Exhibit 10.40
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GUARANTY OF RECOURSE OBLIGATIONS
made by
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
as replacement guarantor,
in favor of
LASALLE BANK NATIONAL ASSOCIATION, as Trustee
for the Registered Holders of Greenwich Capital Funding
Corp. Commercial Mortgage Trust 2003-C1, Commercial
Mortgage Pass-Through Certificates, Series 2003-C1
Dated as of December 29, 2005
GUARANTY OF RECOURSE OBLIGATIONS
This GUARANTY OF RECOURSE OBLIGATIONS (this "Guaranty"), dated as of
December 29, 2005, made by GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership, having an address at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, XX
00000 ("Replacement Guarantor"), in favor of LASALLE BANK NATIONAL ASSOCIATION,
as Trustee for the Registered Holders of Greenwich Capital Funding Corp.
Commercial Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through
Certificates, Series 2003-C1, whose mailing address is c/o Wachovia Securities,
Commercial Real Estate Services, 0000 Xxxxxxxx Xxxxx-XXX0, Xxxxxxxxx, XX
00000-0000 (28262-1075 for overnight deliveries), Attn: Portfolio Manager
(together with its successors and assigns, hereinafter referred to as "Lender").
R E C I T A L S:
A. Pursuant to that certain Loan Agreement dated as of dated May 9, 2003
(as amended, modified, supplemented or replaced from time to time, the "Loan
Agreement") between PASSCO PHM, LLC and PASSCO COLIMA, LLC (the "Passco Original
Borrowers") and Greenwich Capital Financial Products, Inc. (the "Original
Lender"), Original Lender made a loan (the "Loan") to the Passco Original
Borrowers in the principal amount of $92,000,000, subject to the terms and
conditions of the Loan Agreement;
B. As a condition to Original Lender's making the Loan, Original Lender
required that Passco Real Estate Enterprises, Inc., and Xxxxxxx X. Xxxxx (the
"Passco Original Guarantors") execute and deliver a Guaranty of Recourse
Obligations of even date with the Loan Agreement (the "Original Passco
Guaranty");
C. As contemplated in Section 5.26.2 of the Loan Agreement, the Passco
Original Borrowers transferred tenant-in-common interests to various "Borrowers"
each of which assumed the Loan on a joint and several basis with the Passco
Original Borrowers (collectively with the Passco Original Borrowers, the
"Original Borrowers")
D. As further contemplated in Section 5.26.2 of the Loan Agreement,
Original Lender required that each TIC Owner (as defined in the Loan Agreement)
execute a guaranty of recourse obligations (collectively with the Original
Passco Guaranty, the "Original Guaranty Agreements") as contemplated in section
5.26.2 of the Loan Agreement (collectively with the Passco Original Guarantors,
the "Original Guarantors");
E. Original Lender assigned, sold and transferred its interest in the Loan
and all Loan Documents (as defined in the Loan Agreement) to Lender and Lender
is the current holder of all of Original Lender's interest in the Loan and Loan
Documents;
F. As more particularly described in that certain Loan Assumption Agreement
of even date herewith (the "Assumption Agreement"), Original Borrowers have
transferred the Property (as defined in the Loan Agreement) to XXXXXX HILLS
MALL, LLC, a Delaware limited liability company ("Assuming Borrower") and
Assuming Borrower has agreed to assume the Loan and the obligations of Original
Borrowers under the Loan Documents (the "Assumption");
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G. As a condition to granting its consent to the Assumption, Lender has
required that Replacement Guarantor execute this Guaranty; and
H. Replacement Guarantor acknowledges that it will materially benefit from
Lender's agreeing to consent to the Assumption.
NOW, THEREFORE, in consideration of the premises set forth herein and as an
inducement for and in consideration of the agreement of Lender to make the Loan
pursuant to the Loan Agreement, Replacement Guarantor hereby agrees, covenants,
represents and warrants to Lender as follows:
1. Definitions.
(a) All capitalized terms used and not defined herein shall have the
respective meanings given such terms in the Loan Agreement, as amended by the
Assumption Agreement.
