Exhibit 10.61
GUARANTY
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This Guaranty is made as of December 14, 2006 by Glimcher Realty Trust, a
real estate investment trust organized under the laws of the State of Maryland
("Glimcher Trust") and Glimcher Properties Corporation, a Delaware corporation
("Glimcher Properties", and together with Glimcher Trust, collectively, the
"Guarantors"), to and for the benefit of KeyBank National Association,
individually ("KeyBank") and as administrative agent ("Administrative Agent")
for itself and the lenders under the Credit Agreement (as defined below) and
their respective successors and assigns (collectively, the "Lenders").
RECITALS
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X. Xxxxxxxx Properties Limited Partnership, a limited partnership organized
under the laws of the State of Delaware ("Borrower"), and Guarantors have
requested that the Lenders make a revolving credit facility available to
Borrower in an aggregate principal amount of up to $470,000,000, subject to
future increases up to $600,000,000 (the "Facility").
B. The Lenders have agreed to make available the Facility to Borrower
pursuant to the terms and conditions set forth in an Amended and Restated Credit
Agreement of even date herewith among Borrower, KeyBank, individually, and as
Administrative Agent, and the Lenders named therein (as amended, modified or
restated from time to time, the "Credit Agreement"). All capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to such terms
in the Credit Agreement.
C. Borrower has executed and delivered or will execute and deliver to the
Lenders promissory notes in the principal amount of each Lender's Commitment and
promissory notes in the principal amount, if any, of each Lender's Loan as
evidence of Borrower's indebtedness to each such Lender with respect to the
Facility (the promissory notes described above, together with any amendments or
allonges thereto, or restatements, replacements or renewals thereof, and/or new
promissory notes to new Lenders under the Credit Agreement, are collectively
referred to herein as the "Notes").
X. Xxxxxxxx Properties is the sole general partner in the Borrower and
Glimcher Trust is the owner of all of the stock of Glimcher Properties and
certain of the limited partnership interests in the Borrower. Guarantors
acknowledge that the extension of credit by the Administrative Agent and the
Lenders to Borrower pursuant to the Credit Agreement will benefit Guarantors by
enhancing the financial strength of the consolidated group of which Guarantors
and Borrower are members. The execution and delivery of this Guaranty by
Guarantors are conditions precedent to the performance by the Lenders of their
obligations under the Credit Agreement.
AGREEMENTS
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NOW, THEREFORE, Guarantors, in consideration of the matters described in
the foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, hereby agree as follows:
1. Guarantors absolutely, unconditionally, and irrevocably guaranty to each
of the Lenders:
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(a) the full and prompt payment of the principal of and interest on
the Notes when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, and the prompt payment of all sums
which may now be or may hereafter become due and owing under the Notes, the
Credit Agreement, and the other Loan Documents;
(b) the payment of all Enforcement Costs (as hereinafter defined in
Paragraph 7 hereof); and
(c) the full, complete, and punctual observance, performance, and
satisfaction of all of the obligations, duties, covenants, and agreements
of Borrower under the Credit Agreement and the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations."
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, as aforesaid, in
each case beyond the expiration of any applicable grace period, Guarantors
agree, on demand by the Administrative Agent or the holder of a Note, to pay all
the Facility Indebtedness and to perform all the Obligations as are then or
thereafter become due and owing or are to be performed under the terms of the
Notes, the Credit Agreement, and the other Loan Documents.
