PLEDGE AND SECURITY AGREEMENT
Exhibit 10.3
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this “Agreement”) is made as of this 7th day of April, 2016, by NEXPOINT MULTIFAMILY REALTY TRUST, INC., a Maryland corporation (“Pledgor”), having an address at 300 Crescent Court, Suite 700, Dallas, Texas 75201, for the benefit of KEYBANK NATIONAL ASSOCIATION, in its capacity as Administrative Agent (the “Administrative Agent”) for the lenders party thereto from time to time (the “Lenders”) under that certain Revolving Credit Agreement dated as of April 7, 2016 by and among Highland Capital Management L.P., a Delaware limited partnership and NexPoint Multifamily Operating Partnership, L.P., a Delaware limited partnership (jointly and severally, the “Borrower”), the Administrative Agent and Lenders (as may be amended, modified, restated, or supplemented and in effect from time to time, the “Credit Agreement”); and
WHEREAS, Pledgor is, or may subsequently become, the legal and beneficial owner of the Ownership Interests in various entities each of which is the owner of Real Property owned by Borrower, Parent, or any of their respective Subsidiaries which is encumbered by a first priority mortgage lien (“Encumbered Property”); and
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make a revolving loan to Borrower in the aggregate principal amount of up to $15,000,000.00 (the “Revolving Loan”), the proceeds of which shall be used for the acquisition of the Mortgaged Properties; and
WHEREAS, Pledgor wishes to grant pledges and security interests in favor of the Administrative Agent for the benefit of the Lenders, as herein provided.
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
| 1. | Pledge of Collateral. Pledgor hereby pledges and assigns to the Administrative Agent, and grants to the Administrative Agent, a security interest in, all of Pledgor’s right, title, and interest in and to the following (singly and collectively, the “Collateral”): |
| a. | the right to receive Distributions made by any Subsidiary in respect of a Capital Event to the extent of Pledgor’s Ownership Interests therein; and |
| b. | all Proceeds of any of the foregoing. |
Notwithstanding anything to the contrary contained herein, the grant of Collateral hereunder shall not be deemed to require any individual Subsidiary to distribute such amounts as would result in such Subsidiary violating any covenant in any Mortgage Loan Documents.
| 2. | Certain Definitions. Capitalized terms used herein without definition shall have the respective meanings provided therefor in the Credit Agreement. Terms (whether or not capitalized) used herein and not defined in the Credit Agreement or otherwise defined |
| herein that are defined in the Uniform Commercial Code as in effect in the State of New York or other applicable jurisdiction (the “UCC”) have such defined meanings herein, unless the context otherwise indicates or requires. In addition, the following terms used herein shall have the following meanings: |
| a. | “Capital Event” means a distribution made to the holder of an Ownership Interest in any Subsidiary as a result of any financing, sale or other transfer of any asset of the Subsidiary, or any realization of any distributions on account of any dividends or return on any preferred or other equity investment in any Subsidiary. |
| b. | “Distributions” means the declaration of payment of any distribution of cash or cash flow on account of a Capital Event. |
| c. | “Governmental Authority” means any national, state, or local government, any political subdivision thereof, or any other governmental, quasi-governmental, judicial, public, or statutory instrumentality, authority, body, agency, bureau, or entity or any arbitrator with authority to bind a Person at law, and any agency, authority, department, commission, board, bureau, or instrumentality of any of them. |
| d. | “Lien” means any lien, encumbrance, security interest, mortgage, restriction, charge or encumbrance of any kind. |
| e. | “Loan Documents” means those documents, instruments and agreements delivered pursuant to the Credit Agreement, and any other document, instrument or agreement executed to further evidence the Revolving Loan pursuant to the Credit Agreement, as same may be amended, modified, supplemented, or replaced from time to time. |
| f. | “Mortgage” means any mortgage, deed of trust, deed to secure debt or other encumbrance pursuant to which a Person’s right, title and interest in, among other things, real property, is conveyed to secure an obligation to repay indebtedness. |
| g. | “Mortgage Loan” means a loan secured by a Mortgage. |
| h. | “Mortgage Loan Documents” means all agreements executed in connection with a Mortgage Loan. |
| i. | “Ownership Interests” means: (i) the membership interests of any entity that is a limited liability company; (ii) the shares of stock of any entity that is a corporation; (iii) the general partnership interest and limited partnership interests of any entity that is a limited partnership; and (iv) general partnership interests in any entity that is a general partnership. |
