EXHIBIT 10.42
Lender's Loan No. 10021677
KEY PRINCIPAL'S GUARANTY AGREEMENT
THIS KEY PRINCIPAL'S GUARANTY AGREEMENT (this "GUARANTY") is made
effective as of October 17, 2003, by and between GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, whose address is 000 Xxxx Xxx
Xxxxxx, Xxxxxxxx, Xxxx 00000 ("KEY PRINCIPAL") and KEYBANK NATIONAL ASSOCIATION,
a national banking association, its successors and assigns (hereinafter
"LENDER").
RECITALS
The following recitals are a material part of this instrument:
A. Lender is making a loan in the principal sum of
$114,000,000.00 (the "LOAN") to MFC Beavercreek, LLC, a Delaware limited
liability company, ("BORROWER"), on or about the date of this Agreement. Key
Principal is the sole member of Borrower and has a significant personal
financial interest in Lender's making of the Loan to Borrower, and will realize
significant personal financial benefit from the Loan. The Loan is evidenced a
promissory note of even date herewith in the principal amount of $85,500,000.00
(together with all extensions, renewals, modifications, consolidations,
substitutions, replacements, restatements and increases thereof, the "A-1
NOTE"), and a promissory note of even date herewith in the principal amount of
$28,500,000.00 (together with all extensions, renewals, modifications,
consolidations, substitutions, replacements, restatements and increases thereof,
the "A-2 NOTE") (the A-1 Note and the A-2 Note together with all extensions,
renewals, modifications, consolidations, substitutions, replacements,
restatements and increases thereof shall individually and collectively be
referred to as the "NOTE"), and is secured in part by a first deed of trust,
mortgage or deed to secure debt (the "SECURITY INSTRUMENT") encumbering
Borrower's interest in certain property in Xxxxxx County, Ohio, which is
commonly known as the Mall at Fairfield Commons (the real estate, together with
all improvements thereon and personal property associated therewith, is
hereinafter collectively called the "PROPERTY").
B. The Note contains in Section 21 thereof a nonrecourse clause
by which Lender agrees not to seek a personal judgment against Borrower in the
event of default thereunder, subject to certain limitations and exceptions
thereto set forth in Section 21(a) thereof (such limitations and exceptions are
hereinafter sometimes collectively referred to as the "NONRECOURSE CARVE-OUTS"
and individually as a "NONRECOURSE CARVE-OUT", which are incorporated by this
reference as though fully set forth herein).
C. Lender has required that Key Principal guaranty to Lender
the payment of the Nonrecourse Carve-Outs and, subject to the provisions of
Section 2.1(b) of this Agreement, the Payment Liabilities (as such term is
defined in Section 2.1(b) hereof).
D. Lender is unwilling to make the Loan to Borrower without a
financially substantial person or entity being liable for the Nonrecourse
Carve-Outs and the Payment Liabilities.
E. For the above reasons, and with the consent and approval of
Key Principal, Borrower has offered to Lender the guaranty of Key Principal as
to the Nonrecourse Carve-Outs and the Payment Liabilities, as part of the
security to Lender for the making of the Loan. Lender would not make the Loan
but for this Guaranty. The Note, Security Instrument, and all other documents
and instruments evidencing and/or securing the Note or now or hereafter executed
by Borrower or others in connection with or related to the Loan including any
assignments of leases and rents, other assignments, security agreements,
financing statements, guaranties, indemnity agreements (including environmental
indemnity agreements), letters of credit, or escrow/holdback arrangements,
together with all amendments, modifications, substitutions or replacements
thereof, are sometimes herein collectively referred to as the "LOAN DOCUMENTS".
The Loan Documents are hereby incorporated by this reference as if fully set
forth in this Guaranty.
F. In consideration of the substantial benefits flowing to Key
Principal by virtue of the Loan to Borrower, Key Principal has agreed to fully
guarantee any liability of Borrower under the Nonrecourse Carve-Outs and,
subject to the provisions of Section 2.1(b) hereof, the Payment Liabilities. Key
Principal wishes to set forth this guaranty in writing for the benefit of
Lender.
