EXHIBIT 10.15
GUARANTY OF PAYMENT
THIS GUARANTY OF PAYMENT (this "Guaranty") is signed and delivered this
5th day of January, 2004 by POLARIS MALL, LLC, a Delaware limited liability
company ("Guarantors", even if there is only one Guarantor; see Section 5.20
hereof). All capitalized terms used but not defined herein shall have the same
meaning as given to such term in the Loan Agreement (as defined below).
ARTICLE 1
THE GUARANTY
1.1 Guarantors' Agreement. Each of the Guarantors hereby jointly
and severally, unconditionally and irrevocably guarantees to BANK ONE, NA, a
national banking association ("Lender") to pay and perform when due the
Obligations (as hereinafter defined) and to pay on demand the Expenses (as
hereinafter defined). This Guaranty is absolute, independent and continuing
under all circumstances, and is a guaranty of payment and performance, not of
collection. Each Guarantor hereby acknowledges that Lender has given sufficient
consideration for this Guaranty by entering into that certain Loan Agreement
dated of even date herewith (the "Loan Agreement") with Glimcher Properties
Limited Partnership, a Delaware limited partnership ("Borrower"), and agreeing
to make the loan described therein (the "Loan") and to otherwise perform its
obligations thereunder. Each Guarantor. hereby further acknowledges that Lender
is doing all of the foregoing in reliance on each of the terms of this Guaranty.
Guarantor hereby further acknowledges and represents to Lender that by virtue of
the Loan being made to Borrower, and Borrower becoming the sole member of
Guarantor, Guarantor has thus become a wholly owned subsidiary of Borrower and
as such it is deriving a material benefit from the making of the Loan to
Borrower.
1.2 Obligations. For all purposes of this Guaranty, the term
"Obligations" shall mean all monetary obligations of Borrower to Lender of any
kind whatsoever, howsoever created, arising or evidenced, whether pursuant to a
covenant, representation, warranty, indemnity or other agreement of any kind,
whether direct or indirect, absolute or contingent, recourse or non-recourse, or
now or hereafter existing, or due or to become due, and which arise under the
Loan Agreement, the Note (as defined in the Loan Agreement), any Rate Management
Transaction (as defined in the Loan Agreement) or any other Loan Document (as
defined in the Loan Agreement), including, without limitation, the obligation to
pay the principal amount of each of the Note when due thereunder and the
obligation to pay interest under each of the Note, including any interest at the
post-maturity or default rate (the "Default Rate"), and the obligation of
Borrower to contribute Borrower's funds to the Loan in accordance with the terms
and conditions of the Loan Agreement.
1.3 Expenses. For all purposes of this Guaranty, the term
"Expenses" shall mean all attorneys' fees and expenses and all other costs and
expenses of any kind which Lender may at
any time pay or incur after an Event of Default under the Loan Agreement in
attempting to collect, compromise or enforce in any respect the Obligations or
this Guaranty, whether or not suit is ever filed, and whether or not in
connection with any insolvency, bankruptcy, reorganization, arrangement or other
similar proceeding involving Borrower or any Guarantor. If Lender pays any such
cost or expense, "Expenses" shall also include interest at the Default Rate on
any such payment from the date thereof until repayment of Lender in full.
1.4 Total Amount of the Obligations. Each Guarantor acknowledges
that the total amount of the Obligations may exceed the total amount necessary
to pay in full each of the Note and all of the Expenses.
