2001 (said Credit Agreement,
as it may hereafter be amended, supplemented or otherwise modified from time to
time, being the "CREDIT AGREEMENT") with Pledgors pursuant to which Lenders have
made certain commitments, subject to the terms and conditions set forth in the
Credit Agreement, to extend certain credit facilities to Pledgor.
C. It is a condition precedent to the initial extensions of credit by
Lenders under the Credit Agreement that Pledgors shall have granted the security
interests and undertaken the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
Lenders to make Loans and other extensions of credit under the Credit Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, each Pledgor hereby agrees with Secured Party as
follows:
SECTION 1. PLEDGE OF SECURITY. Each Pledgor hereby pledges and assigns
to Secured Party, and hereby grants to Secured Party a security interest in, all
of such Pledgor's right, title and interest in and to the following, whether now
owned and existing or hereafter acquired and arising (the "PLEDGED COLLATERAL"):
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(a) the shares of stock represented by the certificates or other
instruments described in Part A of Schedule I annexed hereto (the "PLEDGED
SHARES"), and all dividends, distributions, returns of capital, cash, warrants,
option, rights, instruments, right to vote or manage the business of such Person
pursuant to organizational documents governing the rights and obligations of the
stockholders, and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such Pledged Shares; provided, that if the issuer of any of such Pledged
Shares is a controlled foreign corporation (used hereinafter as such term is
defined in Section 975(a) or a successor provision of the Internal Revenue
Code), the Pledged Shares shall not include any shares of stock of such issuer
in excess of the number of shares of such issuer possessing up to but not
exceeding 66% of the voting power of all classes of capital stock entitled to
vote of such issuer, and all dividends, cash, warrants, rights, instruments and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Pledged Shares;
(b) the indebtedness from time to time owed to each Pledgor evidenced
by the instruments described in Part B of Schedule I annexed hereto and issued
by the obligors named therein (the "PLEDGED DEBT"), and all interest, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Pledged Debt;
(c) all limited liability company, general partnership and limited
partnership interests, owned by each Pledgor and described in Part C of Schedule
I annexed hereto (the "PLEDGED INTERESTS"); and
(d) to the extent not covered by clauses (a), (b) and (c) above, all
proceeds of any or all of the foregoing Pledged Collateral. For purposes of this
Agreement, the term "PROCEEDS" includes whatever is receivable or received when
Pledged Collateral or proceeds are sold, exchanged, collected or otherwise
disposed of, whether such disposition is voluntary or involuntary, and includes,
without limitation, proceeds of any indemnity or guaranty payable to any Pledgor
or Secured Party from time to time with respect to any of the Pledged
Collateral; and
(e) any deposit accounts constituting the Letter of Credit Cash
Collateral Account established and maintained by Secured Party pursuant to
Section 17, together with (i) all amounts on deposit from time to time in such
deposit accounts and (ii) all interest, cash, instruments, securities and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the foregoing.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures, and the
Pledged Collateral is collateral security for, the prompt payment or performance
in full when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including the payment of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)), of all obligations and
liabilities of every nature of each Pledgor now or hereafter existing under or
arising out of or in connection with the Credit Agreement and the other Loan
Documents, together with all extensions or renewals thereof, whether for
principal, interest (including
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without limitation interest that, but for the filing of a petition in bankruptcy
with respect to any Pledgor, would accrue on such obligations, whether or not a
claim is allowed against such Pledgor for such interest in the related
bankruptcy proceeding), fees, expenses, indemnities or otherwise, whether
voluntary or involuntary, direct or indirect, absolute or contingent, liquidated
or unliquidated, whether or not jointly owed with others, and whether or not
from time to time decreased or extinguished and later increased, created or
incurred, and all or any portion of such obligations or liabilities that are
paid, to the extent all or any part of such payment is avoided or recovered
directly or indirectly from Secured Party or any Lender as a preference,
fraudulent transfer or otherwise, and all obligations of every nature of each
Pledgor now or hereafter existing under this Agreement (all such obligations of
Pledgors being the "SECURED OBLIGATIONS").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. All certificates or
instruments representing or evidencing the Pledged Collateral shall be delivered
to and held by or on behalf of Secured Party pursuant hereto and shall be in
suitable form for transfer by delivery or, as applicable, shall be accompanied
by the applicable Pledgor's endorsement, where necessary, or duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to Secured Party. Upon the occurrence and during the continuation
of an Event of Default (as defined in Section 11), Secured Party shall have the
right, without notice to any Pledgor, to transfer to or to register in the name
of Secured Party or any of its nominees any or all of the Pledged Collateral. In
addition, Secured Party shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each Pledgor represents and
warrants as follows:
(a) Due Authorization, etc. of Pledged Collateral. All of the Pledged
Shares described on Part A of Schedule I have been duly authorized and validly
issued and are fully paid and non-assessable. All of the Pledged Debt described
on Part B of said Schedule I has been duly authorized, authenticated or issued,
and delivered and is the legal, valid and binding obligation of the issuers
thereof and is not in default. All of the Persons which constitute the Pledged
Interests described on Part C of Schedule I (i) are in good standing under the
laws of the states or political subdivisions in which such Persons are organized
or incorporated, (ii) have a legal existence which has not been canceled or
revoked, and (iii) are duly authorized to transact business under the laws of
the states or political subdivisions in which such Persons are organized or
incorporated.