AGREEMENT
In consideration of Lender's agreement to make the Loan to Borrower; in
consideration of the terms, covenants and provisions of the Loan Documents; and
with the understanding and agreement on the part of Key Principal that the Loan
and other financial accommodations granted by Lender to Borrower are and will be
of direct interest, benefit and advantage to Key Principal, Key Principal hereby
states and agrees as follows:
1. REQUEST TO MAKE LOAN. Key Principal hereby requests that
Lender make the Loan to Borrower and that Lender extend credit and give
financial accommodations to Borrower, as Borrower may desire and as Lender may
grant, from time to time, whether to the Borrower alone or to the Borrower and
others, and specifically to make the Loan described in the Loan Documents.
2. GUARANTY OF LIABILITIES.
2.1 Key Principal hereby absolutely and unconditionally
guarantees full and punctual payment and performance when due of the following
(collectively the "LIABILITIES"):
(a) all amounts that shall become due and owing to
Lender at any time by virtue of or arising out of any of the acts,
omissions, circumstances or conditions included in any of the
Nonrecourse Carve-Outs, including but not limited to all renewals or
extensions of any amount owing or obligation under the Nonrecourse
Carve-Outs, all liability under the Nonrecourse Carve-Outs whether
arising under the original Loan or any extension, modification, future
advance, increase, amendment or modification
thereof, interest due on amounts owing under the Nonrecourse Carve-Outs
at the Default Rate specified in the Note, all expenses, including
attorneys' fees, incurred by Lender in connection with the collection
of any of the liabilities or other indebtedness now or hereafter owed
by Borrower to Lender under any of the Nonrecourse Carve-Outs, and all
expenses, including attorneys' fees, incurred by Lender in connection
with the enforcement of all rights and remedies under the Loan
Documents or any other security therefor or in the enforcement of any
of Lender's rights under this Guaranty or under any of the Loan
Documents or in protecting Lender or its interest in any of the
collateral securing the Loan (including attorney's fees and litigation
expenses related to or arising out of any lawsuit or proceeding brought
by or against Lender in any court or other forum, including actions or
proceedings brought by or on behalf of Borrower's bankruptcy estate or
any guarantor or indemnitor), to the extent the same relate to amounts
or obligations owing under the Nonrecourse Carve-Outs (all of the
foregoing are sometimes hereinafter collectively referred to as the
"NONRECOURSE CARVE-OUT LIABILITIES").
(b) (i) all payments due under the Note,
including the repayment of all additional advances of any kind which
may be made by Lender to Borrower, whether at stated maturity, by
acceleration or otherwise, (ii) any and all renewals or extensions of
any such item of indebtedness or obligation or any part thereof; (iii)
all obligations and indebtedness of any kind or nature arising under
any of the Loan Documents; (iv) any future advances related to the Loan
Documents which may be made by Lender to Borrower, whether made to
protect the security or otherwise, and whether or not evidenced by
additional promissory notes or other evidences of indebtedness executed
and delivered by Borrower or others on behalf of Borrower; (v) all
interest due on all of the same; (vi) all expenses, including
attorney's fees, incurred by Lender in connection with the collection
of any of the liabilities or other indebtedness now or hereafter owed
by Borrower to Lender, the enforcement of all rights and remedies under
the Loan Documents or any other security therefor or the enforcement of
any of Lender's rights under this Guaranty or under any of the Loan
Documents, or incurred by Lender in protecting Lender or its interest
in any of the collateral securing the Loan (including attorney's fees
and litigation expenses related to or arising out of any lawsuit or
proceeding brought by or against Lender in any court or other forum,
including actions or proceedings brought by or on behalf of Borrower's
bankruptcy estate or any guarantor or indemnitor), (all of the above
are sometimes hereinafter collectively referred to as the "PAYMENT
LIABILITIES"); PROVIDED HOWEVER, notwithstanding anything herein to the
contrary, Lender shall not demand payment or commence any action to
enforce Key Principal's liability under this Section 2.1(b) until the
Property or any part thereof at any time hereafter becomes property of
the estate of, or an asset in a bankruptcy, insolvency, receivership,
liquidation, winding up, or other similar type of proceeding or if
Borrower shall at any time hereafter make a general assignment for the
benefit of its creditors, at which time Lender may immediately commence
enforcement of Key Principal's liability hereunder.
