EXHIBIT 10.118
GUARANTY
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This GUARANTY (this "Guaranty") is executed as of May 25, 2006 by GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership (whether one or
more collectively referred to as "Guarantor"), for the benefit of XXXXXX XXXXXXX
CREDIT CORPORATION, a Delaware corporation ("Lender").
W I T N E S S E T H:
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WHEREAS, pursuant to those certain Promissory Notes, dated of even date
herewith, executed by WTM Glimcher, LLC, a Delaware limited liability company
("Borrower") and payable to the order of Lender in the aggregate principal
amount of Sixty Million and No/100 Dollars ($60,000,000.00) (together with all
renewals, modifications, increases and extensions thereof, the "Note"), Borrower
has become indebted, and may from time to time be further indebted, to Lender
with respect to a loan (the "Loan") which is made pursuant to that certain Loan
Agreement, dated of even date herewith, between Borrower and Lender (the "Loan
Agreement");
WHEREAS, Lender is not willing to make the Loan, or otherwise extend
credit, to Borrower unless Guarantor unconditionally guarantees payment and
performance to Lender of the Guaranteed Obligations (as herein defined); and
WHEREAS, Guarantor is the owner of a direct or indirect interest in
Borrower, and Guarantor will directly benefit from Lender's making the Loan to
Borrower.
NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower and
to extend such additional credit as Lender may from time to time agree to extend
under the Loan Documents, and for other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the parties do
hereby agree as follows:
ARTICLE I
NATURE AND SCOPE OF GUARANTY
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1.1 Guaranty of Obligation. Guarantor hereby irrevocably and
unconditionally guarantees to Lender and its successors and assigns the payment
and performance of the Guaranteed Obligations as and when the same shall be due
and payable, whether by lapse of time, by acceleration of maturity or otherwise.
Guarantor hereby irrevocably and unconditionally covenants and agrees that it is
liable for the Guaranteed Obligations as a primary obligor.
1.2 Definition of Guaranteed Obligations. As used herein, the term
"Guaranteed Obligations" means 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 following:
(a) fraud or intentional misrepresentation by Borrower or Guarantor in
connection with the Loan;
(b) the willful misconduct by Borrower or Guarantor in connection with
the Loan;
(c) the breach of any representation, warranty, covenant or
indemnification provision in the Environmental Indemnity or in the Mortgage
concerning environmental laws, hazardous substances and asbestos and any
indemnification of Lender with respect thereto in either document;
(d) the misapplication or conversion by Borrower of (i) any insurance
proceeds paid by reason of any loss, damage or destruction to the Property,
(ii) any awards or other amounts received in connection with the
Condemnation of all or a portion of the Property and (iii) any Rents
following an Event of Default;
(e) any security deposits, advance deposits or other deposits
collected with respect to the Property which are not delivered to Lender
upon a foreclosure of the Property or action in lieu thereof, except to the
extent any such security deposits were applied in accordance with the terms
and conditions of any of the Leases;
(f) the breach by Borrower of Borrower's indemnification obligations
set forth in Section 9.2 of the Loan Agreement; or
(g) failure of Borrower to maintain its status as a single purpose
entity as required by, and in accordance with the terms and provisions of,
the Loan Agreement.
Notwithstanding anything to the contrary in any of the Loan Documents, (i)
Lender shall not be deemed to have waived any right which Lender may have under
Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy
Code to file a claim for the full amount of the Debt or to require that all
collateral shall continue to secure all of the Debt owing to Lender in
accordance with the Loan Documents and (ii) Guarantor shall be liable for the
full amount of the Debt in the event that (A) Borrower fails to obtain Lender's
prior written consent to any subordinate mortgage financing or other voluntary
lien encumbering the Property in connection with such subordinate mortgage
financing; (B) Borrower fails to obtain Lender's prior written consent to any
assignment, transfer, or conveyance of the Property or any interest therein as
required by the Loan Agreement or the Mortgage; (C) Borrower files a voluntary
petition under the Bankruptcy code or any other Federal or state bankruptcy or
insolvency law; (D) an Affiliate, officer, director, or representative which
controls, directly or indirectly, Borrower files, or joins in the filing of, an
involuntary petition against Borrower under the Bankruptcy Code or any other
Federal or state bankruptcy or insolvency law, or solicits or causes to be
solicited petitioning creditors for any involuntary petition against Borrower
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from any Person; (E) Borrower files an answer consenting to or joining in any
involuntary petition filed against it, by any other Person under the Bankruptcy
Code or any other Federal or state bankruptcy or insolvency law, or solicits or
causes to be solicited petitioning creditors for any involuntary petition from
any Person; (F) any Affiliate, officer, director, or representative which
controls Borrower consents to or joins in an application for the appointment of
a custodian, receiver, trustee, or examiner for Borrower or any portion of the
Property; or (G) Borrower makes an assignment for the benefit of creditors, or
admits, in writing or in any legal proceeding, its insolvency or inability to
pay its debts as they become due.