(b) Description of Pledged Collateral. Except as set forth in said
Schedule I, the Pledged Shares constitute all of the issued and outstanding
shares of stock of each issuer thereof (subject to the proviso to Section 1(a)
with respect to shares of a foreign controlled corporation), and there are no
outstanding warrants, options or other rights to purchase, or other agreements
outstanding with respect to, or property that is now or hereafter convertible
into, or that requires the issuance or sale of, any Pledged Shares. The Pledged
Debt constitutes all of the issued and outstanding intercompany indebtedness
evidenced by a promissory note of the respective issuers thereof owing to
Pledgor. Part A of Schedule I sets forth all of the Pledged
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Shares, Part B of said Schedule I sets forth all of the Pledged Debt, and Part C
of Schedule I sets forth all of the Pledged Interests.
(c) Ownership of Pledged Collateral. Pledgors are the legal, record and
beneficial owner of the Pledged Collateral free and clear of any Lien except for
Ordinary Course Liens and liens permitted under the Credit Agreement.
(d) Locations of Offices; Deposit Accounts. The chief place of
business, the chief executive office and the office each Pledgor keeps its
records regarding the Pledged Collateral and all originals of all chattel paper
that evidence Pledged Collateral are, as of the date hereof, and have been for
the four month period preceding the date hereof, located at the locations set
forth below on Part A of Schedule 4(d). Locations of and other information
regarding the deposit accounts maintained by the Pledgors which constitute a
Letter of Credit Cash Collateral Account, as of the date hereof, are accurately
described in Part B of Schedule 4(d) and each such deposit account of each
Pledgor is subject to a Control Agreement.
(e) Names. No Pledgor (or predecessor by merger or otherwise of such
Pledgor) has, within the four month period preceding the date hereof, had a
different name from the name of such Pledgor listed on the signature page
hereof.
(f) Governmental Authorizations. Except as otherwise provided in the
Credit Agreement, no authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required for
either (i) the pledge by Pledgors of the Pledged Collateral pursuant to this
Agreement and the grant by Pledgors of the security interest granted hereby,
(ii) the execution, delivery or performance of this Agreement by Pledgors, or
(iii) the exercise by Secured Party of the voting or other rights, or the
remedies in respect of the Pledged Collateral, provided for in this Agreement
(except as may be required in connection with a disposition of Pledged
Collateral by laws affecting the offering and sale of securities generally).
(g) Perfection. The security interests in the Pledged Collateral
granted to Secured Party hereunder constitute valid security interests in the
Pledged Collateral, securing the payment of the Secured Obligations. Upon (i)
the filing of UCC financing statements naming each Pledgor as "debtor", naming
Secured Party as "secured party" and describing the Pledged Collateral in the
applicable filing offices with respect to such Pledgor and (ii) delivery of the
certificates representing the Pledged Shares, Pledged Debt and Pledged Interests
and delivery of such instruments to Secured Party, in each case duly endorsed or
accompanied by duly executed instruments of assignment or transfer in blank, the
security interests in the Collateral covered by the UCC granted to Secured Party
will constitute perfected security interests therein prior to all other Liens,
and all filings and other actions necessary or desirable to perfect and protect
such security interests have been duly made or taken.
(h) Margin Regulations. The pledge of the Pledged Collateral pursuant
to this Agreement does not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
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(i) Other Information. All information heretofore, herein or hereafter
supplied to Secured Party by or on behalf of each Pledgor with respect to the
Pledged Collateral is accurate and complete in all respects.
SECTION 5. TRANSFERS AND OTHER LIENS; ADDITIONAL PLEDGED COLLATERAL;
ETC. Each Pledgor shall:
(a) not, except as expressly permitted by the Credit Agreement, (i)
sell, assign (by operation of law or otherwise) or otherwise dispose of, or
grant any option with respect to, any of the Pledged Collateral, (ii) create or
suffer to exist any Lien upon or with respect to any of the Pledged Collateral,
except for Liens permitted under the Credit Agreement, or (iii) permit any
issuer of Pledged Shares to merge or consolidate unless all the outstanding
capital stock of the surviving or resulting corporation is, upon such merger or
consolidation, pledged hereunder and no cash, securities or other property is
distributed in respect of the outstanding shares of any other constituent
corporation; provided, if the surviving or resulting corporation upon any such
merger or consolidation involving an issuer of Pledged Shares which is a
controlled foreign corporation is a controlled foreign corporation, then such
Pledgor shall only be required to pledge outstanding capital stock of such
surviving or resulting corporation possessing up to but not exceeding 66% of the
voting power of all classes of capital stock of such issuer entitled to vote;
(b) (i) cause each issuer of Pledged Shares not to issue any stock or
other securities in addition to or in substitution for the Pledged Shares issued
by such issuer, except to Pledgors and (ii) pledge hereunder, immediately upon
its acquisition (directly or indirectly) thereof, any and all additional shares
of stock or other securities of each issuer of Pledged Shares;
(c) pledge hereunder, immediately upon their issuance, any and all
instruments or other evidences of additional indebtedness from time to time owed
to any Pledgor by any obligor on the Pledged Debt;
(d) pledge hereunder, immediately upon acquisition or upon the
termination or waiver of any restrictions on the pledge, the hypothecation or
the transfer thereof, any and all other limited liability company, general
partnership and limited partnership interests, and any other rights or
interests, from time to time acquired by any Pledgor as Pledged Interests;
(e) promptly deliver to Secured Party all written notices received by
it with respect to the Pledged Collateral; and
(f) pay promptly when due all taxes, assessments and governmental
charges or levies imposed upon, and all claims against, the Pledged Collateral,
except to the extent the validity thereof is being contested in good faith;
provided that Pledgors shall in any event pay such taxes, assessments, charges,
levies or claims not later than five days prior to the date of any proposed sale
under any judgment, writ or warrant of attachment entered or filed against any
Pledgor or any of the Pledged Collateral as a result of the failure to make such
payment.