1.5 Continuing Guaranty. This Guaranty shall in all respects be a
continuing guaranty, remaining in full force and effect (notwithstanding,
without limitation, that from time to time all Obligations may have been
satisfied in full) until all of the following have occurred: (i) all of the
Obligations have been satisfied in full, (ii) all of the obligations of each of
the Guarantors hereunder have been satisfied in full, and (iii) Lender has no
further obligation to make any advance under the Loan Agreement. No notice of
discontinuance or revocation shall affect any of the obligations of any
Guarantor hereunder or of Borrower or any other obligor under any of the
Obligations. Lender shall not be obligated to accept at any time any deed in
lieu of foreclosure, and all obligations of each Guarantor hereunder shall
survive foreclosure or any deed in lieu of foreclosure which Lender may accept,
to the extent any of the Obligations remain unsatisfied or otherwise survive.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Each of the Guarantors hereby covenants, represents and warrants to
Lender as follows:
2.1 Review of Guaranty and Loan Documents. Such Guarantor has
reviewed, with the benefit of its legal counsel, each of the terms and
conditions of this Guaranty and each of the other Loan Documents, including,
without limitation, the Loan Agreement and the Note.
2.2 Financial Benefit to Guarantor. Such Guarantor is deriving a
material financial benefit from the making of the Loan to Borrower.
2.3 Organization; Authorization. Each Guarantor is a limited
liability company, duly organized, validly existing and in full force and effect
under the laws of the State of its formation, and duly qualified and in full
force and effect under the laws of each other State in which its activities
require that it be qualified, except where the failure to be so qualified or to
have the requisite authority would not have a Material Adverse Affect. Each such
Guarantor has executed and delivered this Guaranty pursuant to proper authority
duly granted.
2.4 Enforceability. Each obligation under this Guaranty is legal,
valid, binding and enforceable against each Guarantor in accordance with all of
its terms and conditions, subject to general principles of equity and the effect
of bankruptcy and other laws affecting the rights of creditors generally.
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2.5 No Existing Defaults and No Litigation. Such Guarantor is not
in default under any agreement with Lender, the effect of which default could
materially adversely affect performance of its obligations under this Guaranty.
There are no actions, suits or proceedings pending or, to the best of its
knowledge, threatened against such Guarantor before any court or any other
governmental authority of any kind which could materially adversely affect
performance of its obligations under this Guaranty.
2.6 Guaranty Will Cause No Violations of Law or Other Defaults.
Neither the execution and delivery of this Guaranty nor compliance with any and
all of its terms and conditions will violate any presently existing law,
regulation, order, writ, injunction or decree of any court or other governmental
authority of any kind, or result in any default by such Guarantor under any
other document or agreement of any kind.
2.7 No Misstatements or Omissions. This Guaranty does not contain
any untrue statement of fact or omit to state any fact material to this
Guaranty. Such Guarantor has no knowledge of any material fact concerning
Borrower or the financial condition of Borrower which has not been disclosed to
Lender in writing and might adversely affect Lender's determination to enter
into the Loan Agreement.
2.8 ERISA. Such Guarantor is not an "employee benefit plan" within
the meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended from time to time ("ERISA"), to which ERISA applies and such
Guarantor's assets do not constitute assets of any such plan.
ARTICLE 3
COVENANTS, CONDITIONS AND AGREEMENTS
Each of the Guarantors hereby covenants and agrees with Lender as
follows:
3.1 Rescinded or Returned Payments. If at any time any part of any
payment previously applied by Lender to any of the Obligations is rescinded or
returned by Lender for any reason, including, without limitation, the
insolvency, bankruptcy or reorganization of Borrower or any other party, such
Obligations shall be deemed to have continued in existence to the extent that
such payment is rescinded or returned, and this Guaranty shall be reinstated as
to such Obligations as though such prior application by Lender had not been
made.
3.2 Certain Permitted Actions of Lender. Lender may, from time to
time, at its option and without notice to any Guarantor, take any or all of the
following actions in any combination without in any way affecting the
obligations of any Guarantor: (i) obtain a security interest in any property to
secure any of the Obligations or any obligation hereunder; (ii) obtain the
primary or secondary obligation of any additional obligor or obligors with
respect to any of the Obligations; (iii) extend, modify, subordinate, exchange
or release any of the Obligations; (iv) modify, subordinate, exchange or release
its security interest in all or any part of any property securing any of the
Obligations or any obligation hereunder, or extend, modify, subordinate,
exchange or release any obligations of any obligor with respect to any such
property; (v) alter the manner or place of payment of the Obligations; (vi)
enforce this Guaranty against any Guarantor, for payment of any of the due but
unpaid Obligations,
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whether or not Lender shall have proceeded against Borrower or any other
Guarantor or any other party primarily or secondarily obligated with respect to
any of the Obligations, or resorted to or exhausted any other remedy or any
other security or collateral; and (vii) foreclose on, take possession of, or
sell any of the collateral or security for the Obligations or enforce any other
rights under any of the Loan Documents.