3. Guarantors do hereby waive (i) notice of acceptance of this Guaranty by
the Administrative Agent and the Lenders and any and all notices and demands of
every kind which may be required to be given by any statute, rule or law, (ii)
any defense, right of set-off or other claim which Guarantors may have against
Borrower or which Guarantors or Borrower may have against the Administrative
Agent or the Lenders or the holder of a Note, (iii) presentment for payment,
demand for payment (other than as provided for in Paragraph 2 above), notice of
nonpayment (other than as provided for in Paragraph 2 above) or dishonor,
protest and notice of protest, diligence in collection and any and all
formalities which otherwise might be legally required to charge Guarantors with
liability, (iv) any failure by the Administrative Agent and the Lenders to
inform Guarantors of any facts the Administrative Agent and the Lenders may now
or hereafter know about Borrower, the Facility, or the transactions contemplated
by the Credit Agreement, it being understood and agreed that the Administrative
Agent and the Lenders have no duty so to inform and that Guarantors are fully
responsible for being and remaining informed by Borrower of all circumstances
bearing on the existence or creation, or the risk of nonpayment of the Facility
Indebtedness or the risk of nonperformance of the Obligations, and (v) any and
all right to cause a marshalling of assets of Borrower or any other action by
any court or governmental body with respect thereto, or to cause the
Administrative Agent and the Lenders to proceed against any other security given
to a Lender in connection with the Facility Indebtedness or the Obligations.
Credit may be granted or continued from time to time by the Lenders to Borrower
without notice to or authorization from Guarantors, regardless of the financial
or other condition of Borrower at the time of any such grant or continuation.
The Administrative Agent and the Lenders shall have no obligation to disclose or
discuss with Guarantors the Lenders' assessment of the financial condition of
Borrower. Guarantors acknowledge that no representations of any kind whatsoever
have been made by the Administrative Agent and the Lenders to Guarantors. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon the Administrative Agent and the Lenders except as expressly set
forth in a writing duly signed and delivered on behalf of the Administrative
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Agent and the Lenders. Guarantors further agree that any exculpatory language
contained in the Credit Agreement, the Notes, and the other Loan Documents shall
in no event apply to this Guaranty, and will not prevent the Administrative
Agent and the Lenders from proceeding against Guarantors to enforce this
Guaranty.
4. Guarantors further agree that Guarantors' liability as guarantor shall
in no way be impaired by any renewals or extensions which may be made from time
to time, with or without the knowledge or consent of Guarantors of the time for
payment of interest or principal under a Note or by any forbearance or delay in
collecting interest or principal under a Note, or by any waiver by the
Administrative Agent and the Lenders under the Credit Agreement, or any other
Loan Documents, or by the Administrative Agent or the Lenders' failure or
election not to pursue any other remedies they may have against Borrower, or by
any change or modification in a Note, the Credit Agreement, or any other Loan
Documents, or by the acceptance by the Administrative Agent or the Lenders of
any security or any increase, substitution or change therein, or by the release
by the Administrative Agent and the Lenders of any security or any withdrawal
thereof or decrease therein, or by the application of payments received from any
source to the payment of any obligation other than the Facility Indebtedness,
even though a Lender might lawfully have elected to apply such payments to any
part or all of the Facility Indebtedness, it being the intent hereof that
Guarantors shall remain liable as principal for payment of the Facility
Indebtedness and performance of the Obligations until all indebtedness has been
paid in full and the other terms, covenants and conditions of the Credit
Agreement, and other Loan Documents and this Guaranty have been performed,
notwithstanding any act or thing which might otherwise operate as a legal or
equitable discharge of a surety. Guarantors further understand and agree that
the Administrative Agent and the Lenders may at any time enter into agreements
with Borrower to amend and modify a Note, the Credit Agreement or any of the
other Loan Documents, or any thereof, and may waive or release any provision or
provisions of a Note, the Credit Agreement, or any other Loan Document and, with
reference to such instruments, may make and enter into any such agreement or
agreements as the Administrative Agent, the Lenders and Borrower may deem proper
and desirable, without in any manner impairing this Guaranty or any of the
Administrative Agent and the Lenders' rights hereunder or any of Guarantors'
obligations hereunder.
5. This is an absolute, unconditional, complete, present and continuing
guaranty of payment and performance and not of collection. Guarantors agree that
their obligations hereunder shall be joint and several with each other and with
any and all other guarantees given in connection with the Facility from time to
time. Guarantors agree that this Guaranty may be enforced by the Administrative
Agent and the Lenders without the necessity at any time of resorting to or
exhausting any security or collateral, if any, given in connection herewith or
with a Note, the Credit Agreement, or any of the other Loan Documents or by or
resorting to any other guaranties, and Guarantors hereby waive the right to
require the Administrative Agent and the Lenders to join Borrower in any action
brought hereunder or to commence any action against or obtain any judgment
against Borrower or to pursue any other remedy or enforce any other right.