| j. | “Organizational Documents” means for any corporation, partnership, trust, limited liability company, limited liability partnership, unincorporated association, business or other legal entity, the documents pursuant to which such entity has been established or organized, as such documents may be amended from time to time. |
| k. | “Proceeds” shall have the meaning ascribed to such term in the Uniform Commercial Code of the State of New York. |
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| 3. | Security for Obligations. This Agreement secures, and the 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. § 362(a)), of the obligations under the Credit Agreement and other Loan Documents, of every nature, now or hereafter existing under or arising out of or in connection with the Credit Agreement and the other Loan Documents and all renewals or extensions thereof, whether for principal, interest, 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 the Administrative Agent as a preference, fraudulent transfer, or otherwise, and all obligations of every nature of Pledgor now or hereafter existing under this Agreement (all such obligations of Pledgor, being referred to herein, singly and collectively, as the “Secured Obligations”). |
| 4. | Intentionally Omitted. |
| 5. | Representations and Warranties. Pledgor hereby represents and warrants as follows: |
| a. | Description of Ownership Interests. The Ownership Interests are fully paid and non-assessable. The Ownership Interests constitute all of the issued and outstanding Ownership Interests of the Subsidiary owned beneficially or of record by Pledgor. |
| b. | Ownership of Collateral. (i) Pledgor has a valid and enforceable legal right to receive the Collateral, free and clear of, and subject to no, pledges, Liens, security interests, charges, options, restrictions or other encumbrances, except the pledge and security interest created by this Agreement and Permitted Encumbrances (as defined in the Credit Agreement), and (ii) Pledgor has the legal capacity to execute, deliver and perform Pledgor’s obligations under this Agreement and to pledge and grant a security interest in all of the Collateral. |
| c. | Governmental Authorizations. No authorization, approval, or other action by, and no notice to or filing with, any Governmental Authority is required for either (i) the pledge by Pledgor of the Collateral pursuant to this Agreement and the grant by Pledgor of the security interest granted hereby, (ii) the execution, delivery, or performance of this Agreement by Pledgor, or (iii) the exercise by the Administrative Agent of the voting or other rights, or the remedies in respect of |
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| the Collateral provided for in this Agreement (except as may be required in connection with a disposition of Collateral by laws affecting the offering and sale of securities generally and except as provided in the Senior Loan Documents (as defined in the Credit Agreement)). |
| d. | Securities. Pledgor acknowledges and agrees that the Collateral is not “securities” under any federal investment company laws or federal or state securities laws. None of the Collateral is dealt with or traded on any securities exchanges or in any securities markets. |
| e. | Creation, Perfection and Priority of Security Interest. By reason of the acts taken by Pledgor, the Administrative Agent has a first priority, perfected security interest in the Collateral, and no further or additional acts are required to create and perfect the Administrative Agent’s security interest in and lien on the Collateral, and the security interest in and the lien on the Collateral securing the Administrative Agent is superior in right and priority to any rights or claims of any other Person. This Agreement constitutes an authenticated record, and the Administrative Agent is authorized at all times to file any and all UCC financing statements determined by the Administrative Agent to be necessary or desirable to perfect its security interest in the Collateral. |
| f. | No Other Financing Statements. Other than the UCC financing statements delivered and filed by Pledgor and in connection with securing the Collateral, there is no financing statement (or similar statement or registration under the laws of any jurisdiction) now on file or registered in any public office covering any interest of Pledgor or any other Person in the Collateral or intended so to be. |
| g. | Encumbered Property. Each Subsidiary identified in Schedule A is the owner of Encumbered Property. Pledgor does not have any Ownership Interest in any entity that owns Encumbered Property that is not also a Subsidiary identified on Schedule A. |
| h. | Other Information. All information heretofore, herein or hereafter supplied to the Administrative Agent by Pledgor with respect to the Collateral is accurate and complete in all material respects. |
| 6. | Assurances and Covenants of Pledgor. |
| a. | Transfers and Other Liens. Pledgor shall not: |