(b) The term "Guaranteed Obligations" means (i) Assuming Borrower's
Recourse Liabilities (the "Recourse Liability Guaranteed Obligations") and (ii)
from and after the date that any Springing Recourse Event occurs, payment of the
Guaranteed Amount (and whether accrued prior to, on or after such date) (the
"Springing Recourse Guaranteed Obligations").
(c) The term "Guaranteed Amount" means the amount for which Assuming
Borrower is liable pursuant to Section 10.1(b) of the Loan Agreement.
2. Guaranty.
(a) Replacement Guarantor hereby irrevocably, absolutely and
unconditionally guarantees to Lender the full, prompt and complete payment when
due of the Guaranteed Obligations.
(b) All sums payable to Lender under this Guaranty shall be payable on
demand and without reduction for any offset, claim, counterclaim or defense.
(c) Replacement Guarantor hereby agrees to indemnify, defend and save
harmless Lender from and against any and all costs, losses, liabilities, claims,
causes of action, expenses and damages, including reasonable attorneys' fees and
disbursements, which Lender may suffer or which otherwise may arise by reason of
Assuming Borrower's failure to pay any of the Guaranteed Obligations when due,
irrespective of whether such costs, losses, liabilities, claims, causes of
action, expenses or damages are incurred by Lender prior or subsequent to (i)
Lender's declaring the Principal, interest and other sums evidenced or secured
by the Loan Documents to be due and payable, (ii) the commencement or completion
of a judicial or non judicial foreclosure of the Mortgage or (iii) the
conveyance of all or any portion of the Property by deed-in-lieu of foreclosure.
(d) Replacement Guarantor agrees that no portion of any sums applied
(other than sums received from Replacement Guarantor in full or partial
satisfaction of its obligations hereunder), from time to time, in reduction of
the Debt shall be deemed to have been applied in reduction of the Guaranteed
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Obligations until such time as the Debt has been paid in full, or Replacement
Guarantor shall have made the full payment required hereunder, it being the
intention hereof that the Guaranteed Obligations shall be the last portion of
the Debt to be deemed satisfied.
3. Representations and Warranties. Replacement Guarantor hereby represents
and warrants (as to itself) to Lender as follows (which representations and
warranties shall be given as of the date hereof and shall survive the execution
and delivery of this Guaranty):
(a) Organization, Authority and Execution. Replacement Guarantor is a
limited partnership duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all necessary power and authority to
own its properties and to conduct its business as presently conducted or
proposed to be conducted and to enter into and perform this Guaranty and all
other agreements and instruments to be executed by it in connection herewith.
This Guaranty has been duly executed and delivered by Replacement Guarantor.
(b) Enforceability. This Guaranty constitutes a legal, valid and
binding obligation of Replacement Guarantor, enforceable against Replacement
Guarantor in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally.
(c) No Violation. The execution, delivery and performance by
Replacement Guarantor of its obligations under this Guaranty has been duly
authorized by all necessary action, and do not and will not violate any law,
regulation, order, writ, injunction or decree of any court or governmental body,
agency or other instrumentality applicable to Replacement Guarantor, or result
in a breach of any of the terms, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of any mortgage, lien,
charge or encumbrance of any nature whatsoever upon any of the assets of
Replacement Guarantor pursuant to the terms of Replacement Guarantor's
organizational documents, or any mortgage, indenture, agreement or instrument to
which Replacement Guarantor is a party or by which it or any of its properties
is bound. Replacement Guarantor is not in default under any other guaranty which
it has provided to any of the Lender Parties (as defined in the Assumption
Agreement).
(d) No Litigation. There are no actions, suits or proceedings at law
or at equity, pending or, to Replacement Guarantor's best knowledge, threatened
against or affecting Replacement Guarantor or which involve or might involve the
validity or enforceability of this Guaranty or which might materially adversely
affect the financial condition of Replacement Guarantor or the ability of
Replacement Guarantor to perform any of its obligations under this Guaranty.
Replacement Guarantor is not in default beyond any applicable grace or cure
period with respect to any order, writ, injunction, decree or demand of any
Governmental Authority which might materially adversely affect the financial
condition of Replacement Guarantor or the ability of Replacement Guarantor to
perform any of its obligations under this Guaranty.