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SECTION 6. FURTHER ASSURANCES; PLEDGE AMENDMENTS.
(a) Each Pledgor agrees that from time to time, at the joint and
several expense of Pledgors, Pledgors will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that Secured Party may request, in order to perfect
and protect any security interest granted or purported to be granted hereby or
to enable Secured Party to exercise and enforce its rights and remedies
hereunder with respect to any Pledged Collateral. Without limiting the
generality of the foregoing, each Pledgor will: (i) execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as Secured Party
may request, in order to perfect and preserve the security interests granted or
purported to be granted hereby and (ii) at Secured Party's request, appear in
and defend any action or proceeding that may affect such Pledgor's title to or
Secured Party's security interest in all or any part of the Pledged Collateral.
Each Pledgor authorizes Secured Party to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Pledged Collateral without the signature of Pledgors. Each Pledgor agrees
that a carbon, photographic or other reproduction of this Agreement or of a
financing statement signed by such Pledgor shall be sufficient as a financing
statement and may be filed as a financing statement in any and all
jurisdictions.
(b) Each Pledgor further agrees that it will promptly at the end of
each fiscal quarter (and in no event later than 45 days after the end of such
fiscal quarter) deliver to Secured Party a Pledge Amendment, duly executed by
such Pledgor, in substantially the form of Schedule II annexed hereto (a "PLEDGE
AMENDMENT") (with an updated Schedule I, dated as of the end of such fiscal
quarter attached, thereto, in respect of the additional Pledged Shares, Pledged
Debt or Pledged Interests to be pledged pursuant to Section 5(b), (c) and (d)
this Agreement). Upon each delivery of a Pledge Amendment to Secured Party, the
representations and warranties contained in Section 4 hereof shall be deemed to
have been made by such Pledgor as to the Pledged Collateral described in such
Pledge Amendment. Each Pledgor hereby authorizes Secured Party to attach each
Pledge Amendment to this Agreement and agrees that all Pledged Shares, Pledged
Debt or Pledged Interests listed on any Pledge Amendment delivered to Secured
Party shall for all purposes hereunder be considered Pledged Collateral;
provided that the failure of any Pledgor to execute a Pledge Amendment with
respect to any additional Pledged Shares, Pledged Debt or Pledged Interests
required to be pledged pursuant to this Agreement shall not impair the security
interest of Secured Party therein or otherwise adversely affect the rights and
remedies of Secured Party hereunder with respect thereto.
SECTION 7. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) Pledgors shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of this Agreement
or the Credit Agreement; provided, however, that Pledgors shall give
Secured Party at least five Business Days' prior written notice of the
manner in which they intend to exercise, or the reasons for refraining from
exercising, any such right (it being understood, however, that neither (A)
the voting by
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any Pledgor of any Pledged Shares for or such Pledgor's consent to the
election of directors at a regularly scheduled annual or other meeting of
stockholders or with respect to incidental matters at any such meeting, nor
(B) any Pledgor's consent to or approval of any action otherwise permitted
under this Agreement and the Credit Agreement shall be deemed inconsistent
with the terms of this Agreement or the Credit Agreement within the meaning
of this Section 7(a)(i), and no notice of any such voting or consent need
be given to Secured Party);
(ii) Pledgors shall be entitled to receive and retain, and to
utilize free and clear of the lien of this Agreement, any and all
dividends, other distributions and interest paid in respect of the Pledged
Collateral; provided, however, that any and all
(A) dividends, other distributions and interest paid or
payable other than in cash in respect of, and instruments and other
property received, receivable or otherwise distributed in respect of,
or in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or payable in
cash in respect of Pledged Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid in surplus, and
(C) cash paid, payable or otherwise distributed in respect
of principal or in redemption of or in exchange for any Pledged
Collateral, shall be, and shall forthwith be delivered to Secured Party
to hold as, Pledged Collateral and shall, if received by Pledgor, be
received in trust for the benefit of Secured Party, be segregated from
the other property or funds of Pledgor and be forthwith delivered to
Secured Party as Pledged Collateral in the same form as so received
(with all necessary endorsements); and
(iii) cash paid, payable or otherwise distributed in respect of
principal or in redemption of or in exchange for any Pledged Collateral,
shall be, and shall forthwith be delivered to Secured Party to hold as,
Pledged Collateral and shall, if received by Pledgor, be received in trust
for the benefit of Secured Party, be segregated from the other property or
funds of Pledgor and be forthwith delivered to Secured Party as Pledged
Collateral in the same form as so received (with all necessary
endorsements); and
(iv) Secured Party shall promptly execute and deliver (or cause
to be executed and delivered) to Pledgors all such proxies, dividend
payment orders and other instruments as Pledgors may from time to time
reasonably request for the purpose of enabling Pledgors to exercise the
voting and other consensual rights which each Pledgor is entitled to
exercise pursuant to paragraph (i) above and to receive the dividends,
other distributions, principal or interest payments which each Pledgor is
authorized to receive and retain pursuant to paragraph (ii) above.