Guarantors further agree that nothing contained herein or otherwise shall
prevent the Administrative Agent and the Lenders from pursuing concurrently or
successively all rights and remedies available to them at law and/or in equity
or under a Note, the Credit Agreement or any other Loan Documents, and the
exercise of any of their rights or the completion of any of their remedies shall
not constitute a discharge of any of Guarantors' obligations hereunder, it being
the purpose and intent of Guarantors that the obligations of such Guarantors
hereunder shall be primary, absolute, independent and unconditional under any
and all circumstances whatsoever. Neither Guarantors' obligations under this
Guaranty nor any remedy for the enforcement thereof shall be impaired, modified,
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changed or released in any manner whatsoever by any impairment, modification,
change, release or limitation of the liability of Borrower under a Note, the
Credit Agreement or any other Loan Document or by reason of Borrower's
bankruptcy or by reason of any creditor or bankruptcy proceeding instituted by
or against Borrower. This Guaranty shall continue to be effective and be deemed
to have continued in existence or be reinstated (as the case may be) if at any
time payment of all or any part of any sum payable pursuant to a Note, the
Credit Agreement or any other Loan Document is rescinded or otherwise required
to be returned by the payee upon the insolvency, bankruptcy, or reorganization
of the payor, all as though such payment to such Lender had not been made,
regardless of whether such Lender contested the order requiring the return of
such payment. The obligations of Guarantors pursuant to the preceding sentence
shall survive any termination, cancellation, or release of this Guaranty.
6. This Guaranty shall be assignable by a Lender to any assignee of all or
a portion of such Lender's rights under the Loan Documents.
7. If: (i) this Guaranty, a Note, or any of the Loan Documents are placed
in the hands of an attorney for collection or is collected through any legal
proceeding; (ii) an attorney is retained to represent the Administrative Agent
or any Lender in any bankruptcy, reorganization, receivership, or other
proceedings affecting creditors' rights and involving a claim under this
Guaranty, a Note, the Credit Agreement, or any Loan Document; (iii) an attorney
is retained to enforce any of the other Loan Documents or to provide advice or
other representation with respect to the Loan Documents in connection with an
enforcement action or potential enforcement action; or (iv) an attorney is
retained to represent the Administrative Agent or any Lender in any other legal
proceedings whatsoever in connection with this Guaranty, a Note, the Credit
Agreement, any of the Loan Documents, or any property securing the Facility
Indebtedness (other than any action or proceeding brought by any Lender or
participant against the Administrative Agent alleging a breach by the
Administrative Agent of its duties under the Loan Documents), then Guarantors
shall pay to the Administrative Agent or such Lender upon demand all reasonable
attorney's fees, costs and expenses, including, without limitation, court costs,
filing fees and all other costs and expenses incurred in connection therewith
(all of which are referred to herein as "Enforcement Costs"), in addition to all
other amounts due hereunder.
8. The parties hereto intend that each provision in this Guaranty comports
with all applicable local, state and federal laws and judicial decisions.
However, if any provision or provisions, or if any portion of any provision or
provisions, in this Guaranty is found by a court of law to be in violation of
any applicable local, state or federal ordinance, statute, law, administrative
or judicial decision, or public policy, and if such court should declare such
portion, provision or provisions of this Guaranty to be illegal, invalid,
unlawful, void or unenforceable as written, then it is the intent of all parties
hereto that such portion, provision or provisions shall be given force to the
fullest possible extent that they are legal, valid and enforceable, that the
remainder of this Guaranty shall be construed as if such illegal, invalid,
unlawful, void or unenforceable portion, provision or provisions were not
contained therein, and that the rights, obligations and interest of the
Administrative Agent and the Lender or the holder of a Note under the remainder
of this Guaranty shall continue in full force and effect.
