EXHIBIT 10.17
PLEDGE AND SECURITY AGREEMENT
OF
MEMBERSHIP INTERESTS
THIS PLEDGE AND SECURITY AGREEMENT OF MEMBERSHIP INTERESTS (the "Pledge
Agreement"), dated as of January 5, 2004 is from Glimcher Properties Limited
Partnership, a Delaware limited partnership, with its principal office at ▇▇▇ ▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the "Pledgor") to Bank One, NA, a national
banking association with offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(the "Pledgee").
RECITALS
The Pledgor acknowledges the following:
A. Pledgor is the Manager of and now owns one hundred percent
(100%) of the limited liability company membership interests
in Polaris Mall, LLC, a Delaware limited liability company
(the "Polaris Mall").
B. Pledgee has agreed to loan Pledgor Thirty-Six Million Five
Hundred Thousand Dollars ($36,500,000.00) (the "Loan") to
finance Pledgor's acquisition of 60.7143% of outstanding and
issued limited liability company membership interests in
Polaris Mall, which acquisition has occurred simultaneously
with its Closing of the Loan.
C. Pledgor has agreed to execute and deliver this Pledge
Agreement that pledges forty-eight and 99/100 percent (48.99%)
of Pledgor's limited liability company interests to Pledgee as
security for the repayment of all current and future
indebtedness owed by Pledgor to Pledgee as a result of the
Loan or otherwise.
AGREEMENTS
In consideration of the Recitals and as further security for the Loan
by Pledgee to Pledgor under the terms and conditions of the following documents,
each of which are dated January 5, 2004 unless otherwise indicated, (a) a loan
agreement between Pledgor and Pledgee; (b) a Note from Pledgor to Pledgee in the
principal amount of Thirty Six Million Five Hundred Thousand Dollars
($36,500,000.00); (c) this Pledge Agreement; (d) a Pledge and Security Agreement
(for fifty-one and 01/100 percent (51.01%) of the limited liability company
membership interests in Polaris Mall); (e) a Guaranty of Payment from Polaris
Mall to Pledgee; and (f) a Negative Pledge Agreement between
Pledgor and Pledgee, and all other documents and materials executed and
delivered in connection with the Loan being hereinafter referred to collectively
as the "Loan Documents"), the Pledgor hereby agrees as follows:
1. Pledge. The Pledgor hereby pledges, assigns, hypothecates,
transfer and delivers to Pledgee all of Pledgor's right, title and interest in
and to forty-eight and 99/100 percent (48.99%) of Pledgor's membership interest
in Polaris Mall (the "Ownership Interest"), and hereby grants to Pledgee a lien
on, and security interest in, such Pledgor's right, title and interest in and to
the Ownership Interest, the interest thereon and all proceeds thereof
(collectively, the "Collateral"), as security for the prompt and complete
payment when due of all obligations of the Borrower set forth in the Loan
Documents (the "Obligations").
2. Rights of Pledgee. Pledgee shall not be liable for failure to
collect or realize upon the Collateral, or any part thereof, or for any delay in
so doing, nor shall it be under any obligation to take any action whosoever with
regard thereto. If an event of default under the Loan Documents has occurred and
is continuing, Pledgee may, without notice to Pledgor, exercise all rights,
privileges or options pertaining to the Ownership Interests as if it were the
absolute owner thereof, upon such terms and conditions as it may determine, all
without liability except to account for property actually received by Pledgee,
but Pledgee shall have no duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible for any failure to do so or
delay in so doing.