1.3 Nature of Guaranty. This Guaranty is an irrevocable, absolute,
continuing guaranty of payment and performance and not a guaranty of collection.
This Guaranty may not be revoked by Guarantor and shall continue to be effective
with respect to any Guaranteed Obligations arising or created after any
attempted revocation by Guarantor and after (if Guarantor is a natural person)
Guarantor's death (in which event this Guaranty shall be binding upon
Guarantor's estate and Guarantor's legal representatives and heirs). The fact
that at any time or from time to time the Guaranteed Obligations may be
increased or reduced shall not release or discharge the obligation of Guarantor
to Lender with respect to the Guaranteed Obligations. This Guaranty may be
enforced by Lender and any subsequent holder of the Note and shall not be
discharged by the assignment or negotiation of all or part of the Note.
1.4 Guaranteed Obligations Not Reduced by Offset. The Guaranteed
Obligations and the liabilities and obligations of Guarantor to Lender hereunder
shall not be reduced, discharged or released because or by reason of any
existing or future offset, claim or defense of Borrower or any other party
against Lender or against payment of the Guaranteed Obligations (except for the
defense of payment of the Guaranteed Obligations), whether such offset, claim or
defense arises in connection with the Guaranteed Obligations (or the
transactions creating the Guaranteed Obligations) or otherwise.
1.5 Payment By Guarantor. If all or any part of the Guaranteed Obligations
shall not be punctually paid when due, whether at demand, maturity, acceleration
or otherwise, Guarantor shall, immediately upon demand by Lender and without
presentment, protest, notice of protest, notice of non-payment, notice of
intention to accelerate the maturity, notice of acceleration of the maturity or
any other notice whatsoever, pay in lawful money of the United States of
America, the amount due on the Guaranteed Obligations to Lender at Lender's
address as set forth herein. Such demand(s) may be made at any time coincident
with or after the time for payment of all or part of the Guaranteed Obligations
and may be made from time to time with respect to the same or different items of
Guaranteed Obligations. Such demand shall be deemed made, given and received in
accordance with the notice provisions hereof.
1.6 No Duty To Pursue Others. It shall not be necessary for Lender (and
Guarantor hereby waives any rights which Guarantor may have to require Lender),
in order to enforce the obligations of Guarantor hereunder, first to (i)
institute suit or exhaust its remedies against Borrower or others liable on the
Loan or the Guaranteed Obligations or any other person, (ii) enforce Lender's
rights against any collateral which shall ever have been given to secure the
Loan, (iii) enforce Lender's rights against any other guarantors of the
Guaranteed Obligations, (iv) join Borrower or any others liable on the
Guaranteed Obligations in any action seeking to enforce this Guaranty, (v)
exhaust any remedies available to Lender against any collateral which shall ever
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have been given to secure the Loan, or (vi) resort to any other means of
obtaining payment of the Guaranteed Obligations. Lender shall not be required to
mitigate damages or take any other action to reduce, collect or enforce the
Guaranteed Obligations.
1.7 Waivers. Guarantor agrees to the provisions of the Loan Documents and
hereby waives notice of (i) any loans or advances made by Lender to Borrower,
(ii) acceptance of this Guaranty, (iii) any amendment or extension of the Note,
the Mortgage, the Loan Agreement or of any other Loan Documents, (iv) the
execution and delivery by Borrower and Lender of any other loan or credit
agreement or of Borrower's execution and delivery of any promissory notes or
other documents arising under the Loan Documents or in connection with the
Property, (v) the occurrence of any breach by Borrower or an Event of Default,
(vi) Lender's transfer or disposition of the Guaranteed Obligations, or any part
thereof, (vii) sale or foreclosure (or posting or advertising for sale or
foreclosure) of any collateral for the Guaranteed Obligations, (viii) protest,
proof of non-payment or default by Borrower, or (ix) any other action at any
time taken or omitted by Lender and, generally, all demands and notices of every
kind in connection with this Guaranty, the Loan Documents, any documents or
agreements evidencing, securing or relating to any of the Guaranteed Obligations
and the obligations hereby guaranteed.