3.3 Lender's Option to Release Any Guarantor. Lender may, from
time to time, at its option, release any Guarantor from any of its obligations
hereunder or release Borrower or any other obligor from any of the Obligations
without notice to any other Guarantor or any other party and without in any way
releasing or affecting the liability of any other Guarantor.
3.4 Application of Payments. Lender may apply any payment made on
account of the Obligations toward such of the Obligations, and in such order, as
Lender may elect from time to time, whether or not such Obligations are
guaranteed hereby, otherwise secured, or due at the time of application.
3.5 Subordination. Such Guarantor hereby subordinates any claims
or liens of such Guarantor against Borrower of any kind (including, without
limitation, any right of such Guarantor to a return of any capital contributed
to Borrower) to all of the Obligations and to any other claims or liens of
Lender against Borrower or any of the property of Borrower. Upon any notice by
Lender to Borrower of any default under any Loan Document, such Guarantor shall
enforce any of its claims or liens as trustee for Lender, and shall cause any
receipts to be paid over to Lender on account of the Obligations without
affecting in any manner the liability of such Guarantor under this Guaranty,
except to the extent of such payment. As long as no such notice of default has
occurred, such Guarantor may apply to its own accounts payments made by
Borrower.
3.6 Certain Events Not Affecting Obligations of Any Guarantor. The
obligations of such Guarantor hereunder shall not be affected by any of the
following: (i) the release or discharge of Borrower in any creditors',
receivership, bankruptcy, reorganization, insolvency, or other proceedings; (ii)
the rejection or disaffirmance in any such proceeding of any of the Obligations;
(iii) the impairment or modification of any of the Obligations, or of any remedy
for the enforcement thereof, or of the estate of Borrower in bankruptcy,
resulting from any present or future federal or state bankruptcy law or any
other law of any kind or from the decision or order of any court or other
governmental authority; (iv) any defense of Borrower; (v) the cessation of the
liability of Borrower for any cause whatsoever; (vi) any sale, assignment,
transfer or other conveyance (including, without limitation, any conveyance in
lieu of foreclosure or any collateral sale pursuant to the Uniform Commercial
Code, as adopted in Ohio) of any of the security for any of the Obligations,
regardless of the amount received by Lender in connection therewith; or (vii)
any disability or defense of any kind now existing of such Guarantor with
respect to any provision of this Guaranty.
3.7 No Obligation of Lender Regarding Security Interest. Lender
shall have no obligation to obtain, perfect or retain a security interest in any
property to secure any of the Obligations or this Guaranty (including, without
limitation, any mortgage or security interest contemplated by any of the Loan
Documents), or to protect or insure any such property.
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3.8 Filing of Certain Claims. Such Guarantor shall promptly file
in any bankruptcy or other proceeding in which the filing of claims is required
by law all claims and proofs of such claims which such Guarantor may have
against Borrower, and shall collaterally assign to Lender or its nominee all
rights of such Guarantor thereunder. In all such cases, any party authorized to
pay such claim shall pay to Lender or, its nominee the full amount thereof.
3.9 ERISA. For so long as this Guaranty shall be continuing, such
Guarantor hereby covenants to Lender, that, for the duration of the term of this
Guaranty, such Guarantor shall not be an "employee benefit plan" within the
meaning of Section 3(3) of ERISA to which ERISA applies and such Guarantor's
assets shall not constitute assets of any such plan.
