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Exhibit 10.105
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GUARANTOR: Glimcher Realty Trust DEBTOR: Glimcher Properties
Limited Partnership
ADDRESS: 00 Xxxxx Xxxxx Xxxxxx ADDRESS: 00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 Xxxxxxxx, Xxxx 00000
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GUARANTY
For the purpose of inducing Bankers Trust Company (hereinafter referred to as
"Bank") to lend money or advance credit to, or renew, extend or forbear from
demanding immediate payment of the Obligations of Glimcher Properties Limited
Partnership (hereinafter referred to as "Debtor"), the undersigned (hereinafter
referred to as "Guarantors" whether one or more), jointly and severally if more
than one (which joint and several liability shall exist regardless of whether
additional Guarantors have evidenced or may in the future evidence their
undertaking by executing this Guaranty, by co-signing one or more promissory
notes or other instruments of indebtedness, by executing one or more separate
agreements of guaranty of any or all of the Obligations referred to herein or
otherwise), hereby unconditionally guarantee the prompt and full payment to Bank
when due, whether by acceleration or otherwise, of all Obligations of any kind
for which Debtor is now or may hereafter become liable to Bank in any manner.
The word "Obligations" is used in its most comprehensive sense and includes,
without limitation, all indebtedness, debts and liabilities (including
principal, interest, late charges, collection costs, attorneys' fees and the
like) of Debtor to Bank, either created by Debtor alone or together with another
or others, primary or secondary, secured or unsecured, absolute or contingent,
liquidated or unliquidated, direct or indirect, whether evidenced by note,
draft, application for letter of credit, agreements of guaranty or otherwise,
and any and all renewals of, extensions of or substitutes therefor, to the
extent that such Obligations arise from or are connected with indebtedness owed
by Debtor to Bank by reason of credit extended or to be extended to Debtor in
the principal amount of $25,000,000.00, pursuant to a promissory note dated as
of June __, 1999, and a Second Amended and Restated Loan Agreement dated as of
May 15, 1997, as amended by that certain First Amendment dated June __, 1999.
Guarantors, and each of them, hereby promise that if one or more of the
Obligations are not paid promptly when due, they, and each of them, will, upon
request of Bank, pay the Obligations to Bank, irrespective of any action or lack
of action on Bank's part in connection with the acquisition, perfection,
possession, enforcement or disposition of any or all Obligations or any or all
security therefor or otherwise, and further irrespective of any invalidity in
any or all Obligations, the unenforceability thereof or the insufficiency,
invalidity or unenforceability of any security therefor.
Guarantors waive notice of any and all acceptances of this Guaranty. This
Guaranty is a continuing guaranty, and, in addition to covering all present
Obligations of Debtor to Bank, will extend to all future Obligations of Debtor
to Bank, and this whether such Obligations are reduced or entirely extinguished
and thereafter increased or reincurred. This Guaranty is made and will remain in
effect as to any and all Obligations of Debtor incurred or arising prior to
receipt by the
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loan officer of Bank who is handling Debtor's Obligations of written notice of
termination of this Guaranty. No such written notice or other revocation will in
any way affect the duties of Guarantors to Bank with respect to either
Obligations incurred by Debtor or instruments executed by Debtor prior to the
receipt of such notice by such loan officer of Bank. In addition, no such
written notice or other revocation will in any way affect the liabilities of
Guarantors to Bank with respect to revolving Obligations of Debtor on which
loans or advances are made, whether such loans or advances are made prior or
subsequent to such notice. Revocation by any one or more of Guarantors will not
affect the duties of the remaining Guarantor or Guarantors.
Bank's rights hereunder shall be reinstated and revived, and this Guaranty shall
be fully enforceable, with respect to any amount at any time paid on account of
the Obligations which thereafter shall be required to be restored or returned by
Bank as a result of the bankruptcy, insolvency or reorganization of Debtor,
Guarantors, or any other person, or as a result of any other fact or
circumstance, all as though such amount had not been paid.
Guarantors waive any claims or other rights which they might now have or
hereafter acquire against Debtor or any other person, guarantor, maker or
endorser primarily or contingently liable on the Obligations that arise from the
existence or performance of Guarantors' obligations under this Guaranty or under
any instrument or agreement with respect to any property constituting collateral
or security herefor, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, or any right to
participate in any claim or remedy of Bank against Debtor or any collateral
security therefor which Bank now has or hereafter acquires; whether such claim,
remedy or right arises in equity, under contract or statute, at common law, or
otherwise.
Notwithstanding anything to the contrary herein, the Guarantors' obligations
hereunder shall be limited to a maximum aggregate amount equal to the largest
amount that would not render such Guarantors' obligations thereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of the
Bankruptcy Code or any applicable provisions of comparable state law
(collectively, the "Fraudulent Transfer Laws"), in each case after giving effect
to all other liabilities of Guarantors, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such entity in respect to intercompany indebtedness to Debtor
or other affiliates of Debtor to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by Guarantors hereunder) and
after giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation or
contribution of Guarantors pursuant to (i) applicable law or (ii) any agreement
providing for an equitable allocation among Guarantors and other affiliates of
Debtor of obligations arising under guarantees by such parties (such limitation
being the "Cap").