1.8 Payment of Expenses. In the event that Guarantor should breach or fail
to timely perform any provisions of this Guaranty, Guarantor shall, immediately
upon demand by Lender, pay Lender all costs and expenses (including court costs
and attorneys' fees) incurred by Lender in the enforcement hereof or the
preservation of Lender's rights hereunder. The covenant contained in this
Section shall survive the payment and performance of the Guaranteed Obligations.
1.9 Effect of Bankruptcy. In the event that pursuant to any insolvency,
bankruptcy, reorganization, receivership or other debtor relief law or any
judgment, order or decision thereunder, Lender must rescind or restore any
payment or any part thereof received by Lender in satisfaction of the Guaranteed
Obligations, as set forth herein, any prior release or discharge from the terms
of this Guaranty given to Guarantor by Lender shall be without effect and this
Guaranty shall remain in full force and effect. It is the intention of Borrower
and Guarantor that Guarantor's obligations hereunder shall not be discharged
except by Guarantor's performance of such obligations and then only to the
extent of such performance.
1.10 Waiver of Subrogation, Reimbursement and Contribution. Notwithstanding
anything to the contrary contained in this Guaranty, Guarantor hereby
unconditionally and irrevocably waives, releases and abrogates any and all
rights it may now or hereafter have under any agreement, at law or in equity
(including, without limitation, any law subrogating the Guarantor to the rights
of Lender), to assert any claim against or seek contribution, indemnification or
any other form of reimbursement from Borrower or any other party liable for
payment of any or all of the Guaranteed Obligations for any payment made by
Guarantor under or in connection with this Guaranty or otherwise.
1.11 Borrower. The term "Borrower" as used herein shall include any new or
successor corporation, association, partnership (general or limited), limited
liability company joint venture, trust or other individual or organization
formed as a result of any merger, reorganization, sale, transfer, devise, gift
or bequest of Borrower or any interest in Borrower.
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ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR'S OBLIGATIONS
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Guarantor hereby consents and agrees to each of the following and agrees
that Guarantor's obligations under this Guaranty shall not be released,
diminished, impaired, reduced or adversely affected by any of the following and
waives any common law, equitable, statutory or other rights (including without
limitation rights to notice) which Guarantor might otherwise have as a result of
or in connection with any of the following:
2.1 Modifications. Any renewal, extension, increase, modification,
alteration or rearrangement of all or any part of the Guaranteed Obligations,
the Note, the Mortgage, the Loan Agreement, the other Loan Documents or any
other document, instrument, contract or understanding between Borrower and
Lender or any other parties pertaining to the Guaranteed Obligations or any
failure of Lender to notify Guarantor of any such action.
2.2 Adjustment. Any adjustment, indulgence, forbearance or compromise that
might be granted or given by Lender to Borrower or any Guarantor.
2.3 Condition of Borrower or Guarantor. The insolvency, bankruptcy,
arrangement, adjustment, composition, liquidation, disability, dissolution or
lack of power of Borrower, Guarantor or any other party at any time liable for
the payment of all or part of the Guaranteed Obligations; or any dissolution of
Borrower or Guarantor or any sale, lease or transfer of any or all of the assets
of Borrower or Guarantor or any changes in the shareholders, partners or members
of Borrower or Guarantor; or any reorganization of Borrower or Guarantor.