3.10 Performance by One Guarantor Deemed Performance by All. Each
Guarantor hereby authorizes any other Guarantor to perform any obligation under
this Guaranty, and Lender may rely on any such performance as if it had been
made by all Guarantors.
3.11 Waivers by Guarantors. Each of the Guarantors hereby expressly
waives each of the following: (i) notice of the acceptance by Lender of this
Guaranty, notice of the existence, creation or non-payment of any of the
Obligations, presentment, demand, notice of dishonor, protest, notice of
protest, and all other notices except any specifically required by this
Guaranty; (ii) any obligation Lender may have to disclose to such Guarantor any
facts Lender now or hereafter may know or have reasonably available to it
regarding Borrower or the financial condition of Borrower, whether or not Lender
has a reasonable opportunity to communicate such facts or has reason to believe
that any such facts are unknown to such Guarantor or materially increase the
risk to such Guarantor beyond the risk such Guarantor intends to assume
hereunder; such Guarantor shall be fully responsible for keeping informed of the
financial condition of Borrower and of all other circumstances bearing on the
risk of non-payment or non-performance of the Obligations; (iii) all diligence
in collection of any of the Obligations, any obligation hereunder, or any
guaranty or other security for any of the foregoing; (iv) the benefit of all
appraisement, valuation, marshaling, forbearance, stay, extension, redemption,
homestead, exemption and moratorium laws now or hereafter in effect; (v) any
defense based on the incapacity, lack of authority, death or disability of any
other person or entity or the failure of Lender to file or enforce a claim
against the estate of any person or entity in any administrative, bankruptcy or
other proceeding; (vi) any defense based on an election of .remedies by Lender,
whether or not such election may affect in any way the recourse, subrogation or
other rights of such Guarantor against Borrower or any other person in
connection with the Obligations; (vii) any defense based on the failure of
Lender to (A) provide notice to such Guarantor of a sale or other disposition
(including any collateral sale pursuant to the Uniform Commercial Code, as
adopted in Ohio) of any of the security for any of the Obligations, or (B)
conduct such a sale or disposition in a commercially reasonable manner; (viii)
any defense based on the negligence of Lender in administering the Loan, or
taking or failing to take any action in connection therewith, or based on any
claim that Lender failed to act both in good faith and in a commercially
reasonable manner; and (ix) any rights arising because of such Guarantor's
payment or performance of any of the Obligations (A) against Borrower, by way of
subrogation of the rights of Lender or otherwise, or (B) against any other
Guarantor or any other party obligated to pay or perform any of the Obligations,
by way of contribution or reimbursement or otherwise.
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3.12 Financial Statements. Guarantors shall deliver or cause to be
delivered to Lender (a) Guarantors' internal unaudited financial statements
within one hundred twenty (120) days of Guarantors' execution of this Guaranty,
(b) quarterly rent roll for PFP Columbus, LLC, a Delaware limited liability
company ("PFP"), within sixty (60) days of the end of each fiscal quarter, and
(c) quarterly operating statements for PFP within sixty (60) days of the end of
each fiscal quarter.
ARTICLE 4
DEFAULT OF GUARANTORS WHEN BORROWER IS NOT IN DEFAULT
4.1 Events of Default. The occurrence of any of the following,
regardless of whether or not any performance or payment of any of the
Obligations shall then be due, shall be a default under this Guaranty: (i) the
death, incompetency, dissolution, liquidation, bankruptcy or insolvency of any
Guarantor, the inability of any Guarantor to pay its debts generally as they
become due, or a general assignment by any Guarantor for the benefit of
creditors; (ii) any application for or consent to the appointment of a trustee,
receiver or other custodian for any Guarantor or any assets or property of any
of them, or the institution of any proceeding by any Guarantor under any federal
or state laws providing for the relief of debtors or otherwise alleging that any
Guarantor is insolvent, bankrupt or unable to pay its debts generally as they
become due; (iii) the institution of any proceeding against any Guarantor under
any federal or state laws providing for the relief of debtors or otherwise
alleging that any Guarantor is insolvent, bankrupt or unable to pay its debts
generally as they become due which is not vacated within sixty (60) days of
filing; (iv) any Guarantor is in breach of any of its representations and
warranties contained herein; or (v) any Guarantor is in breach of or fails to
perform any of its covenants, agreements and obligations set forth herein and
such breach or failure continues for a period of thirty (30) days after notice
thereof from Lender to Guarantor.