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(b) Upon the occurrence and during the continuation of an Event of
Default:
(i) upon written notice from Secured Party to Pledgors, all
rights of Pledgors to exercise the voting and other consensual rights with
respect to the Pledged Collateral which they would otherwise be entitled to
exercise pursuant to Section 7(a)(i) shall cease, and all such rights with
respect to the Pledged Collateral shall thereupon become vested in Secured
Party who shall thereupon have the sole right to exercise such voting and
other consensual rights;
(ii) all rights of Pledgors with respect to the Pledged
Collateral to receive the dividends, other distributions and interest
payments which they would otherwise be authorized to receive and retain
pursuant to Section 7(a)(ii) shall cease, and all such rights with respect
to the Pledged Collateral shall thereupon become vested in Secured Party
who shall thereupon have the sole right to receive and hold as Pledged
Collateral such dividends, other distributions and interest payments; and
(iii) all dividends, principal, interest payments and other
distributions which are received by Pledgors contrary to the provisions of
paragraph (ii) of this Section 7(b) shall be received in trust for the
benefit of Secured Party, shall be segregated from other funds of Pledgors
and shall forthwith be paid over to Secured Party as Pledged Collateral in
the same form as so received (with any necessary endorsements).
(c) In order to permit Secured Party to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to Section
7(b)(i) and to receive all dividends and other distributions which it may be
entitled to receive under Section 7(a)(ii) or Section 7(b)(ii), (i) Pledgors
shall promptly execute and deliver (or cause to be executed and delivered) to
Secured Party all such proxies, dividend payment orders and other instruments as
Secured Party may from time to time reasonably request and (ii) without limiting
the effect of the immediately preceding clause (i), Pledgors hereby grant to
Secured Party an irrevocable proxy to vote the Pledged Shares and to exercise
all other rights, powers, privileges and remedies to which a holder of the
Pledged Shares would be entitled (including, without limitation, giving or
withholding written consents of shareholders, calling special meetings of
shareholders and voting at such meetings), which proxy shall be effective,
automatically and without the necessity of any action (including any transfer of
any Pledged Shares constituting Pledged Collateral on the record books of the
issuer thereof) by any other Person (including the issuer of such Pledged Shares
or any officer or agent thereof), upon the occurrence of an Event of Default and
which proxy shall only terminate upon the payment in full of the Secured
Obligations.
SECTION 8. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Each Pledgor
hereby irrevocably appoints Secured Party as such Pledgor's attorney-in-fact,
with full authority in the place and stead of such Pledgor and in the name of
such Pledgor, Secured Party or otherwise, from time to time in Secured Party's
discretion to take any action and to execute any instrument that Secured Party
may deem necessary or advisable to accomplish the purposes of this Agreement,
including without limitation:
(a) to file one or more financing or continuation statements, or
amendments thereto, relative to all or any part of the Pledged Collateral
without the signature of Pledgors;
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(b) upon the occurrence and during the continuance of an Event of
Default, to ask, demand, collect, ▇▇▇ for, recover, compound, receive and give
acquittance and receipts for moneys due and to become due under or in respect of
any of the Pledged Collateral;
(c) upon the occurrence and during the continuance of an Event of
Default, to receive, endorse and collect any instruments made payable to
Pledgors representing any dividend, principal or interest payment or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same;
(d) upon the occurrence and during the continuance of an Event of
Default, to file any claims or take any action or institute any proceedings that
Secured Party may deem necessary or desirable for the collection of any of the
Pledged Collateral or otherwise to enforce the rights of Secured Party with
respect to any of the Pledged Collateral;
(e) to pay or discharge taxes or Liens (other than Liens permitted
under this Agreement or the Credit Agreement) levied or placed upon or
threatened against the Pledged Collateral, the legality or validity thereof and
the amounts necessary to discharge the same to be determined by Secured Party in
its sole discretion, any such payments made by Secured Party to become
obligations of Pledgors to Secured Party, due and payable immediately without
demand; and
(f) upon the occurrence and during the continuance of an Event of
Default, generally to sell, transfer, pledge, make any agreement with respect to
or otherwise deal with any of the Pledged Collateral as fully and completely as
though Secured Party were the absolute owner thereof for all purposes, and to
do, at Secured Party's option and Pledgors' expense, at any time or from time to
time, all acts and things that Secured Party deems necessary to protect,
preserve or realize upon the Pledged Collateral and Secured Party's security
interest therein in order to effect the intent of this Agreement, all as fully
and effectively as Pledgors might do.