(e) Consents. All consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, all Governmental Authorities
(collectively, the "Consents") that are required in connection with the valid
execution, delivery and performance by Replacement Guarantor of this Guaranty
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have been obtained and Replacement Guarantor agrees that all Consents required
in connection with the carrying out or performance of any of Replacement
Guarantor's obligations under this Guaranty will be obtained when required.
(f) Financial Statements and Other Information. All financial
statements of Replacement Guarantor heretofore delivered to Lender are true and
correct in all material respects and fairly present the financial condition of
Replacement Guarantor as of the respective dates thereof, and no materially
adverse change has occurred in the financial conditions reflected therein since
the respective dates thereof. None of the aforesaid financial statements or any
certificate or statement furnished to Lender by or on behalf of Replacement
Guarantor in connection with the transactions contemplated hereby, and none of
the representations and warranties in this Guaranty contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained therein or herein not misleading.
Replacement Guarantor is not insolvent within the meaning of the United States
Bankruptcy Code or any other applicable law, code or regulation and the
execution, delivery and performance of this Guaranty will not render Replacement
Guarantor insolvent.
(g) Consideration. Replacement Guarantor is the owner, directly or
indirectly, of legal and beneficial equity interests in Assuming Borrower, and
as such will materially benefit from Lender's consent to the Assumption.
4. Financial Statements. Replacement Indemnitor shall deliver to Lender,
(a) within 120 days after the end of each fiscal year of Replacement Indemnitor,
a complete copy of Replacement Indemnitor's annual financial statements, (b) if
requested by Lender, within 60 days after the end of each fiscal quarter of
Replacement Indemnitor, financial statements (including a balance sheet as of
the end of such fiscal quarter and a statement of income and expense for such
fiscal quarter) certified by Replacement Indemnitor and in form, content, level
of detail and scope reasonably satisfactory to Lender, and (c) 20 days after
request by Lender, such other financial information with respect to Replacement
Indemnitor as Lender may reasonably request.
5. Unconditional Character of Obligations of Replacement Guarantor.
(a) The obligations of Replacement Guarantor hereunder shall be
irrevocable, absolute and unconditional, irrespective of the validity,
regularity or enforceability, in whole or in part, of the other Loan Documents
or any provision thereof, or the absence of any action to enforce the same, any
waiver or consent with respect to any provision thereof, the recovery of any
judgment against Assuming Borrower, Replacement Guarantor or any other Person or
any action to enforce the same, any failure or delay in the enforcement of the
obligations of Assuming Borrower under the other Loan Documents or Replacement
Guarantor under this Guaranty, or any setoff, counterclaim, and irrespective of
any other circumstances which might otherwise limit recourse against Replacement
Guarantor by Lender or constitute a legal or equitable discharge or defense of a
guarantor or surety. Lender may enforce the obligations of Replacement Guarantor
under this Guaranty by a proceeding at law, in equity or otherwise, independent
of any loan foreclosure or similar proceeding or any deficiency action against
Assuming Borrower or any other Person at any time, either before or after an
action against the Property or any part thereof, Assuming Borrower or any other
Person. This Guaranty is a guaranty of payment and performance and not merely a
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guaranty of collection. Replacement Guarantor waives diligence, notice of
acceptance of this Guaranty, filing of claims with any court, any proceeding to
enforce any provision of any other Loan Document, against Replacement Guarantor,
Assuming Borrower or any other Person, any right to require a proceeding first
against Assuming Borrower or any other Person, or to exhaust any security
(including, without limitation, the Property) for the performance of the
Guaranteed Obligations or any other obligations of Assuming Borrower or any
other Person, or any protest, presentment, notice of default or other notice or
demand whatsoever (except to the extent expressly provided to the contrary in
this Guaranty).