2.4 Invalidity of Guaranteed Obligations. The invalidity, illegality or
unenforceability of all or any part of the Guaranteed Obligations or any
document or agreement executed in connection with the Guaranteed Obligations for
any reason whatsoever, including without limitation the fact that (i) the
Guaranteed Obligations or any part thereof exceeds the amount permitted by law,
(ii) the act of creating the Guaranteed Obligations or any part thereof is ultra
xxxxx, (iii) the officers or representatives executing the Note, the Mortgage,
the Loan Agreement or the other Loan Documents or otherwise creating the
Guaranteed Obligations acted in excess of their authority, (iv) the Guaranteed
Obligations violate applicable usury laws, (v) the Borrower has valid defenses,
claims or offsets (whether at law, in equity or by agreement) which render the
Guaranteed Obligations wholly or partially uncollectible from Borrower, (vi) the
creation, performance or repayment of the Guaranteed Obligations (or the
execution, delivery and performance of any document or instrument representing
part of the Guaranteed Obligations or executed in connection with the Guaranteed
Obligations or given to secure the repayment of the Guaranteed Obligations) is
illegal, uncollectible or unenforceable, or (vii) the Note, the Mortgage, the
Loan Agreement or any of the other Loan Documents have been forged or otherwise
are irregular or not genuine or authentic, it being agreed that Guarantor shall
remain liable hereon regardless of whether Borrower or any other person be found
not liable on the Guaranteed Obligations or any part thereof for any reason.
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2.5 Release of Obligors. Any full or partial release of the liability of
Borrower on the Guaranteed Obligations or any part thereof, or of any
co-guarantors, or any other Person now or hereafter liable, whether directly or
indirectly, jointly, severally, or jointly and severally, to pay, perform,
guarantee or assure the payment of the Guaranteed Obligations, or any part
thereof, it being recognized, acknowledged and agreed by Guarantor that
Guarantor may be required to pay the Guaranteed Obligations in full without
assistance or support of any other party, and Guarantor has not been induced to
enter into this Guaranty on the basis of a contemplation, belief, understanding
or agreement that other parties will be liable to pay or perform the Guaranteed
Obligations, or that Lender will look to other parties to pay or perform the
Guaranteed Obligations.
2.6 Other Collateral. The taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any part of
the Guaranteed Obligations.
2.7 Release of Collateral. Any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including without limitation
negligent, willful, unreasonable or unjustifiable impairment) of any collateral,
property or security at any time existing in connection with, or assuring or
securing payment of, all or any part of the Guaranteed Obligations.
2.8 Care and Diligence. The failure of Lender or any other party to
exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of any
collateral, property or security, including but not limited to any neglect,
delay, omission, failure or refusal of Lender (i) to take or prosecute any
action for the collection of any of the Guaranteed Obligations or (ii) to
foreclose, or initiate any action to foreclose, or, once commenced, prosecute to
completion any action to foreclose upon any security therefor, or (iii) to take
or prosecute any action in connection with any instrument or agreement
evidencing or securing all or any part of the Guaranteed Obligations.
2.9 Unenforceability. The fact that any collateral, security, security
interest or lien contemplated or intended to be given, created or granted as
security for the repayment of the Guaranteed Obligations, or any part thereof,
shall not be properly perfected or created, or shall prove to be unenforceable
or subordinate to any other security interest or lien, it being recognized and
agreed by Guarantor that Guarantor is not entering into this Guaranty in
reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations.
2.10 Offset. The Note, the Guaranteed Obligations and the liabilities and
obligations of the Guarantor to Lender hereunder shall not be reduced,
discharged or released because of or by reason of any existing or future right
of offset, claim or defense of Borrower against Lender, or any other party, or
against payment of the Guaranteed Obligations, whether such right of offset,
claim or defense arises in connection with the Guaranteed Obligations (or the
transactions creating the Guaranteed Obligations) or otherwise.
2.11 Merger. The reorganization, merger or consolidation of Borrower into
or with any other Person.
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2.12 Preference. Any payment by Borrower to Lender is held to constitute a
preference under bankruptcy laws or for any reason Lender is required to refund
such payment or pay such amount to Borrower or someone else.
2.13 Other Actions Taken or Omitted. Any other action taken or omitted to
be taken with respect to the Loan Documents, the Guaranteed Obligations, or the
security and collateral therefor, whether or not such action or omission
prejudices Guarantor or increases the likelihood that Guarantor will be required
to pay the Guaranteed Obligations pursuant to the terms hereof, it is the
unambiguous and unequivocal intention of Guarantor that Guarantor shall be
obligated to pay the Guaranteed Obligations when due, notwithstanding any
occurrence, circumstance, event, action, or omission whatsoever, whether
contemplated or uncontemplated, and whether or not otherwise or particularly
described herein, which obligation shall be deemed satisfied only upon the full
and final payment and satisfaction of the Guaranteed Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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To induce Lender to enter into the Loan Documents and extend credit to
Borrower, Guarantor represents and warrants to Lender as follows:
3.1 Benefit. Guarantor is an Affiliate of Borrower, is the owner of a
direct or indirect interest in Borrower, and has received, or will receive,
direct or indirect benefit from the making of this Guaranty with respect to the
Guaranteed Obligations.