SECTION 9. SECURED PARTY MAY PERFORM. If Pledgors fail to perform any
agreement contained herein, Secured Party may itself perform, or cause
performance of, such agreement, and the expenses of Secured Party incurred in
connection therewith shall be payable by Pledgors under Section 14(b).
SECTION 10. STANDARD OF CARE. The powers conferred on Secured Party
hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the exercise
of reasonable care in the custody of any Pledged Collateral in its possession
and the accounting for moneys actually received by it hereunder, Secured Party
shall have no duty as to any Pledged Collateral, it being understood that
Secured Party shall have no responsibility for (a) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to any Pledged Collateral, whether or not Secured Party has or
is deemed to have knowledge of such matters, (b) taking any necessary steps
(other than steps taken in accordance with the standard of care set forth above
to maintain possession of the Pledged Collateral) to preserve rights against any
prior parties or any other rights pertaining to any Pledged Collateral, (c)
taking any necessary steps to collect or realize upon the Secured Obligations or
any guarantee therefor, or any part thereof, or any of the Pledged Collateral,
or (d) initiating any action to protect the Pledged Collateral against
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the possibility of a decline in market value. Secured Party shall be deemed to
have exercised reasonable care in the custody and preservation of Pledged
Collateral in its possession if such Pledged Collateral is accorded treatment
substantially equal to that which Secured Party accords its own property
consisting of negotiable securities.
SECTION 11. REMEDIES.
(a) If any Event of Default (as defined in the Credit Agreement) shall
have occurred and be continuing, Secured Party may exercise in respect of the
Pledged Collateral, in addition to all other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party on default under the Uniform Commercial Code as in effect on the date
hereof in the State of California (the "UCC") (whether or not the UCC applies to
the affected Pledged Collateral), and Secured Party may also in its sole
discretion, without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or private sale,
at any exchange or broker's board or at any of Secured Party's offices or
elsewhere, for cash, on credit or for future delivery, at such time or times and
at such price or prices and upon such other terms as Secured Party may deem
commercially reasonable, irrespective of the impact of any such sales on the
market price of the Pledged Collateral. Secured Party or any Lender may be the
purchaser of any or all of the Pledged Collateral at any such sale, and Secured
Party, as agent for and representative of Lenders (but not any Lender or Lenders
in its or their respective individual capacities unless Requisite Obligees (as
defined in Section 16(a)) shall otherwise agree in writing), shall be entitled,
for the purpose of bidding and making settlement or payment of the purchase
price for all or any portion of the Pledged Collateral sold at any such public
sale, to use and apply any of the Secured Obligations as a credit on account of
the purchase price for any Pledged Collateral payable by Secured Party at such
sale. Each purchaser at any such sale shall hold the property sold absolutely
free from any claim or right on the part of Pledgors, and each Pledgor hereby
waives (to the extent permitted by applicable law) all rights of redemption,
stay and/or appraisal which it now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted. Each Pledgor
agrees that, to the extent notice of sale shall be required by law, at least ten
days' notice to Pledgors of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. Secured Party shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. Secured Party may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned. Each Pledgor hereby waives any
claims against Secured Party arising by reason of the fact that the price at
which any Pledged Collateral may have been sold at such a private sale was less
than the price which might have been obtained at a public sale, even if Secured
Party accepts the first offer received and does not offer such Pledged
Collateral to more than one offeree. If the proceeds of any sale or other
disposition of the Pledged Collateral are insufficient to pay all the Secured
Obligations, Pledgors shall be liable for the deficiency and the reasonable fees
of any attorneys employed by Secured Party to collect such deficiency.
(b) Each Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as from time to time amended (the
"SECURITIES ACT"), and applicable state securities laws, Secured Party may be
compelled, with respect to any sale of all or any part of the Pledged Collateral
conducted without prior registration or qualification of such
10
Pledged Collateral under the Securities Act and/or such state securities laws,
to limit purchasers to those who will agree, among other things, to acquire the
Pledged Collateral for their own account, for investment and not with a view to
the distribution or resale thereof. Each Pledgor acknowledges that any such
private sales may be at prices and on terms less favorable than those obtainable
through a public sale without such restrictions (including, without limitation,
a public offering made pursuant to a registration statement under the Securities
Act) and, notwithstanding such circumstances and the registration rights granted
to Secured Party by Pledgors pursuant to Section 12, each Pledgor agrees that
any such private sale shall be deemed to have been made in a commercially
reasonable manner and that Secured Party shall have no obligation to engage in
public sales and no obligation to delay the sale of any Pledged Collateral for
the period of time necessary to permit the issuer thereof to register it for a
form of public sale requiring registration under the Securities Act or under
applicable state securities laws, even if such issuer would, or should, agree to
so register it.