(b) The obligations of Replacement Guarantor under this Guaranty, and
the rights of Lender to enforce the same by proceedings, whether by action at
law, suit in equity or otherwise, shall not be in any way affected by any of the
following:
(i) any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, receivership, conservatorship,
winding up or other similar proceeding involving or affecting Assuming
Borrower, the Property or any part thereof, Replacement Guarantor or
any other Person;
(ii) any failure by Lender or any other Person, whether or not
without fault on its part, to perform or comply with any of the terms
of the Loan Agreement, or any other Loan Documents, or any document or
instrument relating thereto;
(iii) the sale, transfer or conveyance of the Property or any
interest therein to any Person, whether now or hereafter having or
acquiring an interest in the Property or any interest therein and
whether or not pursuant to any foreclosure, trustee sale or similar
proceeding against Assuming Borrower or the Property or any interest
therein;
(iv) the conveyance to Lender, any Affiliate of Lender or
Lender's nominee of the Property or any interest therein by a
deed-in-lieu of foreclosure;
(v) the release of Assuming Borrower or any other Person from the
performance or observance of any of the agreements, covenants, terms
or conditions contained in any of the Loan Documents by operation of
law or otherwise; or
(vi) the release in whole or in part of any collateral for any or
all Guaranteed Obligations or for the Loan or any portion thereof.
(c) Except as otherwise specifically provided in this Guaranty,
Replacement Guarantor hereby expressly and irrevocably waives all defenses in an
action brought by Lender to enforce this Guaranty based on claims of waiver,
release, surrender, alteration or compromise and all setoffs, reductions, or
impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Assuming Borrower and Affiliates of Assuming
Borrower in the same manner and as freely as if this Guaranty did not exist and
shall be entitled, among other things, to grant Assuming Borrower or any other
Person such extension or extensions of time to perform any act or acts as may be
deemed advisable by Lender, at any time and from time to time, without
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terminating, affecting or impairing the validity of this Guaranty or the
obligations of Replacement Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension,
renewal, release or other change of, or waiver, consent, delay, omission,
failure to act or other action with respect to, any liability or obligation
under or with respect to, or of any of the terms, covenants or conditions of,
the Loan Documents shall in any way alter, impair or affect any of the
obligations of Replacement Guarantor hereunder, and Replacement Guarantor agrees
that if any Loan Documents are modified with Lender's consent, the Guaranteed
Obligations shall automatically be deemed modified to include such
modifications.
(f) Lender may proceed to protect and enforce any or all of its rights
under this Guaranty by suit in equity or action at law, whether for the specific
performance of any covenants or agreements contained in this Guaranty or
otherwise, or to take any action authorized or permitted under applicable law,
and shall be entitled to require and enforce the performance of all acts and
things required to be performed hereunder by Replacement Guarantor. Each and
every remedy of Lender shall, to the extent permitted by law, be cumulative and
shall be in addition to any other remedy given hereunder or now or hereafter
existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any
rights hereunder unless the same shall be in writing and signed by Lender, and
any such waiver shall be a waiver only with respect to the specific matter
involved and shall in no way impair the rights of Lender or the obligations of
Replacement Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Replacement Guarantor may be joined in
any action or proceeding commenced by Lender against Assuming Borrower in
connection with or based upon any other Loan Documents and recovery may be had
against Replacement Guarantor in such action or proceeding or in any independent
action or proceeding against Replacement Guarantor to the extent of Replacement
Guarantor's liability hereunder, without any requirement that Lender first
assert, prosecute or exhaust any remedy or claim against Assuming Borrower or
any other Person, or any security for the obligations of Assuming Borrower or
any other Person.
(i) Replacement Guarantor agrees that this Guaranty shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
payment is made by Assuming Borrower or Replacement Guarantor to Lender and such
payment is rescinded or must otherwise be returned by Lender (as determined by
Lender in its sole and absolute discretion) upon insolvency, bankruptcy,
liquidation, reorganization, readjustment, composition, dissolution,
receivership, conservatorship, winding up or other similar proceeding involving
or affecting Assuming Borrower or Replacement Guarantor, all as though such
payment had not been made.