3. Remedies. In the event that any portion of the Obligations
becomes due and payable, Pledgee, without demand of performance or other demand,
advertisement or notice of any kind (except the notice specified below of the
time and place of public or private sale) to or upon the Pledgor (all and each
of which demands, advertisements and/or notices are hereby expressly waived by
Pledgor), may collect, receive, appropriate and realize upon the Collateral, or
any part thereof, and/or may forthwith sell, assign, give opinion or options to
purchase, contract to sell or otherwise dispose of and deliver the Collateral,
or any part thereof, in one or more parcels at public or private sale or sales,
at any exchange, broker's board or at Pledgee's offices or elsewhere upon such
terms and conditions as Pledgee may deem advisable and at such prices as Pledgee
may deem best, for cash or on credit or for future delivery without assumption
of any credit risk, with the right of Pledgee upon such sale or sales, public or
private, to purchase the whole or any part of the Collateral so sold, free of
any right or equity of redemption in the Pledgor, which right or equity is
hereby expressly waived or released. Pledgee shall apply the net proceeds of any
such collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred therein or
incidental to the care, safekeeping or otherwise of any and all of the
Collateral or in any way relating to the to the rights of Pledgee hereunder,
including reasonable attorney's fees and legal expenses, and the payment in
whole or in part of the Obligations in such order as Pledgee may elect, the
Pledgor remaining liable for any deficiency remaining unpaid after such
application, and only after so applying such net proceeds and after the payment
by Pledgee of any other amount required by any provision of law including,
without limitation, Section 1309.609 of the UCC, as hereinafter defined, need
Pledgee account for the surplus, if any, to the Pledgor. The Pledgor and Pledgee
agree that Pledgee shall give
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ten (10) days' notice of the time and place of any public sale or of the time
after which a private sale or other intended disposition is to take place and
that such notice is reasonable notification of such matters. No notification
need be given to the Pledgor if it has signed after default a statement
renouncing or modifying any right to notification of sale or other intended
disposition. In addition to the rights and remedies granted to it in this Pledge
Agreement and in any other instrument or agreement securing, evidencing or
relating to any of the Obligations, Pledgee shall have all the rights and
remedies of a secured party under the Ohio version of the Uniform Commercial
Code (the "UCC"). Pledgor further agrees to waive and agrees not to assert any
rights or privileges which such Pledgor may acquire under any section of the UCC
and the Pledgor shall be liable for the deficiency if the proceeds of any sale
or other disposition of the Collateral are insufficient to pay all amounts to
which Pledgee is entitled, and the reasonable fees of any attorneys employed by
Pledgee to collect such deficiency or deficiencies.
4. Grant of Security Interest. Pledgor, for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby grants, pledges, conveys and assigns to Pledgee a continuing security
interest, wherever located, together with all substitutions, replacements,
additions and accessions therefor or thereto, all records relating thereto, all
products thereof and all cash and non-cash proceeds thereof, related solely to
the Ownership Interest. In addition, Pledgor hereby makes, constitutes and
appoints Pledgee and any officer or agent thereof, as Pledgor's true and lawful
attorney-in-fact, for it, in the place and stead of Pledgor and in the name of
Pledgor or in Pledgee's own name, in Pledgee's discretion, to take any and all
appropriate action and to execute, authenticate and deliver any and all
documents, instruments and records that may be necessary or desirable to
accomplish the purposes of this Agreement, including but not limited to
executing, authenticating, filing and recording all such financing statements
and similar records, documents and instruments as Pledgee may deem necessary or
desirable to protect, perfect and validate Pledgee's security interest.
5. Representations, Warranties and Covenants of the Pledgor. The
Pledgor represents and warrants that (a) Pledgor owns all limited liability
company membership interests in Polaris Mall and there are no other members in
Polaris Mall; (b) it has full power, authority and legal right to pledge
forty-eight and 99/100 percent (48.99%) of its right, title and interest in and
to the Ownership Interest pursuant to this Pledge Agreement; and (c) the pledge,
assignment and delivery of the Ownership Interest pursuant to this Pledge
Agreement will create a valid security interest in, all right, title or interest
of the Pledgor in or to the Ownership Interest, and the proceeds thereof,
subject to no prior pledge, lien, mortgage, hypothecation, security interest,
charge, option or encumbrance or to any agreement purporting to grant to any
third party a security interest in the property or assets of Pledgor which would
include the Ownership Interest. The Pledgor covenants and agrees that such
Pledgor will defend Pledgee's right, title and security interest in and to the
Collateral against the claims and demands of all persons whomsoever.