3.2 Familiarity and Reliance. Guarantor is familiar with, and has
independently reviewed books and records regarding, the financial condition of
the Borrower and is familiar with the value of any and all collateral intended
to be created as security for the payment of the Note or Guaranteed Obligations;
however, Guarantor is not relying on such financial condition or the collateral
as an inducement to enter into this Guaranty.
3.3 No Representation By Lender. Neither Lender nor any other party has
made any representation, warranty or statement to Guarantor in order to induce
the Guarantor to execute this Guaranty.
3.4 Guarantor's Financial Condition. As of the date hereof, and after
giving effect to this Guaranty and the contingent obligation evidenced hereby,
Guarantor is and will be solvent and has and will have assets which, fairly
valued, exceed its obligations, liabilities (including contingent liabilities)
and debts, and has and will have property and assets sufficient to satisfy and
repay its obligations and liabilities.
3.5 Legality. The execution, delivery and performance by Guarantor of this
Guaranty and the consummation of the transactions contemplated hereunder do not
and will not contravene or conflict with any law, statute or regulation
whatsoever to which Guarantor is subject or constitute a default (or an event
which with notice or lapse of time or both would constitute a default) under, or
result in the breach of, any indenture, mortgage, charge, lien, or any contract,
agreement or other instrument to which Guarantor is a party or which may be
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applicable to Guarantor. This Guaranty is a legal and binding obligation of
Guarantor and is enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors' rights.
3.6 Survival. All representations and warranties made by Guarantor herein
shall survive the execution hereof.
ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
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4.1 Subordination of All Guarantor Claims. As used herein, the term
"Guarantor Claims" shall mean all debts and liabilities of Borrower to
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligations of Borrower thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such debts or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by Guarantor. The Guarantor Claims shall include without limitation
all rights and claims of Guarantor against Borrower (arising as a result of
subrogation or otherwise) as a result of Guarantor's payment of all or a portion
of the Guaranteed Obligations. After the occurrence of an Event of Default or
the occurrence of an event which would, with the giving of notice or the passage
of time, or both, constitute an Event of Default, Guarantor shall not receive or
collect, directly or indirectly, from Borrower or any other party any amount
upon the Guarantor Claims.
4.2 Claims in Bankruptcy. In the event of receivership, bankruptcy,
reorganization, arrangement, debtor's relief, or other insolvency proceedings
involving Guarantor as debtor, Lender shall have the right to prove its claim in
any such proceeding so as to establish its rights hereunder and receive directly
from the receiver, trustee or other court custodian dividends and payments which
would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such
dividends and payments to Lender. Should Lender receive, for application against
the Guaranteed Obligations, any dividend or payment which is otherwise payable
to Guarantor and which, as between Borrower and Guarantor, shall constitute a
credit against the Guarantor Claims, then, upon payment to Lender in full of the
Guaranteed Obligations, Guarantor shall become subrogated to the rights of
Lender to the extent that such payments to Lender on the Guarantor Claims have
contributed toward the liquidation of the Guaranteed Obligations, and such
subrogation shall be with respect to that proportion of the Guaranteed
Obligations which would have been unpaid if Lender had not received dividends or
payments upon the Guarantor Claims.
4.3 Payments Held in Trust. In the event that, notwithstanding anything to
the contrary in this Guaranty, Guarantor should receive any funds, payment,
claim or distribution which is prohibited by this Guaranty, Guarantor agrees to
hold in trust for Lender an amount equal to the amount of all funds, payments,
claims or distributions so received, and agrees that it shall have absolutely no
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dominion over the amount of such funds, payments, claims or distributions so
received except to pay them promptly to Lender, and Guarantor covenants promptly
to pay the same to Lender.