(j) In the event that Replacement Guarantor shall advance or become
obligated to pay any sums under this Guaranty or in connection with the
Guaranteed Obligations or in the event that for any reason whatsoever Assuming
Borrower or any subsequent owner of the Property or any part thereof is now, or
shall hereafter become, indebted to Replacement Guarantor, Replacement Guarantor
agrees that (i) the amount of such sums and of such indebtedness and all
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interest thereon shall at all times be subordinate as to lien, the time of
payment and in all other respects to all sums, including principal and interest
and other amounts, at any time owed to Lender under the Loan Documents, and (ii)
Replacement Guarantor shall not be entitled to enforce or receive payment
thereof until all principal, Interest and other sums due pursuant to the Loan
Documents have been paid in full. Nothing herein contained is intended or shall
be construed to give Replacement Guarantor any right of subrogation in or under
the Loan Documents or any right to participate in any way therein, or in the
right, title or interest of Lender in or to any collateral for the Loan,
notwithstanding any payments made by Replacement Guarantor under this Guaranty,
until the actual and irrevocable receipt by Lender of payment in full of all
principal, Interest and other sums due with respect to the Loan or otherwise
payable under the Loan Documents. If any amount shall be paid to Replacement
Guarantor on account of such subrogation rights at any time when any such sums
due and owing to Lender shall not have been fully paid, such amount shall be
paid by Replacement Guarantor to Lender for credit and application against such
sums due and owing to Lender.
(k) Replacement Guarantor's obligations hereunder shall survive a
foreclosure, deed-in-lieu of foreclosure or similar proceeding involving the
Property and the exercise by Lender of any of all of its remedies pursuant to
the Loan Documents.
6. INTENTIONALLY DELETED.
7. Entire Agreement/Amendments. This instrument represents the entire
agreement between the parties with respect to the subject matter hereof. The
terms of this Guaranty shall not be waived, altered, modified, amended,
supplemented or terminated in any manner whatsoever except by written instrument
signed by Lender and Replacement Guarantor.
8. Successors and Assigns. This Guaranty shall be binding upon Replacement
Guarantor, and Replacement Guarantor's estate, heirs, personal representatives,
successors and assigns, may not be assigned or delegated by Replacement
Guarantor and shall inure to the benefit of Lender and its successors and
assigns.
9. Applicable Law and Consent to Jurisdiction. This Guaranty shall be
governed by, and construed in accordance with, the substantive laws of the State
of California. Replacement Guarantor irrevocably (a) agrees that any suit,
action or other legal proceeding arising out of or relating to this Guaranty may
be brought in a court of record in the City and County of Los Angeles or in the
Courts of the United States of America located in the Southern District of
California, (b) consents to the jurisdiction of each such court in any such
suit, action or proceeding and (c) waives any objection which it may have to the
laying of venue of any such suit, action or proceeding in any of such courts and
any claim that any such suit, action or proceeding has been brought in an
inconvenient forum. Replacement Guarantor irrevocably consents to the service of
any and all process in any such suit, action or proceeding by service of copies
of such process to Replacement Guarantor at its address provided in Section 14
hereof. Nothing in this Section 9, however, shall affect the right of Lender to
serve legal process in any other manner permitted by law or affect the right of
Lender to bring any suit, action or proceeding against Replacement Guarantor or
its property in the courts of any other jurisdictions.
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10. Section Headings. The headings of the sections and paragraphs of this
Guaranty have been inserted for convenience of reference only and shall in no
way define, modify, limit or amplify any of the terms or provisions hereof.
11. Severability. Any provision of this Guaranty which may be determined by
any competent authority to be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To
the extent permitted by applicable law, Replacement Guarantor hereby waives any
provision of law which renders any provision hereof prohibited or unenforceable
in any respect.
12. WAIVER OF TRIAL BY JURY. REPLACEMENT GUARANTOR HEREBY WAIVES THE RIGHT
OF TRIAL BY JURY IN ANY LITIGATION, ACTION OR PROCEEDING ARISING HEREUNDER OR IN
CONNECTION THEREWITH.