| i. | sell, assign (by operation of law or otherwise), pledge, or hypothecate or otherwise dispose of, or grant any option with respect to, any of the Collateral, except to the Administrative Agent hereunder; or |
| ii. | create or suffer to exist any Lien upon or with respect to any of the Collateral, except for the Lien created hereunder and any Permitted Encumbrances. |
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| b. | Covenants of Pledgor. Pledgor covenants and agrees that so long as any Secured Obligation is outstanding: |
| i. | Pledgor shall not vote for, or agree or consent to, the sale, transfer, pledge or encumbrance of the Collateral except as otherwise explicitly permitted pursuant to Section 6(a). |
| ii. | Pledgor shall not vote for, or agree or consent to, the discontinuance of the business or the dissolution or liquidation of the Subsidiary. |
| iii. | Pledgor shall not vote for, or agree or consent to, any modifications to the Organizational Documents of the Subsidiary with respect to the timing or amount of any Distributions |
| iv. | Pledgor shall within the applicable limitations of any Mortgage Loan Documents cause the Subsidiary to make Distributions in connection with a Capital Event to the Pledgor. |
| v. | Pledgor shall not enter into any agreements which restrict, limit or otherwise impair the timing or amount of any Distributions. |
| c. | Pledge Encompasses Additional Collateral Subsequently Acquired. If: (i) Pledgor obtains the Ownership Interests of any entity that owns Encumbered Property; or (ii) any Subsidiary of Pledgor grants a Mortgage on previously unencumbered Property, the Collateral shall automatically and without the need to execute any further documentation, be deemed and construed to encompass any Collateral that may be derived on account of a Capital Event with respect to entity and/or Subsidiary and the failure of Pledgor to execute any additional documents with respect to subsequently additional Collateral shall not impair, to the greatest extent permitted by law, the security interest of the Administrative Agent therein or otherwise adversely affect the rights and remedies of the Administrative Agent with respect thereto. |
| d. | Taxes and Assessments. Pledgor shall pay promptly when due all taxes, assessments, and governmental charges or levies imposed upon, and all claims against, the Collateral, except to the extent the validity thereof is being contested in good faith and by appropriate proceedings and in which reserves or other appropriate provisions have been made or provided therefor; provided that Pledgor shall in any event pay such taxes, assessments, charges, levies, or claims not later than five (5) days prior to the date of any proposed sale under any judgement, writ, or warrant of attachment entered or filed against Pledgor or any of the Collateral as a result of the failure to make such payment. |
| e. | Further Assurances. Pledgor shall from time to time, at the expense of Pledgor, promptly execute and deliver all further instruments and documents, and take all further reasonable action, that may be reasonably necessary or desirable, or that the Administrative Agent may reasonably request, in order to give full effect to this Agreement and to perfect and protect any security interest granted or |
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| purported to be granted hereby or to enable the Administrative Agent to exercise and enforce its rights and remedies hereunder with respect to any Collateral, provided that such further instruments, documents and action are consistent with this Agreement. |
| f. | Warranty of Title to Collateral. Pledgor covenants that Pledgor will defend its rights and title in the Collateral against the claims and demands of all Persons whomsoever. Pledgor further covenants that Pledgor will have the like title to and right to pledge and grant a security interest in the Collateral hereafter pledged or in which a security interest is granted to the Administrative Agent, hereunder and will likewise defend its rights therein. |
| g. | Good Standing. Pledgor will at all times be duly organized and is, and will at all times be, validly existing, in good standing, and qualified to do business in each jurisdiction where required. Pledgor will at all times have all requisite power to own its property and conduct its business as now conducted and as presently contemplated. |
| 7. | Intentionally Omitted. |
| 8. | Intentionally Omitted. |