2.2 Upon the request of Lender, Key Principal shall
immediately pay or perform the Liabilities when they or any of them become due
or are to be paid or performed under the terms of any of the Loan Documents. Any
amounts received by Lender from any
sources and applied by Lender towards the payment of the Liabilities shall be
applied in such order of application as Lender may from time to time elect in
its sole discretion. All Liabilities shall conclusively be presumed to have been
created, extended, contracted, or incurred by Lender in reliance upon this
Guaranty and all dealings between Borrower and Lender shall likewise be presumed
to be in reliance upon this Guaranty.
3. ADDITIONAL ADVANCES, RENEWALS, EXTENSIONS AND RELEASES. Key
Principal hereby agrees and consents that, without notice to or further consent
by Key Principal, Lender may make additional advances to Borrower under the Loan
Documents, and the obligations of Borrower or any other party for the
Liabilities may be renewed, extended, modified, accelerated or released by
Lender as Lender may deem advisable in its sole discretion, and any collateral
the Lender may hold or in which the Lender may have an interest may be
exchanged, sold, released or surrendered by it, as it may deem advisable in its
sole discretion, without impairing or affecting the obligations of Key Principal
hereunder in any way whatsoever.
4. WAIVERS.
4.1 Key Principal hereby waives each and every one of
the following: (a) any and all notice of the acceptance of this Guaranty or of
the creation, renewal or accrual of any Liabilities, present or future
(including without limitation any additional advances made by Lender under the
Loan Documents); (b) the reliance of Lender upon this Guaranty; (c) notice of
the existence or creation of any Loan Document or of any of the Liabilities; (d)
protest, presentment, demand for payment, notice of default or nonpayment,
notice of dishonor to or upon Key Principal, Borrower or any other party liable
for any of the Liabilities; (e) any and all other notices or formalities to
which Key Principal may otherwise be entitled, including notice of Lender's
granting the Borrower any indulgences or extensions of time on the payment of
any Liabilities; and (f) promptness in making any claim or demand hereunder.
4.2 No delay or failure on the part of Lender in the
exercise of any right or remedy against either Borrower or Key Principal shall
operate as a waiver thereof, and no single or partial exercise by Lender of any
right or remedy herein shall preclude other or further exercise thereof or of
any other right or remedy whether contained herein or in the Note or any of the
other Loan Documents. No action of Lender permitted hereunder shall in any way
impair or affect this Guaranty.
4.3 Key Principal acknowledges and agrees that Key
Principal shall be and remain absolutely and unconditionally liable for the full
amount of all Liabilities notwithstanding any of the following, and Key
Principal waives any counterclaims to which Key Principal may be entitled, based
upon any of the following, in any proceeding (without prejudice to assert the
same in a separate cause of action at a later time):
(a) Any or all of the Liabilities being or
hereafter becoming invalid or otherwise unenforceable for any
reason whatsoever or being or hereafter becoming released or
discharged, in whole or in part, whether pursuant to a
proceeding under any bankruptcy or insolvency laws or
otherwise; or
(b) Lender failing or delaying to properly
perfect or continue the perfection of any security interest or
lien on any property which secures any of the Liabilities, or
to protect the property covered by such security interest or
enforce its rights respecting such property or security
interest; or
(c) Lender failing to give notice of any
disposition of any property serving as collateral for any
Liabilities or failing to dispose of such collateral in a
commercially reasonable manner; or
(d) Any other circumstance which might
otherwise constitute a defense.
5. GUARANTY OF PAYMENT. Key Principal agrees that Key Principal's
liability hereunder is primary, absolute and unconditional without regard to the
liability of any other party. This Guaranty shall be construed as an absolute,
irrevocable and unconditional guaranty of payment and performance (and not a
guaranty of collection), without regard to the validity, regularity or
enforceability of any of the Liabilities.
6. GUARANTY EFFECTIVE REGARDLESS OF COLLATERAL. This Guaranty is made
and shall continue as to any and all Liabilities without regard to any liens or
security interests in any collateral; the validity, effectiveness or
enforceability of such liens or security interests; or the existence or validity
of any other guaranties or rights of Lender against any other obligors. Any and
all such collateral, security, guaranties and rights against other obligors, if
any, may from time to time without notice to or consent of Key Principal, be
granted, sold, released, surrendered, exchanged, settled, compromised, waived,
subordinated or modified, with or without consideration, on such terms or
conditions as may be acceptable to Lender, without in any manner affecting or
impairing the liabilities of Key Principal.
