Exhibit 10.244
BOND PLEDGE AGREEMENT
THIS BOND PLEDGE AGREEMENT (this "Agreement") dated as of June 9, 2004, is
between GM OLATHE, LLC, a Delaware limited liability company (the "Pledgor"),
and XXXXXX XXXXXXX MORTGAGE CAPITAL INC., a New York corporation (the "Secured
Party"), and is acknowledged and agreed to by THE HUNTINGTON NATIONAL BANK, a
national bank ("Huntington").
RECITALS:
A. The City of Olathe, Kansas (the "Issuer") issued up to a maximum
principal amount of $120,000,000 of Industrial Revenue Bonds (Olathe Mall LLC
Project), Series 1996A and 1996B (collectively, the "Bonds"), pursuant to that
certain Trust Indenture dated as of June 1, 1996 (the "Indenture"), between the
Issuer and Huntington, as Trustee.
B. Pledgor agreed to purchase the Bonds pursuant to a Bond Purchase
Agreement dated as of June 1, 1996, among Pledgor, as borrower, Pledgor, as
purchaser, and the Issuer.
C. Pledgor has agreed to pledge the Bonds to the Secured Party to secure
certain indebtedness owing from the Pledgor to the Secured Party.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereby agree as follows:
1. Security Interest. To secure the payment and performance of each and
every debt, liability and obligation of every type and description which the
Pledgor may now or anytime hereafter owe to the Secured Party (all such debts,
liabilities and obligations being herein collectively referred to as the
"Obligations"), Pledgor hereby grants Secured Party a first- priority security
interest in the Bonds. To perfect this security interest, Pledgor agrees to
deliver possession of the Bonds to the Secured Party.
2. Representations, Warranties and Covenants. Pledgor represents, warrants
and covenants that: (a) Pledgor will duly endorse, in blank, the Bonds by
signing on the Bonds or signing a separate document of assignment or transfer
satisfactory to the Bank; (b) Pledgor is the owner of the Bonds free and clear
of all liens, encumbrances, adverse claims, security interests and restrictions;
(c) Pledgor will keep the Bonds free and clear of all liens, encumbrances,
adverse claims, security interests and restrictions, other than those in favor
of the Secured Party; (d) upon delivery to the Secured Party of the security
certificates evidencing the Bonds, the security interest granted to the Secured
Party will constitute a valid, perfected first- priority security interest in
the Bonds, free from any adverse claim; (e) Pledgor will not enter into any
agreement or undertaking restricting the right or ability of the Secured Party
to sell, assign or transfer any of the Bonds; (f) Pledgor will not transfer the
Bonds to any other party without the express written consent of Secured Party;
(g) if Pledgor's interest in that certain
Lease Agreement dated as of June 1, 1996 between the City of Olathe, Kansas, as
landlord, and Pledgor's predecessor-in-interest, as tenant, is assigned to
another party, Secured Party shall have the right to require Pledgor to transfer
the interest of Pledgor in the Bonds to such party, subject to this Agreement;
(h) from July 2, 1996 through the date hereof, Pledgor has received all payments
of principal and interest due on the Bonds whether or not paid through
Huntington, and no amount is due and owing on the Bonds as of the date hereof;
and (i) Pledgor hereby selects LIBOR as the current Permitted Index (as defined
in the Bonds) and the period commencing on the fifteenth (15th) day of each
calendar month and ending on (and including) the fourteenth (14th) day of the
following calendar month as the current Interest Period (as defined in the
Bonds) for the Bonds from the date hereof and shall provide written notice to
Huntington of any changes to that Permitted Index and Interest Period.
3. Rights of Secured Party. The Secured Party agrees that Pledgor shall be
entitled to receive all payments on, redemption premium or other distributions
with respect to the Bonds and shall retain all voting rights with respect to the
Bonds until an Event of Default (as hereafter defined) shall have occurred.