6. No Dispositions, etc. Without the prior written consent of
Pledgee, the provisions of the last sentence of Section 1 hereof, the Pledgor
agrees to not sell, assign,
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transfer, exchange or otherwise dispose of, or grant any option with respect to,
the Collateral, nor to create, incur or permit to exist any pledge, lien,
mortgage, hypothecation, security interest, charge, option or any other
encumbrance with respect to any of the Collateral, or any interest therein, or
any proceeds thereof, except for the lien and security interest provided for by
this Pledge Agreement.
7. Sale of Collateral.
(a) Pledgor recognizes that upon the exercise by Pledgee
of the remedies provided in Section 3 hereof, Pledgee may be unable to effect a
public sale of any or all of the Ownership Interest by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, applicable
state securities laws and the organizational documents pertaining to the
Ownership Interest, but may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers who will be obliged to agree, among
other things, to acquire such securities for their own account for investment
and not with a view to the distribution or resale thereof. Pledgor acknowledges
and agrees that any such private sale (even though otherwise conducted in a
commercially reasonable manner) may result in prices and other terms less
favorable to the seller than if such sale were a public sale and,
notwithstanding such circumstances, agrees that such private sale shall be made
in accordance with the UCC. Pledgee shall be under no obligation to delay a sale
of any of the Ownership Interest for the period of time necessary to permit the
issuer thereof to register such securities for public sale under the Securities
Act of 1933, or under applicable state securities laws, even if the issuer would
agree to do so.
(b) Pledgor further agrees to do or cause to be done all
such other acts and things as may be necessary to make such sale or sales of any
portion or all of the Ownership Interest valid and binding and in compliance
with any and all applicable laws, regulations, orders, writs, injunctions,
decrees or awards of any and all courts, arbitrators or governmental
instrumentalities, domestic or foreign, having jurisdiction over any such sale
or sales, all at Pledgor's expense; provided, however, that Pledgor shall not be
required to register the Ownership Interest under any state or federal
securities laws. Pledgor further agrees that a breach of any of the covenants
contained in this paragraph 6 will cause irreparable injury to Pledgee, that
Pledgee has no adequate remedy at law in respect of such breach and, as a
consequence, agrees that each and every covenant contained in this paragraph
shall be specifically enforceable against Pledgor. 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 event of default has occurred under
the Loan Documents.
8. Further Assurances. Pledgor agrees that, at any time and from
time to time upon the written request of Pledgee, Pledgor will execute and
deliver such further documents and do such further acts and things as Pledgee
may reasonably request in order to effect the purposes of this Pledge Agreement.
9. Severability. Any provision of this Pledge Agreement which is
prohibited or unenforceable in any jurisdiction shall as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the
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remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10. No Waiver; Cumulative Remedies. Pledgee shall not, by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by
Pledgee, and then only to the extent therein set forth. A waiver by Pledgee of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which Pledgee would otherwise have on any future
occasion. No failure to exercise nor any delay in exercising on the part of
Pledgee, any right, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and may be exercised singly or concurrently, and are not
exclusive of any rights or remedies provided by law.
11. Binding Effect. This Pledge Agreement and all obligations of
Pledgor hereunder shall be binding upon the successors and assigns of Pledgor,
and shall, together with the rights and remedies of Pledgee hereunder, inure to
the benefit of Pledgee and its successors and assigns. This Pledge Agreement
shall be governed by, and construed and interpreted in accordance with, the laws
of the State of Ohio.
PLEDGOR: Glimcher Properties Limited Partnership,
a Delaware limited partnership
By: Glimcher Properties Corporation, its sole
general partner, A Delaware corporation
By:______________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice-President
BANK ONE, NA, a national banking association
By:______________________________________________
Its:_____________________________________________
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ACKNOWLEDGEMENT OF POLARIS MALL, LLC
Polaris Mall, LLC acknowledges the grant of this Pledge Agreement
concerning the Ownership Interest and agrees to legend its books and records
accordingly.
POLARIS MALL, LLC
By: Glimcher Properties Limited Partnership, a
Delaware limited partnership
By: Glimcher Properties Corporation, its sole
general partner, a Delaware corporation
By:______________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice-President
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