7. ADDITIONAL CREDIT. Credit or financial accommodation may be granted
or continued from time to time by Lender to Borrower regardless of Borrower's
financial or other condition at the time of any such grant or continuation,
without notice to or the consent of Key Principal and without affecting Key
Principal's obligations hereunder. Lender shall have no obligation to disclose
or discuss with Key Principal its assessment of the financial condition of
Borrower.
8. RESCISSION OF PAYMENTS. If at any time payment of any of the
Liabilities or any part thereof is rescinded or must otherwise be restored or
returned by Lender upon the insolvency, bankruptcy or reorganization of Borrower
or under any other circumstances whatsoever, this Guaranty shall, upon such
rescission, restoration or return, continue to be effective or shall (if
previously terminated) be reinstated, as the case may be, as if such payment had
not been made.
9. ADDITIONAL WAIVERS. So long as any portion of the Liabilities
remains unpaid or any portion of the Liabilities (or any security therefor)
which has been paid to Lender remains subject to invalidation, reversal or
avoidance as a preference, fraudulent transfer or for any other reason
whatsoever (whether under bankruptcy or non-bankruptcy law) to being set aside
or required to be repaid to Borrower as a debtor in possession or to any trustee
in bankruptcy, Key
Principal irrevocably waives (a) any rights which it may acquire against
Borrower by way of subrogation under this Guaranty or by virtue of any payment
made hereunder (whether contractual, under the Bankruptcy Code or similar state
or federal statute, under common law, or otherwise), (b) all contractual, common
law, statutory or other rights of reimbursement, contribution, exoneration or
indemnity (or any similar right) from or against Borrower which may have arisen
in connection with this Guaranty, (c) any right to participate in any way in the
Loan Documents or in the right, title and interest in any collateral securing
the payment of Borrower's obligations to Lender, and (d) all rights, remedies
and claims relating to any of the foregoing. If any amount shall be paid to Key
Principal on account of subrogation rights or otherwise, such amount shall be
held in trust for its benefit and shall forthwith be paid to Lender to be
applied to Borrower's obligations secured by the Security Instrument, whether
matured or unmatured, in such order as Lender, in its sole discretion, shall
determine.
10. INDEPENDENT OBLIGATIONS. The obligations of Key Principal are
independent of the obligations of Borrower, and a separate action or actions for
payment, damages or performance may be brought and prosecuted against Key
Principal, whether or not an action is brought against Borrower or the security
for Borrower's obligations, and whether or not Borrower is joined in any such
action or actions. Key Principal expressly waives any requirement that Lender
institute suit against Borrower or any other persons, or exercise or exhaust its
remedies or rights against Borrower or against any other person, other
guarantor, or other collateral securing all or any part of the Liabilities,
prior to enforcing any rights Lender has under this Guaranty or otherwise.
Lender may pursue all or any such remedies at one or more different times
without in any way impairing its rights or remedies hereunder. Key Principal
hereby further waives the benefit of any statute of limitations affecting its
liability hereunder or the enforcement hereof.
11. TRANSFER OF GUARANTY. Lender may, without notice of any kind, sell,
assign or transfer all or any of its rights under this Guaranty. In any such
event each and every immediate and successive assignee, transferee, or holder of
all or any of the Lender's rights under this Guaranty shall have the full right
to enforce this Guaranty by suit or otherwise, for the benefit of such assignee,
transferee or holder as fully as if such assignee, transferee or holder were
herein by name specifically given such right, powers and benefits. Lender shall
have an unimpaired right, prior and superior to that of any of such assignee,
transferee or holder, to enforce this Guaranty for the benefit of Lender, with
regard to those rights under this Guaranty which Lender has not sold, assigned
or transferred.