Following the occurrence of an Event of Default, all interest, dividends and
distributions shall be paid to the Secured Party and all voting rights with
respect to the Bonds shall be vested in the Secured Party. Huntington shall be
required to make such payments to the Secured Party only if the Secured Party
has given written notice of the Event of Default to Huntington and provided
written instructions to Huntington for payment. If, following the occurrence of
an Event of Default, Pledgor shall come into possession of any such interest,
dividends or distributions, Pledgor shall hold them in trust, segregated from
Pledgor's other property, for the benefit of the Secured Party and forthwith
deliver them to the Secured Party.
4. Default and Remedies. Each of the following occurrences shall constitute
an event of default under this Agreement (herein called an "Event of Default"):
(i) Pledgor shall fail to pay any or all of the Obligations when due or (if
payable on demand) on demand or shall default under any material agreement
governing the Obligations with the Secured Party; (ii) Pledgor shall voluntarily
file or have involuntarily filed against it a petition under the United States
Bankruptcy Code; or (iii) an Event of Default (as defined therein) shall have
occurred and is continuing under the Lease Agreement dated as of June 1, 1996
(the "Lease Agreement"), between the Pledgor, as lessees, and the Issuer.
Upon the occurrence of an Event of Default, the Pledgor agrees, upon the
request of the Secured Party, to take all action necessary to transfer ownership
of the Bonds to the Secured Party. Additionally, the Secured Party may exercise
any and all rights and remedies available against Pledgor upon default to a
secured party under New York law and the Uniform Commercial Code. All reasonable
expenses and attorney's fees incurred by the Secured Party or its agents in
connection with the exercise of remedies hereunder shall be payable out of the
proceeds of any disposition of the Bonds and shall constitute Obligations.
5. Waivers by Pledgor. None of the following acts or things (which Secured
Party is authorized to do or not to do with or without notice to Pledgor) shall
in any way affect or impair the security interest or Pledgor's liabilities and
obligations hereunder: (a) any extension or renewal (whether or not for longer
than the original period) of any or all of the Obligations; (b) any change in
the terms of payment or other terms of any or all of the
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Obligations, or any substitution or exchange of any evidence of any or all of
the Obligations or collateral therefore, or any release of any collateral for
any or all of the Obligations; (c) the failure or neglect to protect or preserve
any Obligation or any collateral therefor, or to exercise any right which may be
available to the Secured Party by law or agreement prior to or after an Event of
Default or a default under any other agreement, or any delay in doing any of the
foregoing; (d) the failure or neglect to ascertain or assure that the proceeds
of any loan to Pledgor are used in any particular manner; and (e) the
application or failure to apply in any particular manner any payments or credits
upon the Obligations.
6. Consent to Bonds, Transfer of Property and Mortgage. The Secured Party
hereby consents to the borrowing of the proceeds of the Bonds by the Pledgor, as
borrower, and the transfer of the Project (as described in the Lease (as defined
in the Indenture)) from the Pledgor to the Issuer, and the lease of the Project
from the Issuer to the Pledgor. The Secured Party is the holder of a mortgage on
the Project securing $30,000,000 and dated June 9, 2004, to be submitted for
recording and to be filed with the Xxxxxxx County Recorder's office on the date
hereof (the "Mortgage"). The Secured Party consents to the transfer of the
Project to the Issuer and the lease of the Project from the Issuer to the
Pledgor pursuant to the Lease Agreement. The Secured Party agrees that it will
not declare the debt secured by the Mortgage due as a result of such transfers.