(c) If Secured Party determines to exercise its right to sell any or
all of the Pledged Collateral, upon written request, each Pledgor shall and
shall cause each issuer of any Pledged Shares to be sold hereunder from time to
time to furnish to Secured Party all such information as Secured Party may
request in order to determine the number of shares and other instruments
included in the Pledged Collateral which may be sold by Secured Party in exempt
transactions under the Securities Act and the rules and regulations of the
Securities and Exchange Commission thereunder, as the same are from time to time
in effect.
SECTION 12. REGISTRATION RIGHTS. If Secured Party shall determine to
exercise its right to sell all or any of the Pledged Collateral pursuant to
Section 11, each Pledgor agrees that, upon request of Secured Party (which
request may be made by Secured Party in its sole discretion), each Pledgor will,
at its own expense:
(a) execute and deliver, and cause each issuer of the Pledged
Collateral contemplated to be sold and the directors and officers thereof to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be necessary or, in the opinion of
Secured Party, advisable to register such Pledged Collateral under the
provisions of the Securities Act and to cause the registration statement
relating thereto to become effective and to remain effective for such period as
prospectuses are required by law to be furnished, and to make all amendments and
supplements thereto and to the related prospectus which, in the reasonable
opinion of Secured Party, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto;
(b) use its best efforts to qualify the Pledged Collateral under all
applicable state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Pledged Collateral, as requested by
Secured Party;
(c) cause each such issuer to make available to its security holders,
as soon as practicable, an earnings statement which will satisfy the provisions
of Section 11(a) of the Securities Act;
11
(d) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Pledged Collateral or any part thereof valid
and binding and in compliance with applicable law; and
(e) bear all costs and expenses, including reasonable attorneys' fees,
of carrying out its obligations under this Section 12.
Each Pledgor further agrees that a breach of any of the covenants
contained in Sections 11 and 12 will cause irreparable injury to Secured Party,
that Secured Party has no adequate remedy at law in respect of such breach and,
as a consequence, that each and every covenant contained in Sections 11 and 12
shall be specifically enforceable against Pledgors, and each Pledgor hereby
waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no default has occurred
giving rise to the Secured Obligations becoming due and payable prior to their
stated maturities. Nothing in this Section 12 shall in any way alter the rights
of Secured Party hereunder.
SECTION 13. APPLICATION OF PROCEEDS. Except as expressly provided
elsewhere in this Agreement, all proceeds received by Secured Party in respect
of any sale of, collection from, or other realization upon all or any part of
the Pledged Collateral shall be applied in the following order of priority:
FIRST: To the payment of all costs and expenses of such sale,
collection or other realization, including reasonable compensation to
Secured Party and its agents and counsel, and all other expenses,
liabilities and advances made or incurred by Secured Party in connection
therewith, and all amounts for which Secured Party is entitled to
indemnification hereunder and all advances made by Secured Party hereunder
for the account of Pledgors, and to the payment of all costs and expenses
paid or incurred by Secured Party in connection with the exercise of any
right or remedy hereunder;
SECOND: To the payment of all other Secured Obligations (for the
ratable benefit of the holders thereof) and, as to obligations arising
under the Credit Agreement, as provided in the Credit Agreement, and
THIRD: To the payment to or upon the order of Pledgors, or to whosoever
may be lawfully entitled to receive the same or as a court of competent
jurisdiction may direct, of any surplus then remaining from such proceeds.
SECTION 14. INDEMNITY AND EXPENSES.
(a) Each Pledgor jointly and severally agrees to indemnify Secured
Party and each Lender from and against any and all claims, losses and
liabilities in any way relating to, growing out of or resulting from this
Agreement and the transactions contemplated hereby (including, without
limitation, enforcement of this Agreement), except to the extent such claims,
losses or liabilities result solely from Secured Party's or such Lender's gross
negligence or willful misconduct as finally determined by a court of competent
jurisdiction.
(b) Each Pledgor jointly and severally agrees to pay to Secured Party
upon demand the amount of all reasonable costs and expenses, including the
reasonable fees and
12
expenses of its counsel and of any experts and agents, that Secured Party may
incur in connection with (i) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Pledged Collateral, (ii)
the exercise or enforcement of any of the rights of Secured Party hereunder, or
(iii) the failure by any Pledgor to perform or observe any of the provisions
hereof.
(c) In the event of any public sale described in Section 12, each
Pledgor jointly and severally agrees to indemnify and hold harmless Secured
Party and each of Secured Party's directors, officers, employees and agents from
and against any loss, fee, cost, expense, damage, liability or claim, joint or
several, to which Secured Party or such other persons may become subject or for
which any of them may be liable, under the Securities Act or otherwise, insofar
as such losses, fees, costs, expenses, damages, liabilities or claims (or any
litigation commenced or threatened in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, registration statement, prospectus or
other such document published or filed in connection with such public sale, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will promptly reimburse Secured Party and such other persons for any legal or
other expenses reasonably incurred by Secured Party and such other persons in
connection with any litigation, of any nature whatsoever, commenced or
threatened in respect thereof (including without limitation any and all fees,
costs and expenses whatsoever reasonably incurred by Secured Party and such
other persons and counsel for Secured Party and such other persons in
investigating, preparing for, defending against or providing evidence, producing
documents or taking any other action in respect of, any such commenced or
threatened litigation or any claims asserted). This indemnity shall be in
addition to any liability which Pledgors may otherwise have and shall extend
upon the same terms and conditions to each person, if any, that controls Secured
Party or such persons within the meaning of the Securities Act.