9. Any indebtedness of Borrower to Guarantors now or hereafter existing is
hereby subordinated to the Facility Indebtedness. Guarantors will not seek,
accept, or retain for Guarantors' own account, any payment from Borrower on
account of such subordinated debt at any time when a Default exists under the
Credit Agreement or the Loan Documents, and any such payments to Guarantors made
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while any Default then exists under the Credit Agreement or the Loan Documents
on account of such subordinated debt shall be collected and received by
Guarantors in trust for the Lenders and shall be paid over to the Administrative
Agent on behalf of the Lenders on account of the Facility Indebtedness without
impairing or releasing the obligations of Guarantors hereunder.
10. Guarantors hereby subordinate to the Facility Indebtedness any and all
claims and rights, including, without limitation, subrogation rights,
contribution rights, reimbursement rights and set-off rights, which Guarantors
may have against Borrower arising from a payment made by Guarantors under this
Guaranty and agree that, until the entire Facility Indebtedness is paid in full,
not to assert or take advantage of any subrogation rights of Guarantors or the
Lenders or any right of Guarantors or the Lenders to proceed against (i)
Borrower for reimbursement, or (ii) any other guarantor or any collateral
security or guaranty or right of offset held by the Lenders for the payment of
the Facility Indebtedness and performance of the Obligations, nor shall
Guarantors seek or be entitled to seek any contribution or reimbursement from
Borrower or any other guarantor in respect of payments made by Guarantors
hereunder. It is expressly understood that the agreements of Guarantors set
forth above constitute additional and cumulative benefits given to the Lenders
for their security and as an inducement for their extension of credit to
Borrower.
11. Any amounts received by a Lender from any source on account of any
indebtedness may be applied by such Lender toward the payment of such
indebtedness, and in such order of application, as a Lender may from time to
time elect.
12. Guarantors hereby submit to personal jurisdiction in the State of Ohio
for the enforcement of this Guaranty and waives any and all personal rights to
object to such jurisdiction for the purposes of litigation to enforce this
Guaranty. Guarantors hereby consent to the jurisdiction of either the Cuyahoga
County Court of Common Pleas in Cleveland, Ohio or the United States District
Court in Cleveland, Ohio in any action, suit, or proceeding which the
Administrative Agent or a Lender may at any time wish to file in connection with
this Guaranty or any related matter. Guarantors hereby agree that an action,
suit, or proceeding to enforce this Guaranty may be brought in any state or
federal court in the State of Ohio and hereby waives any objection which
Guarantors may have to the laying of the venue of any such action, suit, or
proceeding in any such court; provided, however, that the provisions of this
Paragraph shall not be deemed to preclude the Administrative Agent or a Lender
from filing any such action, suit, or proceeding in any other appropriate forum.
13. All notices and other communications provided to any party hereto under
this Agreement or any other Loan Document shall be in writing or by telex or by
facsimile and addressed or delivered to such party at its address set forth
below or at such other address as may be designated by such party in a notice to
the other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given when transmitted. Notice may be given as
follows:
To Guarantors:
Glimcher Properties Corporation
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
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With a copy to:
Glimcher Realty Trust
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
To KeyBank as Administrative Agent and as a Lender:
KeyBank National Association
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Real Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, LLP
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to any other Lender, to its address set forth in the Credit
Agreement.
14. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Guarantors and shall inure
to the benefit of the Administrative Agent and the Lenders' successors and
assigns.
15. This Guaranty shall be construed and enforced under the internal laws
of the State of Ohio.
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16. GUARANTORS, THE ADMINISTRATIVE AGENT AND THE LENDERS, BY THEIR
ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH
IS THE SUBJECT OF THIS GUARANTY AND AGREE THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, Guarantors have executed and delivered this Guaranty as
of the date first written above.
GLIMCHER REALTY TRUST
By: ________________________
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
GLIMCHER PROPERTIES CORPORATION
By: ________________________
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
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