7. Miscellaneous. This Agreement can be waived, modified, amended,
terminated or discharged, and the Bonds can be released only explicitly in a
writing signed by Secured Party. This Agreement shall terminate upon payment in
full or cancellation of the Bonds. Pledgor will reimburse Secured Party for all
expenses, including legal fees, incurred by Secured Party in the protection,
defense or enforcement of this Agreement, including expenses incurred in any
litigation or bankruptcy or insolvency proceedings. This Agreement shall be
binding upon and inure to the benefit of Pledgor and Secured Party and their
respective heirs, representatives, successors and assigns and shall take effect
when signed by Pledgor and delivered to Secured Party. The laws of the State of
New York shall govern this Agreement. If this Agreement is signed by more than
one person as Pledgor, the term "Pledgor" shall refer to each of them separately
and to both or all of them jointly; all such persons shall be bound both
severally and jointly with the other(s); and all property described in Section 1
shall be included as part of the Bonds, whether it is owned jointly by both or
all Pledgors or is owned in whole or in part by one (or more) of them.
8. Further Assurances. To further secure the indebtedness and obligations
of Pledgor to the Secured Party, Pledgor agrees to take such action, and to
execute and deliver, from time to time, any and all additional security
agreements, guaranties, financing statements, notices of lien and other
collateral documents, which the Secured Party may deem necessary or advisable.
If any amount payable under or in connection with any of the Bonds shall be or
become evidenced by any promissory note, other instrument or chattel paper, such
promissory note, other instrument or chattel paper shall be forthwith delivered
to the Secured Party, duly indorsed in a manner satisfactory to the Secured
Party, to be held as collateral hereunder.
9. Attorney-in-Fact. (a) Pledgor hereby irrevocably constitutes and
appoints the Secured Party and any officer or agent of the Secured Party, with
full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in
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the place and stead of Pledgor and in the name of Pledgor or in the Secured
Party's own name, from time to time in the Secured Party's discretion, for the
purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement,
including, without limitation, any financing statements, endorsements,
assignments or other instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys shall lawfully do
or cause to be done pursuant to the power of attorney granted in Section 9(a).
All powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until this Agreement is terminated and the
security interest created hereby are released.
10. Limitation on Secured Party's Duties. The Secured Party's sole duty
with respect to the custody, safekeeping and physical preservation of Bonds in
its possession, under Section 9-207 of the Uniform Commercial Code or otherwise,
shall be to deal with it in the same manner as the Secured Party deals with
similar property for its own account.
11. Representations and Covenants of Huntington. (a) Huntington hereby
represents and warrants as of the date hereof as follows:
(i) The outstanding principal balance of the Bonds is $80,000,000.00.
(ii) Pledgor is the registered holder of the Bonds.
(b) Huntington hereby recognizes the restrictions on transfer of the Bonds
contained herein and hereby covenants not to record any transfer of the Bonds as
effective without the express written consent of the Secured Party.
12. Offset of Basic Rent Payments. So long as Pledgor is the owner or
beneficial owner of 100% of the Bonds and the lessee under the Lease Agreement,
the parties hereto agree that Pledgor may, and Pledgor hereby elects to, offset
all payments of Basic Rent owned by it against all of the principal and interest
next due or then due to it as owner of the Bonds; Pledgor shall continue to pay
any and all Additional Rent as required by the Lease Agreement. This election
shall remain in effect as to all future Basic Rent payments until Pledgor shall
give written notice to Huntington revoking this offset election and Secured
Party shall give its consent thereto. In order to document such Basic Rent
payment offsets, each Basic Rent payment offset will be evidenced by appropriate
entries in the financial records of the Pledgor without the necessity of any
transfer of funds on the part of Pledgor. For purposes of the Lease Agreement,
the amount of Basic Rent payment so offset by Pledgor shall be treated as a
Basic Rent payment made, paid and credited to Pledgor on the applicable Basic
Rent payment date.
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Agreed to this 9th day of June, 2004.
PLEDGOR:
GM OLATHE, LLC, a Delaware limited liability company
By: GM MEZZ, LLC, a Delaware limited liability company,
its sole member
By: GREAT PLAINS METROMALL, LLC, a Delaware
limited liability company, its sole member
By: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership,
its sole member
By: GLIMCHER PROPERTIES CORPORATION, a
Delaware corporation, its sole general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
SECURED PARTY:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC., a
New York corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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