13. Other Guaranties. This Guaranty is in addition to any and all other
guaranties relating to the Debt or any portion thereof. To the extent
Replacement Guarantor may become liable under this Guaranty and one or more
other guarantors may become liable under the terms of any other guaranty made in
favor of Lender with respect to the Debt, Lender shall be entitled to exercise
any and all of its remedies against Replacement Guarantor under this Guaranty as
well any and all of its remedies against any one or more guarantors under such
other guaranties jointly and severally.
14. Notices. All notices, consents, approvals and requests required or
permitted hereunder (a "Notice") shall be given in writing and shall be
effective for all purposes if either hand delivered with receipt acknowledged,
or by a nationally recognized overnight delivery service (such as Federal
Express), or by certified or registered United States mail, return receipt
requested, postage prepaid, or by facsimile and confirmed by facsimile answer
back, in each case addressed as follows (or to such other address or Person as a
party shall designate from time to time by notice to the other party): If to
Lender: LaSalle Bank National Association, as Trustee for the Registered Holders
of Greenwich Capital Funding Corp. Commercial Mortgage Trust 2003-C1, Commercial
Mortgage Pass-Through Certificates, Series 2003-C1, c/o Wachovia Securities,
Commercial Real Estate Services, 0000 Xxxxxxxx Xxxxx-XXX0, Xxxxxxxxx, XX
00000-0000 (28262-1075 for overnight deliveries), Attn: Portfolio Manager, with
a copy to: Xxxxxx & Bird LLP, 000 X. Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX
00000-0000, Attn: Xxxxx X. X. Xxxxxx, Xx., Esq.; if to Replacement Guarantor:
Glimcher Properties Limited Partnership, 000 Xxxx Xxx, Xxxxxx, Xxxxxxxx, XX
00000, Attn: General Counsel, with a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.,
000 Xxxxx Xxxxxxxx, 00xx Xxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, Attn.
Xxxxxxxx X. Xxxxxxxxx. A notice shall be deemed to have been given: in the case
of hand delivery, at the time of delivery; in the case of registered or
certified mail, when delivered or the first attempted delivery on a Business
Day; or in the case of overnight delivery, upon the first attempted delivery on
a Business Day.
15. Replacement Guarantor's Receipt of Loan Documents. Replacement
Guarantor by its execution hereof acknowledges receipt of true copies of all of
the Loan Documents, the terms and conditions of which are hereby incorporated
herein by reference.
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16. Interest; Expenses.
(a) If Replacement Guarantor fails to pay all or any sums due
hereunder upon demand by Lender, the amount of such sums payable by Replacement
Guarantor to Lender shall bear interest from the date of demand until paid at
the Default Rate in effect from time to time.
(b) Replacement Guarantor hereby agrees to pay all costs, charges and
expenses, including reasonable attorneys' fees and disbursements, that may be
incurred by Lender in enforcing the covenants, agreements, obligations and
liabilities of Replacement Guarantor under this Guaranty.
17. Special State Provisions.
(a) Environmental Provisions. To the extent California law applies,
nothing herein shall be deemed to limit the right of Lender to recover in
accordance with California Code of Civil Procedure Section 736 (as such Section
may be amended from time to time), any costs, expenses, liabilities or damages,
including reasonable attorneys' fees and costs, incurred by Lender and arising
from any covenant, obligation, liability, representation or warranty contained
in any indemnity agreement given to Lender, or any order, consent decree or
settlement relating to the cleanup of Hazardous Substances or any other
"environmental provision" (as defined in such Section 736) relating to the
Property or any portion thereof or the right of Lender to waive, in accordance
with the California Code of Civil Procedure Section 726.5 (as such Section may
be amended from time to time), the security of the Deed of Trust as to any
parcel of the Trust Property that is "environmentally impaired" or is an
"affected parcel" (as such terms are defined in such Section 726.5), and as to
any personal property attached to such parcel, and thereafter to exercise
against Assuming Borrower, to the extent permitted by such Section 726.5, the
rights and remedies of any unsecured creditor, including reduction of Lender's
claim against Assuming Borrower to judgment, and any other rights and remedies
permitted by law.