(d) The obligations of Pledgors in this Section 14 shall survive the
termination of this Agreement and the discharge of Pledgors' other obligations
under this Agreement, the Credit Agreement and the other Loan Documents.
SECTION 15. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (a) remain in full force and effect until the payment in full of all
Secured Obligations and the cancellation or termination of the Commitments, (b)
be binding upon Pledgors, their successors and assigns, and (c) inure, together
with the rights and remedies of Secured Party hereunder, to the benefit of
Secured Party and its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), but subject to the provisions of
subsection 10.04 of the Credit Agreement, any Lender may assign or otherwise
transfer any Loans held by it to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to
Lenders herein or otherwise. Upon the payment in full of all Secured Obligations
and the cancellation or termination of the Commitments, the security interest
granted hereby shall terminate and all rights to the Pledged Collateral shall
revert to Pledgors. Upon any such termination Secured Party will, at Pledgors'
expense, execute and deliver to Pledgors such documents as Pledgors shall
reasonably request to evidence such termination. In addition, upon
13
the proposed sale, transfer or other disposition of any Pledged Collateral by a
Pledgor in accordance with the Credit Agreement for which such Pledgor desires
to obtain a security interest release from Secured Party, such Pledgor shall
deliver an Officers' Certificate, which shall be true and correct, (x) stating
that the Pledged Collateral subject to such disposition is being sold,
transferred or otherwise disposed of in compliance with the terms of the Credit
Agreement and (y) specifying the Pledged Collateral being sold, transferred or
otherwise disposed of in the proposed transaction. Upon the receipt of such
Officers' Certificate, Secured Party shall, at Pledgors' expense, so long as
Secured Party has no reason to believe that the Officers' Certificate delivered
by a Pledgor with respect to such sale is not true and correct, execute and
deliver such releases of its security interest in such Pledged Collateral which
is to be so sold, transferred or disposed of, as may be reasonably requested by
Pledgors.
SECTION 16. SECURED PARTY AS ADMINISTRATIVE AGENT.
(a) Secured Party has been appointed to act as Secured Party hereunder
by Lenders. Secured Party shall be obligated, and shall have the right
hereunder, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action (including
without limitation the release or substitution of Pledged Collateral), solely in
accordance with this Agreement and the Credit Agreement; provided that Secured
Party shall exercise, or refrain from exercising, any remedies provided for in
Section 11 in accordance with the instructions of Requisite Lenders (Requisite
Lenders being referred to herein as "REQUISITE OBLIGEES").
(b) Secured Party shall at all times be the same Person that is
Administrative Agent under the Credit Agreement. Notice of resignation by
Administrative Agent pursuant to subsection 9.09 of the Credit Agreement shall
also constitute notice of resignation as Secured Party under this Agreement;
removal of Administrative Agent pursuant to subsection 9.09 of the Credit
Agreement shall also constitute removal as Secured Party under this Agreement;
and appointment of a successor Administrative Agent pursuant to subsection 9.09
of the Credit Agreement shall also constitute appointment of a successor Secured
Party under this Agreement. Upon the acceptance of any appointment as
Administrative Agent under subsection 9.09 of the Credit Agreement by a
successor Administrative Agent, that successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring or removed Secured Party under this Agreement, and
the retiring or removed Secured Party under this Agreement shall promptly (i)
transfer to such successor Secured Party all sums, securities and other items of
Pledged Collateral held hereunder, together with all records and other documents
necessary or appropriate in connection with the performance of the duties of the
successor Secured Party under this Agreement, and (ii) execute and deliver to
such successor Secured Party such amendments to financing statements, and take
such other actions, as may be necessary or appropriate in connection with the
assignment to such successor Secured Party of the security interests created
hereunder, whereupon such retiring or removed Secured Party shall be discharged
from its duties and obligations under this Agreement. After any retiring or
removed Administrative Agent's resignation or removal hereunder as Secured
Party, the provisions of this Agreement shall inure to its benefit as to any
actions taken or omitted to be taken by it under this Agreement while it was
Secured Party hereunder.
SECTION 17. LETTER OF CREDIT CASH COLLATERAL ACCOUNT.
14
Secured Party is hereby authorized to establish and maintain at any
financial institution designated by Secured Party as blocked accounts in the
name of any Pledgor and under the sole dominion and control of Secured Party,
one or more restricted deposit accounts designated as "AIMCO Letter of Credit
Cash Collateral Account." All amounts at any time held in the Letter of Credit
Cash Collateral Account shall be beneficially owned by Pledgors, but shall be
held in the name of Secured Party hereunder, as collateral security for the
Secured Obligations upon the terms and conditions set forth herein. Except as
expressly set forth herein or in the applicable Deposit Account Control
Agreement, Pledgors shall have no right to withdraw, transfer or otherwise
receive any funds deposited into the Letter of Credit Cash Collateral Account.