12. SUBORDINATION OF INDEBTEDNESS OF BORROWER TO KEY PRINCIPAL. Any
indebtedness of Borrower to Key Principal now or hereafter existing is hereby
subordinated to the prior payment in full of the Liabilities. Key Principal
agrees that, until the Liabilities have been paid in full, Key Principal will
not seek, accept or retain for Key Principal's own account, any payment (whether
for principal, interest, or otherwise) from Borrower for or on account of such
subordinated debt. Any payments to Key Principal on account of such subordinated
debt shall be collected and received by Key Principal in trust for Lender and
shall be paid over to Lender on account of the Liabilities without impairing or
releasing the obligations or Key Principal hereunder. Key Principal hereby
unconditionally and irrevocably agrees that (a) Key Principal will not at any
time while the Liabilities remain unpaid, assert against Borrower (or Borrower's
estate in the event that Borrower becomes the subject of any case or proceeding
under any federal or state bankruptcy or insolvency laws) any right or claim to
indemnification, reimbursement contribution or payment for or with respect to
any and all amounts Key Principal may pay or be obligated to pay Lender,
including, without limitation, the Liabilities, and any and all obligations
which Key Principal may perform, satisfy or discharge, under or with respect to
the Guaranty, and (b) Key Principal subordinates to the debt now owed by
Borrower to Lender all such rights and claims to indemnification, reimbursement
contribution or payment which Key Principal may have now or at any time against
Borrower (or Borrower's estate in the event that Borrower becomes the subject of
any case or proceeding under any federal or state bankruptcy or insolvency
laws).
13. CLAIMS IN BANKRUPTCY. Key Principal will file all claims against
Borrower in any bankruptcy or other proceeding in which the filing of claims is
required by law upon any indebtedness of Borrower to Key Principal and will
assign to Lender all right of Key Principal thereunder. If Key Principal does
not file any such claim, Lender, as attorney-in-fact for Key Principal is hereby
irrevocably appointed and is hereby authorized to do so in the name of the
undersigned or, in Lender's discretion, to assign the claim and to cause proof
of claim to be filed in the name of Lender's nominee. In all such cases, whether
in administration, bankruptcy or otherwise, the person or persons authorized to
pay such claim shall pay to Lender the full amount thereof and, to the full
extent necessary for that purpose, Key Principal hereby assigns to Lender all of
Key Principal's rights to any such payments or distributions to which Key
Principal would otherwise be entitled.
14. KEY PRINCIPAL'S REPRESENTATIONS AND WARRANTIES. Key Principal
represents, warrants and covenants to and with Lender that:
14.1 There is no action or proceeding pending or to the
knowledge of Key Principal, threatened against Key Principal before any court or
administrative agency which might result in any material adverse change in the
business or financial condition of Key Principal or in the property of Key
Principal;
14.2 Key Principal has filed all Federal and State
income tax returns which Key Principal has been required to file, and has paid
all taxes as shown on said returns and on all assessments received by Key
Principal to the extent that such taxes have become due;
14.3 Neither the execution nor delivery of this Guaranty
nor fulfillment of nor compliance with the terms and provisions hereof will
conflict with, or result in a breach of the terms, conditions or provisions of,
or constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of Key Principal under any agreement or
instrument to which Key Principal is now a party or by which Key Principal may
be bound;
14.4 This Guaranty is a valid and legally binding
agreement of Key Principal and is enforceable against Key Principal in
accordance with its terms;
14.5 Key Principal has either (i) examined the Loan
Documents or (ii) has had an opportunity to examine the Loan Documents and has
waived the right to examine them; and
14.6 Key Principal has the full power, authority, and legal
right to execute and deliver this Guaranty.
15. NOTICE OF LITIGATION. Key Principal shall promptly give Lender
notice of all litigation or proceedings before any court or Governmental
Authority affecting Key Principal or its property, except litigation or
proceedings which, if adversely determined, would not have a material adverse
effect on the financial condition or operations of Key Principal or its ability
to perform any of its obligations hereunder.
16. ACCESS TO RECORDS. Key Principal shall give Lender and its
representatives access to, and permit Lender and such representatives to
examine, copy or make extracts from, any and all books, records and documents in
the possession of Key Principal relating to the performance of Key Principal's
obligations hereunder and under any of the Loan Documents, all at such times and
as often as Lender may reasonably request.
17. SUCCESSORS AND ASSIGNS. Lender may assign this Guaranty and all or
any of its rights, privileges, interests and remedies hereunder to any other
person or entity whatsoever without notice to or consent by Key Principal, and
in such event the assignee shall be entitled to the benefits of this Guaranty
and to exercise all rights, interests and remedies as fully as Lender. This
Guaranty shall inure to the benefit of and may be relied upon and enforced by
any successor or assignee of Lender and by any transferee or subsequent holder
of this Guaranty.