| 9. | Standard of Care. The powers conferred on the Administrative Agent hereunder are solely to protect its interest in the 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 Collateral in its possession and the accounting for moneys actually received by it hereunder, the Administrative Agent shall have no duty as to any Collateral, it being understood that the Administrative Agent shall have no responsibility for (a) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders, or other matters relating to any Collateral, whether or not the Administrative Agent 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 Collateral) to preserve rights against any parties with respect to any Collateral, (c) taking any necessary steps to collect or realize upon the Secured Obligations or any guaranty therefor, or any part thereof, or any of the Collateral, or (d) initiating any action to protect the Collateral against the possibility of a decline in market value. In no event shall the standard of care imposed upon the Administrative Agent hereunder exceed the minimum applicable standard of care imposed under Section 9-207 of the UCC. |
| 10. | Waiver of Defenses; Secured Obligations Not Affected. Pledgor hereby waives and agrees not to assert or take advantage of any defense based on: (i) except for a breach of the standard of care set forth in Section 9, any lack of diligence by the Administrative Agent in collection, protection or realization upon any Collateral; (ii) the failure to make or give notice of presentment and demand for payment, or failure to make or give protest and notice of dishonor or of default (other default notices specifically required pursuant to Article VII of the Credit Agreement) to Pledgor or to any other party with respect to the Secured Obligations; (iii) any exculpation of liability of any party contained in the |
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| Loan Documents; (iv) the failure of the Administrative Agent to perfect any security or to extend or renew the perfection of any security; (v) any valuation, stay, moratorium law or other similar law now or hereafter in effect or any right to require the marshalling of assets of Pledgor; and (vi) any fraudulent, illegal or improper act by the Subsidiary or Pledgor. |
| 11. | Remedies. |
| a. | If any Event of Default shall have occurred and be continuing under the Loan Documents, then the Administrative Agent may exercise in respect of the 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 UCC (whether or not the UCC applies to the affected Collateral), and the Administrative Agent may also in its sole discretion, without notice except as specified below, sell the Collateral or any part thereof in one or more parts at public or private sale, at any exchange or broker’s board or at any of the Administrative Agent’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 the Administrative Agent may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Collateral. The Administrative Agent may be the purchaser of any or all of the Collateral at any such sale and the Administrative Agent shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the 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 Collateral payable by the Administrative Agent 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 Pledgor. Pledgor agrees that, to the extent notice of sale shall be required by law, at least ten (10) Business Days’ notice to Pledgor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Administrative Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Administrative Agent 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. |
| b. | 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, the Administrative Agent may be compelled, with respect to any sale of all or any part of the Collateral conducted without prior registration or qualification of such 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 Collateral for their own account, for investment and not with a view to the distribution or resale thereof. 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 |
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| limitation, a public offering made pursuant to a registration statement under the Securities Act) and, notwithstanding such circumstances, Pledgor agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Administrative Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any 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 the Administrative Agent determines to exercise its right to sell any or all of the Collateral, then, upon the Administrative Agent’s written request, the Subsidiary shall furnish to the Administrative Agent such information as the Administrative Agent may reasonably request of Pledgor concerning Pledgor and the Collateral granted by Pledgor. |
| 12. | Application of Proceeds. Except as expressly provided elsewhere in this Agreement, all proceeds received by the Administrative Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral may, in the discretion of the Administrative Agent, be held by the Administrative Agent as Collateral for, and/or then, or at any time thereafter, applied in full or in part by the Administrative Agent against, the Secured Obligations in the following order of priority: |
FIRST: As provided for in the Loan Documents, and all reasonable amounts for which the Administrative Agent is entitled to indemnification hereunder and all advances made by the Administrative Agent hereunder for the account of Pledgor; and
SECOND: To the payment to or upon the order of Pledgor, 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.