(b) Additional Replacement Guarantor Waivers. To the extent California
law applies, Replacement Guarantor hereby waives all rights and defenses arising
out of an election of remedies by Lender even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for guaranteed
obligations, has destroyed Replacement Guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section 580d of the
California Code of Civil Procedure or otherwise. Specifically, and without in
any way limiting the foregoing, Replacement Guarantor hereby waives any rights
of subrogation, indemnification, contribution or reimbursement arising under
Sections 2846, 2847, 2848 and 2849 of the California Civil Code or any right of
recourse to or with respect to Assuming Borrower or the assets or property of
Assuming Borrower or to any collateral for the Loan. In connection with the
foregoing, Replacement Guarantor expressly waives any and all rights of
subrogation against Assuming Borrower, and Replacement Guarantor hereby waives
any rights to enforce any remedy which Lender may have against Assuming Borrower
and any right to participate in any collateral for the Loan. Replacement
Guarantor recognizes that, pursuant to Section 580d of the California Code of
Civil Procedure, Lender's realization through nonjudicial foreclosure upon any
real property constituting security for Assuming Borrower's obligations under
the Loan Documents could terminate any right of Lender to recover a deficiency
judgment against Assuming Borrower, thereby terminating subrogation rights which
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such parties otherwise might have against Assuming Borrower. In the absence of
an adequate waiver, such a termination of subrogation rights could create a
defense to enforcement of this Agreement against such parties. Replacement
Guarantor hereby unconditionally and irrevocably waives any such defense. In
addition to and without in any way limiting the foregoing, Replacement Guarantor
hereby subordinates any and all indebtedness of Assuming Borrower now or
hereafter owed to Replacement Guarantor to all the indebtedness of Assuming
Borrower to Lender and agrees with Lender that until such time as Lender may
have no further claim against Assuming Borrower, Replacement Guarantor shall not
demand or accept any payment of principal or interest from Assuming Borrower,
claim any offset or other reduction of Replacement Guarantor's obligations
hereunder because of any such indebtedness and shall not take any action to
obtain any of the collateral for the Loan. Further, Replacement Guarantor shall
not have any right of recourse against Lender by reason of any action Lender may
take or omit to take under the provisions of this Agreement or under the
provisions of any of the Loan Documents. If any amount shall nevertheless be
paid to Replacement Guarantor by Assuming Borrower or another guarantor prior to
payment in full of the Guaranteed Obligations, such amount shall be held in
trust for the benefit of Lender and shall forthwith be paid to Lender to be
credited and applied to the Guaranteed Obligations, whether matured or
unmatured. The provisions of this paragraph shall survive any satisfaction and
discharge of Assuming Borrower by virtue of any payment, court order or any
applicable law, except payment in full of the Guaranteed Obligations. Without
limiting the foregoing, Replacement Guarantor waives (i) all rights of
subrogation, reimbursement, indemnification, and contribution and any other
rights and defenses that are or may become available to Replacement Guarantor by
reason of California Civil Code Sections 2787 to 2855, inclusive; (ii) any
rights or defenses Replacement Guarantor may have with respect to its
obligations as a guarantor by reason of any election of remedies by Lender; and
(iii) all rights and defenses that Replacement Guarantor may have because
Assuming Borrower's debt is secured by real property. This means, among other
things, that Lender may collect from Replacement Guarantor without first
foreclosing on any real or personal property collateral pledged by Assuming
Borrower, and that if Lender forecloses on any real property collateral pledged
by Assuming Borrower (A) the amount of the debt may be reduced only by the price
for which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price, and (B) Lender may collect from
Replacement Guarantor even if Lender, by foreclosing on the real property
collateral, has destroyed any rights Replacement Guarantor may have to collect
from Assuming Borrower. This is an unconditional and irrevocable waiver of any
rights and defenses Replacement Guarantor may have because Borrower's debt
evidenced by the Note is secured by real property. These rights and defenses
include, but are not limited to, any rights or defenses based upon Section 580a,
5806, 580d or 726 of the California Code of Civil Procedure.
20. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
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-11-
IN WITNESS WHEREOF, Replacement Guarantor has executed this Guaranty as of
the date first above written.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: GLIMCHER PROPERTIES CORPORATION
a Delaware corporation
Its: Sole General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President