4.4 Liens Subordinate. Guarantor agrees that any liens, security interests,
judgment liens, charges or other encumbrances upon Borrower's assets securing
payment of the Guarantor Claims shall be and remain inferior and subordinate to
any liens, security interests, judgment liens, charges or other encumbrances
upon Borrower's assets securing payment of the Guaranteed Obligations,
regardless of whether such encumbrances in favor of Guarantor or Lender
presently exist or are hereafter created or attach. Without the prior written
consent of Lender, Guarantor shall not (i) exercise or enforce any creditor's
right it may have against Borrower, or (ii) foreclose, repossess, sequester or
otherwise take steps or institute any action or proceedings (judicial or
otherwise, including without limitation the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any liens, mortgage, deeds of trust, security interests,
collateral rights, judgments or other encumbrances on assets of Borrower held by
Guarantor.
ARTICLE V
MISCELLANEOUS
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5.1 Waiver. No failure to exercise, and no delay in exercising, on the part
of Lender, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right. The rights of Lender hereunder shall
be in addition to all other rights provided by law. No modification or waiver of
any provision of this Guaranty, nor consent to departure therefrom, shall be
effective unless in writing and no such consent or waiver shall extend beyond
the particular case and purpose involved. No notice or demand given in any case
shall constitute a waiver of the right to take other action in the same, similar
or other instances without such notice or demand.
5.2 Notices. All notices given hereunder shall be in writing and shall be
either hand delivered or mailed, by registered U.S. mail, Return Receipt
Requested, first class postage prepaid, to the parties at their respective
addresses below or at such other address for any party as such party may
designate by notice to the other parties hereto:
If to Lender: Xxxxxx Xxxxxxx Credit Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx and Xxxxx Xxxxxx
Facsimile No. (000) 000-0000
with a copy to: Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No. (000) 000-0000
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If to Guarantor: Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Senior Vice President
Facsimile No. (000) 000-0000
with a copy to: Xxxxx Xxxxx Xxxx LLC
Xxxxx 0000
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxxxx, Esq.
Facsimile No. (000) 000-0000
5.3 Governing Law; Submission to Jurisdiction. This Guaranty shall be
governed by and construed in accordance with the laws of the State of New York
pursuant to Section 5-1401 of the New York General Obligations Law (without
regard to any other principles of conflict of laws) and the applicable laws of
the United States of America. Any legal suit, action or proceeding against
Lender or Guarantor arising out of or relating to this Guaranty may at Lender's
option be instituted in any Federal or State court in the City of New York,
County of New York, pursuant to Section 5-1402 of the New York General
Obligations Law and Guarantor waives any objections which it may now or
hereafter have based on venue and/or forum non conveniens of any such suit,
action or proceeding, and Guarantor hereby irrevocably submits to the
jurisdiction of any such court in any suit, action or proceeding. Guarantor does
hereby designate and appoint:
Corporation Service Company
1177 Avenue of the Xxxxxxxx
00XX Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
as its authorized agent to accept and acknowledge on its behalf service of any
and all process which may be served in any such suit, action or proceeding in
any Federal or State court in New York, New York, and agrees that service of
process upon said agent at said address and written notice of said service
mailed or delivered to Guarantor in the manner provided herein shall be deemed
in every respect effective service of process upon Guarantor in any such suit,
action or proceeding in the State of New York.
5.4 Invalid Provisions. If any provision of this Guaranty is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term of this Guaranty, such provision shall be fully severable and this
Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Guaranty, unless such continued effectiveness of this
Guaranty, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed herein.
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5.5 Amendments. This Guaranty may be amended only by an instrument in
writing executed by the party or an authorized representative of the party
against whom such amendment is sought to be enforced.
5.6 Parties Bound; Assignment; Joint and Several. This Guaranty shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors, assigns and legal representatives; provided, however, that Guarantor
may not, without the prior written consent of Lender, assign any of its rights,
powers, duties or obligations hereunder. If Guarantor consists of more than one
person or party, the obligations and liabilities of each such person or party
shall be joint and several.
5.7 Headings. Section headings are for convenience of reference only and
shall in no way affect the interpretation of this Guaranty.
5.8 Recitals. The recital and introductory paragraphs hereof are a part
hereof, form a basis for this Guaranty and shall be considered prima facie
evidence of the facts and documents referred to therein.
5.9 Counterparts. To facilitate execution, this Guaranty may be executed in
as many counterparts as may be convenient or required. It shall not be necessary
that the signature of, or on behalf of, each party, or that the signature of all
persons required to bind any party, appear on each counterpart. All counterparts
shall collectively constitute a single instrument. It shall not be necessary in
making proof of this Guaranty to produce or account for more than a single
counterpart containing the respective signatures of, or on behalf of, each of
the parties hereto. Any signature page to any counterpart may be detached from
such counterpart without impairing the legal effect of the signatures thereon
and thereafter attached to another counterpart identical thereto except having
attached to it additional signature pages.