18. TERMINATION. This Guaranty shall terminate only when all of the
Liabilities have been paid in full, including all interest thereon, late charges
and other charges and fees included within the Liabilities. When the conditions
described above have been fully met, Lender will, upon request, furnish to Key
Principal a written cancellation of this Guaranty.
19. NOTICES. Any notice required or permitted to be given hereunder
must be in writing and given (a) by depositing same in the United States mail,
addressed to the party to be notified, postage prepaid and registered or
certified with return receipt requested; (b) by delivering the same in person to
such party; (c) by transmitting a facsimile copy to the correct facsimile phone
number of the intended recipient; or (d) by depositing the same into the custody
of a nationally recognized overnight delivery service addressed to the party to
be notified. In the event of mailing, notices shall be deemed effective three
(3) days after posting; in the event of overnight delivery, notices shall be
deemed effective on the next business day following deposit with the delivery
service; in the event of personal service or facsimile transmissions, notices
shall be deemed effective when delivered. For purposes of notice, the addresses
of the parties shall be as follows:
If to Lender, to: KeyBank National Association
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxxx, Esq.
Xxxxxxxxxx Xxxxxxx & Xxxxx
000 X. 00xx Xxxxxx, Xxx. 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
If to Key Principal, to: Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
With a copy to: Glimcher Development Corporation
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxxx Xxxxxxx, General Counsel
Xxx X. Xxxxx, Esq.
Squire, Sanders, & Xxxxxxx
0000 Xxxxxxxxxx Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Facsimile: 000-000-0000
From time to time either party may designate another or additional addresses for
all purposes of this Guaranty by giving the other party no less than ten (10)
days advance notice of such change of address in accordance with the notice
provisions hereof.
20. WAIVER OF JURY TRIAL. KEY PRINCIPAL AND LENDER EACH HEREBY AGREE
NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE
ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE SECURITY INSTRUMENT
OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING
IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY KEY PRINCIPAL AND LENDER, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH RIGHT TO TRIAL
BY JURY WOULD OTHERWISE ACCRUE. KEY PRINCIPAL AND LENDER EACH ARE HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY EACH OTHER.
21. MISCELLANEOUS. This Guaranty shall be a continuing guaranty. This
Guaranty shall bind the heirs, successors and assigns of Key Principal (except
that Key Principal may not assign his, her, or its liabilities under this
Guaranty without the prior written consent of Lender, which consent Lender may
in its sole discretion withhold), and shall inure to the benefit of Lender, its
successors, transferees and assigns. Each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law.
The captions at the beginning of Sections are used for convenience only and are
not to be used in attempting to construe any part of this Guaranty. Unless the
context indicates otherwise, words importing the singular number shall include
the plural and vice versa, words importing persons shall include firms,
associations, partnerships and corporations, including public bodies and
entities, as well as natural persons, and words of masculine gender shall be
deemed and construed to include
correlative words of the feminine and neuter genders and vice versa. If any
provision of this Guaranty is held invalid or unenforceable by final and
unappealable judgment of the court having jurisdiction over the matter and
persons, such provisions shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision,
its application in other circumstances, or the remaining provisions of this
Guaranty.
22. APPLICABLE LAW; JURISDICTION AND VENUE. This Guaranty shall be
governed by and construed in accordance with the laws of jurisdiction in which
the real property collateral for the Loan is located without regard to the
conflicts of law provisions thereof ("GOVERNING STATE"). Key Principal hereby
consents to personal jurisdiction in the Governing State. Venue of any action
brought to enforce this Guaranty or any other Loan Document or any action
relating to the Loan or the relationships created by or under the Loan Documents
("Action") shall, at the election of Lender, be in (and if any Action is
originally brought in another venue, the Action shall at the election of Lender
be transferred to) a state or federal court of appropriate jurisdiction located
in the Governing State. Key Principal hereby consents and submits to the
personal jurisdiction of the Governing State and of federal courts located in
the Governing State in connection with any Action and hereby waives any and all
personal rights under the laws of any other state to object to jurisdiction
within such State for purposes of any Action. Key Principal hereby waives and
agrees not to assert, as a defense to any Action or a motion to transfer venue
of any Action, (i) any claim that it is not subject to such jurisdiction, (ii)
any claim that any Action may not be brought against it or is not maintainable
in those courts or that this Guaranty may not be enforced in or by those courts,
or that it is exempt or immune from execution, (iii) that the Action is brought
in an inconvenient forum, or (iv) that the venue for the Action is in any way
improper.