| 13. | Legal Fees, Costs and Expenses. Pledgor further agrees to pay upon demand all Costs reasonably incurred by the Administrative Agent, or its successors or assigns, in connection with enforcing any of the rights or remedies of the Administrative Agent or its successors or assigns, under or with respect to this Agreement including, but not limited to, attorneys’ reasonable fees and the reasonable out-of-pocket expenses and disbursements of such attorneys. |
| 14. | Continuing Security Interest; Transfer of Revolving Loan. This Agreement shall create a continuing security interest in the 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 Credit Agreement, (b) be binding upon Pledgor, and Pledgor’s legal representatives, successors and assigns, and (c) inure, together with the rights and remedies of the Administrative Agent hereunder, to the benefit of the Administrative Agent and its successors, transferees, and assigns. Without limiting the generality of the foregoing clause (c), the Administrative Agent may assign or otherwise transfer the Revolving Loan held by it to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to the Administrative Agent herein or otherwise. |
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| Upon the indefeasible payment in full of all Secured Obligations, the security interest granted hereby shall terminate and all rights to the Collateral shall revert to Pledgor. Upon any such termination the Administrative Agent will, at Pledgor’s expense, execute and deliver to Pledgor such documents as Pledgor shall reasonably request to evidence such termination and Pledgor shall be entitled to the return, upon Pledgor’s request and at Pledgor’s expense, against receipt and without recourse to the Administrative Agent, of such of the Collateral as shall not have been sold or otherwise applied pursuant to the terms hereof. |
| 15. | Amendments, Etc. No amendment, modification, termination, or waiver of any provision of this Agreement, and no consent to any departure by Pledgor from the terms and conditions hereof, shall in any event be effective as to Pledgor unless the same shall be in writing and signed by the Administrative Agent and, in the case of any such amendment or modification, by Pledgor. Any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. |
| 16. | Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the part of the Administrative Agent 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. |
| 17. | 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. |
| 18. | 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. |
| 19. | 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. |
| 20. | Marshalling. The Administrative Agent shall not be required to marshal any present or future security for (including, but not limited to, this Agreement and the Collateral), or other assurances of payment of, the Secured Obligations or any of them, or to resort to such security or other assurances of payment in any particular order. All of the Administrative Agent’s rights hereunder and in respect of such security and other assurances of payment shall be cumulative and in addition to all other rights, however existing or arising. To the extent that lawfully permissible, Pledgor hereby agrees that |
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| the Administrative Agent will not invoke any law, doctrine, or principle relating to the marshalling of collateral that might cause delay in or impede the enforcement of the Administrative Agent’s rights under this Agreement or under any other instrument evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that Pledgor lawfully may, Pledgor hereby irrevocably waives the benefits of all such laws. |
| 21. | Notices, Etc. Any notice or other communication in connection with this Agreement shall be in writing, and shall be delivered in accordance with the provisions of the Credit Agreement. |
| 22. | Governing Law. This Agreement has been delivered to and accepted by the Administrative Agent and will be deemed to be made in the State of New York. THIS AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES OF NEW YORK STATE LAW OTHER THAN §5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. Pledgor hereby irrevocably consents to the exclusive jurisdiction of any state or federal court in New York, New York; provided that nothing contained in this Agreement will prevent the Administrative Agent from bringing any action, enforcing any award or judgment or exercising any rights against Pledgor, against any security or against any property of Pledgor within any other county, state or other foreign or domestic jurisdiction. The Administrative Agent and Pledgor agree that the venue provided above is the most convenient forum for both the Administrative Agent and Pledgor. The Pledgor waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Agreement. |
[Remainder of page intentionally left blank; signature pages follow]
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IN WITNESS WHEREOF, intending to be legally bound, Pledgor has caused this Agreement to be executed as of the date first above written.
| PLEDGOR: | ||
| NEXPOINT MULTIFAMILY REALTY TRUST, INC., a Maryland corporation | ||
| By: | /s/ Matt McGraner | |
| Name: | Matt McGraner | |
| Title: | COO/EVP – Investments | |
[Signature Page to Pledge Agreement]
SCHEDULE A
Schedule A-1