Guarantors agree that the Obligations may at any time and from time to time
exceed the Cap of such Guarantors without impairing this Guaranty or, subject to
the previous paragraph, affecting the rights and remedies of Bank hereunder.
Guarantors, and each of them, hereby agree that, to the extent that each or any
Guarantors shall have paid more than their proportionate share of any payment
made hereunder, such Guarantors shall be entitled to seek and receive
contribution from and against any other Guarantors hereunder who have not paid
their proportionate share of such payment. Guarantors' right of contribution
shall be subject to the terms and conditions of the waiver of subrogation
contained in the paragraph below. The provisions of this paragraph relating to
Guarantors' rights to contribution shall in no respect limit the obligations and
liabilities of Guarantors to Bank, and Guarantors shall remain liable to Bank
for the full amount guaranteed by Guarantors hereunder.
Guarantors waive presentment, demand, protest, notice of protest and notice of
dishonor or other nonpayment of any and all Obligations and further waive notice
of sale or other disposition of any collateral or security now held or hereafter
acquired by Bank. Guarantors agree that no extension of time, whether one or
more, nor any other indulgence granted by Bank to Debtor, or to Guarantors, or
any of them, and no omission or delay on Bank's part in exercising any right
against, or in taking any action to collect from or pursue Bank's remedies
against Debtor or
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Guarantors, or any of them, will release, discharge or modify the duties of
Guarantors. Guarantors agree that Bank may, without notice to or further consent
from Guarantors, release or modify any collateral, security or other guaranties
now held or hereafter acquired, or substitute other collateral, security or
other guaranties, and no such action will release, discharge or modify the
duties of Guarantors hereunder. Guarantors further agree that Bank will not be
required to pursue or exhaust any of its rights or remedies against Debtor or
Guarantors, or any of them, with respect to payment of any of the Obligations,
or to pursue, exhaust or preserve any of its rights or remedies with respect to
any collateral, security or other guaranties given to secure the Obligations, or
to take any action of any sort, prior to demanding payment from or pursuing its
remedies against Guarantors.
Guarantors agree that any legal suit, action or proceeding arising out of or
relating to this Guaranty may be instituted in a state or federal court of
appropriate subject matter jurisdiction in the State of Ohio; waive any
objection which they may have now or hereafter to the laying of venue of any
such suit, action or proceeding; and irrevocably submit to the jurisdiction of
any such court in any such suit, action or proceeding.
WAIVER OF RIGHT TO TRIAL BY JURY
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GUARANTORS ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE BETWEEN
GUARANTORS AND BANK, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS
GUARANTY ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY.
ACCORDINGLY, GUARANTORS HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY AS TO ANY AND
ALL DISPUTES THAT MAY ARISE RELATING TO THIS GUARANTY OR TO ANY OF THE OTHER
INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
If any Obligation of Debtor is assigned by Bank, this Guaranty will inure to the
benefit of Bank's assignee, and to the benefit of any subsequent assignee, to
the extent of the assignment or assignments, provided that no assignment will
operate to relieve Guarantors, or any of them, from any duty to Bank hereunder
with respect to any unassigned Obligation. In the event that any one or more of
the provisions contained in this Guaranty or any application thereof shall be
determined to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and any
other applications thereof shall not in any way be affected or impaired thereby.
This Guaranty shall be construed in accordance with the law of the State of
Ohio.
This Guaranty and all documents, agreements, understandings and arrangements
relating to the transactions contemplated hereby have been or will be executed
or entered into on behalf of Glimcher Realty Trust by one or more officers or
trustees of Glimcher Realty Trust, which has been formed as a Maryland real
estate investment trust pursuant to a Declaration of Trust of Glimcher Realty
Trust dated as of September 1, 1993, in their capacities as officers or
trustees, and not individually, and neither the trustees, officers or
shareholders of Glimcher Realty Trust shall be bound or have any personal
liability hereunder or thereunder. Bank shall look solely to the assets of
Glimcher Realty Trust for satisfaction of any liability of Glimcher Realty Trust
in respect hereof and in respect of all documents, agreements, understandings
and arrangements relating hereto and will not seek recourse or commence any
action against any of the trustees, officers or shareholders of Glimcher Realty
Trust or any of their personal assets for the performance or payment of any
obligation of Glimcher Realty Trust hereunder or thereunder. The foregoing shall
also apply to any future documents, agreements, understandings, arrangements and
transactions hereunder between Glimcher Realty Trust and Bank.
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Executed and delivered at Columbus, Ohio, this __ day of June, 1999.
GUARANTOR:
GLIMCHER REALTY TRUST
By: Xxxxxxx X. Xxxxxxx
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Its: Executive Vice President, Chief
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Financial Officer and Chief
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Operating Officer
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