Anything contained herein to the contrary notwithstanding, the Letter of Credit
Cash Collateral Account shall be subject to such applicable laws, and such
applicable regulations of the Board of Governors of the Federal Reserve System
and of any other appropriate banking or Government Authority, as may now or
hereafter be in effect. All deposits of funds in the Letter of Credit Cash
Collateral Account shall be made by wire transfer (or, if applicable, by
intra-bank transfer from another account of a Pledgor) of immediately available
funds, in each case addressed in accordance with instructions of Secured Party.
At Secured Party's request, each Pledgor shall, promptly after initiating a
transfer of funds to the Letter of Credit Cash Collateral Account, give notice
to Secured Party by telefacsimile of the date, amount and method of delivery of
such deposit. Cash held by Secured Party in the Letter of Credit Cash Collateral
Account shall not be invested by Secured Party but instead shall be maintained
as a cash deposit in the Letter of Credit Cash Collateral Account pending
application thereof as elsewhere provided in this Agreement or the other Loan
Documents. To the extent permitted under Regulation Q of the Board of Governors
of the Federal Reserve System, any cash held in the Letter of Credit Cash
Collateral Account shall bear interest at the standard rate paid by the
depositary bank. Subject to Secured Party's rights hereunder, any interest
earned on deposits of cash in the Letter of Credit Cash Collateral Account shall
be deposited directly in, and held in the Letter of Credit Cash Collateral
Account.
SECTION 18. AMENDMENTS; ETC. No amendment (other than Pledge
Amendments), modification, termination or waiver of any provision of this
Agreement, and no consent to any departure by Pledgors therefrom, shall in any
event be effective unless the same shall be in writing and signed by Secured
Party and, in the case of any such amendment or modification, by Pledgors. Any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it was given.
SECTION 19. NOTICES. Any notice or other communication herein required
or permitted to be given shall be in writing and may be personally served,
telexed or sent by telefacsimile or United States mail or courier service and
shall be deemed to have been given when delivered in person or by courier
service, upon receipt of telefacsimile or telex, or three Business Days after
depositing it in the United States mail with postage prepaid and properly
addressed; provided that notices to Secured Party shall not be effective until
received. For the purposes hereof, the address of each party hereto shall be as
provided in subsection 10.02 of the Credit Agreement or as set forth under such
party's name on the signature pages hereof or as such other address as shall be
designated by such party in a written notice delivered to the other party
hereto.
15
SECTION 20. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of Secured Party in the exercise of any power,
right or privilege hereunder shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude any
other or further exercise thereof or of any other power, right or privilege. All
rights and remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
SECTION 21. SEVERABILITY. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 22. HEADINGS. Section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
SECTION 23. GOVERNING LAW; TERMS. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA (INCLUDING WITHOUT LIMITATION SECTION 1646.5 OF THE CIVIL CODE OF THE
STATE OF CALIFORNIA), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO
THE EXTENT THAT THE UCC PROVIDES THAT THE PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
CALIFORNIA. Unless otherwise defined herein or in the Credit Agreement, terms
used in Divisions 8 and 9 of the Uniform Commercial Code in the State of
California are used herein as therein defined. The rules of construction set
forth in subsection 1.02 of the Credit Agreement shall be applicable to this
Agreement mutatis mutandis.
SECTION 24. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PLEDGOR ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE COURT
OF COMPETENT JURISDICTION IN THE STATE OF CALIFORNIA OR IN THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH PLEDGOR, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO PLEDGORS AT THEIR ADDRESSES PROVIDED IN ACCORDANCE WITH
SECTION 19; (IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH PLEDGOR IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE
16
AND BINDING SERVICE IN EVERY RESPECT; (V) AGREES THAT SECURED PARTY RETAINS THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
PROCEEDINGS AGAINST ANY PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 24 RELATING TO JURISDICTION AND
VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 410.40 OR OTHERWISE.
SECTION 25. WAIVER OF JURY TRIAL. EACH PLEDGOR AND SECURED PARTY HEREBY
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction, including
without limitation contract claims, tort claims, breach of duty claims, and all
other common law and statutory claims. Each Pledgor and Secured Party
acknowledge that this waiver is a material inducement for Pledgors and Secured
Party to enter into a business relationship, that Pledgors and Secured Party
have already relied on this waiver in entering into this Agreement and that each
will continue to rely on this waiver in their related future dealings. Each
Pledgor and Secured Party further warrant and represent that each has reviewed
this waiver with its legal counsel, and that each knowingly and voluntarily
waives its jury trial rights following consultation with legal counsel. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS
SECTION 25 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
SECTION 26. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[Rest of Page Intentionally Left Blank]
17
IN WITNESS WHEREOF, Pledgors and Secured Party have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
as Pledgor
By: AIMCO-GP, INC.,
a Delaware corporation
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
AIMCO/BETHESDA HOLDINGS, INC.,
a Delaware corporation
as Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
NHP MANAGEMENT COMPANY,
a District of Columbia corporation
as Pledgor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
Executive Vice President
AIMCO HOLDINGS, L.P.,
a Delaware limited partnership
By: AIMCO Holdings QRS, Inc., its
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
BANK OF AMERICA, N.A.,
as Secured Party
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Principal