23. LOCAL LAW PROVISIONS. In the event of any inconsistencies between
the terms and conditions of this Section and any other terms and conditions of
this Guaranty (other than the terms and conditions of Section 24), the terms and
conditions of this Section shall be binding.
NONE.
24. ADDITIONAL PROVISIONS. In the event of any inconsistencies between
the terms and conditions of this Section and any other terms and conditions of
this Guaranty, the terms and conditions of this Section shall be binding.
24.1 GUARANTY OF LIABILITIES. Section 2 is modified in the
following manner:
(a) The word "reasonable" is inserted in the
fifteenth line of Section 2.1(a) between
"including" and "attorney's".
(b) The word "all" is inserted in the eighteenth
line of Section 2.1(a) between "extent" and
"the".
(c) The following is inserted in the
parenthetical clause contained in the
nineteenth line of Section 2.1(a) between
"foregoing" and "are": ", together with the
Additional Carve-Out (as defined below),"
(d) The last eight (8) lines of Section 2.1(b)
commencing with the words "PROVIDED HOWEVER"
are deleted, and the following substituted
therefor: "PROVIDED HOWEVER, notwithstanding
anything herein to the contrary, Lender
shall not demand payment or commence any
action to enforce Key Principal's liability
under this 2.1(b) unless and until a
petition for bankruptcy, reorganization or
arrangement pursuant to federal bankruptcy
law, or any similar federal or state law,
shall be filed by or consented to by
Borrower, at which time Lender may
immediately commence enforcement of Key
Principal's liability hereunder."
(e) ADDITIONAL CARVE-OUT. Key Principal shall be
liable for any loss, damage, cost, expense,
liability, claim or other obligation
incurred by Lender (including attorneys'
fees and costs reasonably incurred) arising
out of or in connection with the obligations
of landlord set forth in Article 2 of that
certain Lease with Xxxxxx'x Trading Company,
Inc. dated October 3, 2003 (the "ADDITIONAL
CARVE-OUT").
24.2 WAIVERS. Section 4.3 is modified by inserting the
following in the third line thereof between
"counterclaims" and "to": "(except compulsory
counterclaims)".
24.3 TERMINATION. Notwithstanding anything herein to the
contrary, upon the conveyance of all of Borrower's
interest in the Property to a New Borrower (as
defined in the Security Instrument) in connection
with a Transfer (as defined in the Security
Instrument) approved by Lender in accordance with the
terms of the Security Instrument, Key Principal shall
be released under this Guaranty as to acts or events
occurring or obligations arising after the date of
the Transfer so long as: (i) the Transfer occurs
after any Securitization (as defined in the Security
Instrument) that includes the Loan; (ii) Borrower has
in no way, either directly or indirectly, caused the
Nonrecourse Carve-Out Liabilities; (iii) New Borrower
has executed an assumption agreement acceptable to
Lender assuming the Loan and all obligations set
forth in the Loan Documents; and (iv) a party
acceptable to Lender has executed a new Key
Principal's Guaranty Agreement in form and substance
substantially similar to this Guaranty. The foregoing
release shall not apply to any acts or omissions that
occur prior to the date of the Transfer, whether or
not the effects or damages of such actions are
apparent or ascertainable as of the date of the
Transfer.
IN WITNESS WHEREOF, the Key Principal has executed or caused this
Guaranty to be executed effective as of the day and year first above written.
KEY PRINCIPAL: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation, its sole general
partner
By: _______________________________
Name: _____________________________
Title: ____________________________
STATE OF __________ )
) ss.
COUNTY OF ___________)
On this ___ day of October in the year 2003, before me,______________,
a Notary Public in and for said state, personally appeared _________________,
__________________ of GLIMCHER PROPERTIES CORPORATION, sole general partner of
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, known
to me to be the person who executed the within instrument on behalf of said
partnership and acknowledged to me that s/he executed the same for the purposes
therein stated.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year last above written.
_____________________________________________________
Notary Public in and for Said County and State
_____________________________________________________
(Type, print or stamp the Notary's name below
his or her signature)
My Commission Expires:
______________________