5.10 Rights and Remedies. If Guarantor becomes liable for any indebtedness
owing by Borrower to Lender, by endorsement or otherwise, other than under this
Guaranty, such liability shall not be in any manner impaired or affected hereby
and the rights of Lender hereunder shall be cumulative of any and all other
rights that Lender may ever have against Guarantor. The exercise by Lender of
any right or remedy hereunder or under any other instrument, or at law or in
equity, shall not preclude the concurrent or subsequent exercise of any other
right or remedy.
5.11 Other Defined Terms. Any capitalized term utilized herein shall have
the meaning as specified in the Loan Agreement, unless such term is otherwise
specifically defined herein.
5.12 Entirety. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF
GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE GUARANTEED
OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND LENDER AS A
FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF
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DEALING BETWEEN GUARANTOR AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE
PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE
USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY
AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LENDER.
5.13 Waiver of Right To Trial By Jury. GUARANTOR HEREBY AGREES NOT TO ELECT
A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES 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 MORTGAGE, THE LOAN AGREEMENT,
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 GUARANTOR, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY GUARANTOR.
5.14 Cooperation. Guarantor acknowledges that Lender and its successors and
assigns may (i) sell this Guaranty, the Note and other Loan Documents to one or
more investors as a whole loan, (ii) participate the Loan secured by this
Guaranty to one or more investors, (iii) deposit this Guaranty, the Note and
other Loan Documents with a trust, which trust may sell certificates to
investors evidencing an ownership interest in the trust assets, or (iv)
otherwise sell the Loan or interest therein to investors (the transactions
referred to in clauses (i) through (iv) are hereinafter each referred to as
"Secondary Market Transaction"). Guarantor shall cooperate with Lender in
effecting any such Secondary Market Transaction and shall cooperate to implement
all requirements imposed by any Rating involved in any Secondary Market
Transaction. Guarantor shall provide such information and documents relating to
Guarantor, Borrower, the Property and any tenants of the Improvements as Lender
may reasonably request in connection with such Secondary Market Transaction. In
addition, Guarantor shall make available to Lender all information concerning
its business and operations that Lender may reasonably request. Lender shall be
permitted to share all such information with the investment banking firms,
Rating Agencies, accounting firms, law firms and other third-party advisory
firms involved with the Loan and the Loan Documents or the applicable Secondary
Market Transaction. It is understood that the information provided by Guarantor
to Lender may ultimately be incorporated into the offering documents for the
Secondary Market Transaction and thus various investors may also see some or all
of the information. Lender and all of the aforesaid third-party advisors and
professional firms shall be entitled to rely on the information supplied by, or
on behalf of, Guarantor in the form as provided by Guarantor. Lender may
publicize the existence of the Loan in connection with its marketing for a
Secondary Market Transaction or otherwise as part of its business development.
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5.15 Reinstatement in Certain Circumstances. If at any time any payment of
the principal of or interest under the Note or any other amount payable by the
Borrower under the Loan Documents is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, the Guarantor's obligations hereunder with respect to such payment
shall be reinstated as though such payment has been due but not made at such
time.
5.16 Waivers.
(a) Guarantor waives all benefits and defenses it may have under
California Civil Code Section 2810 and agrees that Lender's rights under
this Guaranty shall be enforceable even if Borrower had no liability at the
time of execution of the Loan Documents or later ceases to be liable.
(b) Guarantor waives all benefits and defenses it may have under
California Civil Code Section 2809 and agrees that Lender's rights under
the Loan Documents will remain enforceable even if the amount secured by
the Loan Documents is larger in amount and more burdensome than that for
which Borrower is responsible. The enforceability of this Guaranty against
Guarantor shall continue until all sums due under the Loan Documents have
been paid in full and shall not be limited or affected in any way by any
impairment or any diminution or loss of value of any security or collateral
for Borrower's obligations under the Loan Documents, from whatever cause,
the failure of any security interest in any such security or collateral or
any disability or other defense of Borrower, any guarantor of Borrower's
obligations under the Loan Documents, any other pledgor of collateral for
any Person's obligations to Lender or any other Person in connection with
the Loan.
