GUARANTY
Exhibit
10.121
This
Guaranty is made as of August 22, 2005 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
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 $300,000,000,
subject to future increases to up to $400,000,000 (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
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:
(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 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.
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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, 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.
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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
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.
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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:
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.
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.
By:
/s/
Xxxxxx X. Xxxxxxx
Xxxxxx
X.
Xxxxxxx
Executive
Vice President
GLIMCHER
PROPERTIES CORPORATION
By:
/s/
Xxxxxx X. Xxxxxxx
Xxxxxx
X.
Xxxxxxx
Executive
Vice President
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