(c) Guarantor waives all benefits and defenses it may have under
California Civil Code Sections 2845, 2849 and 2850 (subject to Section 1.10
of this Guaranty), including, without limitation, the right to require
Lender to (i) proceed against Borrower, any guarantor of Borrower's
obligations under the Loan Documents, any other pledgor of collateral for
any Person's obligations to Lender or any other Person in connection with
the Loan, (ii) proceed against or exhaust any other security or collateral
Lender may hold, or (iii) pursue any other right or remedy for Borrower's
benefit, and agree that Lender may exercise its rights under this Agreement
or may foreclose against any of the Individual Properties without taking
any action against Borrower, any guarantor of Borrower's obligations under
the Loan Documents, any pledgor of collateral for any Person's obligations
to Lender or any other Person in connection with the Loan, and without
proceeding against or exhausting any security or collateral Lender holds.
(d) Guarantor waives any rights or benefits it may have by reason of
California Code of Civil Procedure Section 580a which could limit the
amount which Lender could recover in a foreclosure of any of the Individual
Properties to the difference between the amount owing under the Loan
Documents and the fair value of any such Individual Property or interests
sold at a nonjudicial foreclosure sale or sales of any other real property
held by Lender as security for the obligations under the Loan Documents.
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(e) Guarantor waives all rights and defenses that are or may become
available to the guarantor or other surety by reason of California Civil
Code Sections 2787 to 2855, inclusive, subject to Section 1.10 of this
Guaranty.
5.17 Guarantor Informed of Borrower's Condition. Guarantor acknowledges
that it has had an opportunity to review the Loan Documents, the value of the
security for each of the other entities comprising Borrower under the Loan
Documents and the financial condition of each of the other entities comprising
Borrower and the ability of such entity to satisfy its obligations to Lender.
Guarantor agrees to keep itself fully informed of all aspects of the financial
condition of Borrower and of the performance of Borrower to Lender and agrees
that Lender has no duty to disclose to Guarantor any information pertaining to
Borrower or any security for the obligations of the other entities comprising
Borrower under the Loan Documents.
5.18 Waiver of Estoppel Defense. Upon Borrower's default under the Loan
Documents, Lender may elect to foreclose nonjudicially on real property given by
Borrower or others as security under the Loan Documents and also to exercise its
rights under this Guaranty. Guarantor acknowledges that its right to seek
reimbursement from Borrower for any amounts paid by it to Lender under this
Guaranty will be eliminated if Lender elects to so foreclose on Guarantor's
property. Nevertheless, Guarantor waives any such right to reimbursement and
agrees that a nonjudicial foreclosure by Lender against any real property
security owned by Guarantor or others will not affect the enforceability of the
Loan Documents on Guarantor's interest in any of the Property. In order to
further effectuate such waiver, Guarantor hereby agrees as follows:
it 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 any of the Property, has destroyed its rights
of subrogation and reimbursement against Borrower by the operation of
Section 580d of the Code of Civil Procedure or otherwise.
5.19 Subrogation. Guarantor waives its rights under California Civil Code
Sections 2847, 2848 and 2849 to the extent not inconsistent with the Section
1.10 of this Guaranty.
5.20 Confirmation of Waivers. In accordance with California Civil Code
Section 2856(c), Guarantor, as guarantor, hereby makes the following waivers:
The Guarantor waives all rights and defenses that the Guarantor may have
because the Borrower's debt is secured by real property. This means, among other
things:
(a) The Lender may collect from the guarantor without first
foreclosing on any other real or personal property collateral pledged by
the Borrower or any other person.
(b) If the Lender forecloses on any real property collateral pledged
by the Borrower:
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The amount of the Loan may be reduced only by the price for which
the collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price.
The Lender may collect from the Guarantor even if the Lender, by
foreclosing on the real property collateral, has destroyed any
right the Guarantor may have to collect from the debtor.
This is an unconditional and irrevocable waiver of any rights and defenses
the Guarantor may have because the Borrower's debt is secured by real property.
These rights and defenses include, but are not limited to, any rights or
defenses based upon Section 580a, 580b, 580d or 726 of the California Code of
Civil Procedures.
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EXECUTED as of the day and year first above written.
GUARANTOR:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership
By: GLIMCHER PROPERTIES CORPORATION, a
Delaware corporation, its sole general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