4.2 Cure of Certain Defaults. Upon the occurrence of any of the
events described in clauses (i), (ii), (iii), (iv) or (v) of Section 4.1 hereof,
other than any breach described in clause (iv) or (v) relating to Section 2.8
hereof, Lender may, at its option, permit the Guarantor to whom such event
applies (or, in the case of the death of a Guarantor, the deceased Guarantor's
estate) to cure the resulting default by delivering to Lender within thirty (30)
days from the occurrence of such event, in the case of any event described in
said clause (i), (ii) or (iii), or within thirty (30) days from the date notice
is given to the Guarantor by Lender, in the case of any event described in said
clause (iv) or (v) (except events which relate to Section 2.8 hereof as
aforesaid), Cash Collateral (as hereinafter defined) in an amount sufficient to
pay all of the Obligations if they were then due and payable. As used herein,
"Cash Collateral" shall mean, in Lender's sole discretion, either cash or any
combination of cash and letters of credit or other cash equivalents or other
security satisfactory in amount and all other respects to Lender. Lender shall
invest all such cash or cash equivalents in United States treasury obligations
as additional security for payment of the Obligations, and "Cash Collateral"
shall include any interest which may accrue thereon. Lender may apply any Cash
Collateral to the payment of any of the Obligations not paid in full when due
and will remit to the appropriate Guarantor any excess remaining after the full
performance of and payment in full of all of the Obligations.
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ARTICLE 5
MISCELLANEOUS
5.1 Application of GAAP. Where the character or amount of any
asset or liability or item of income or expense is required, to be determined or
any consolidation or other accounting computation is required to be made for the
purpose of this Guaranty, the same shall be done in accordance with generally
accepted accounting principles, to the extent applicable, except where such
principles are inconsistent with the requirements of this Guaranty or those of
the Loan Agreement.
5.2 Joint and Several Obligations: Successors and Assigns. All
obligations under this Guaranty are joint and several to each of the Guarantors
and any other party which hereafter guarantees any portion of the Obligations,
and shall be binding upon each of them and their respective heirs, legal
representatives, successors and assigns.
5.3 Assignment by Lender. Lender may from time to time, without
notice to any Guarantor, assign or transfer any interest in any of the
Obligations by loan participation or otherwise, and notwithstanding such
assignment or transfer, such Obligations shall remain Obligations for purposes
of this Guaranty. Each immediate and successive assignee or transferee of any
interest in any of the Obligations and this Guaranty shall, to the extent of
such interest, be entitled to the benefits of this Guaranty to the same extent
as if such assignee -or transferee were Lender. Lender may deliver to any such
assignee or transferee any financial statements delivered by any Guarantor in
connection with this Guaranty.
5.4 No Exculpation. No exculpatory, "non-recourse," "limited
recourse," or other language contained in any other Loan Document or in any
other document shall in any way prevent Lender from, or otherwise limit Lender
in, enforcing this Guaranty against any Guarantor.
5.5 Legal Tender of United States. All payments hereunder shall be
made in coin or currency which at the time of payment is legal tender in the
United States of America for public and private debts.
5.6 Time of Essence. Time is of the essence of this Guaranty.
5.7 Definitions; Captions. With respect to any reference in this
Guaranty to any defined term, (i) if such defined term refers to a person, or a
trust, corporation, partnership or other entity, then it shall also mean all
heirs, personal representatives,-successors and assigns of such person or
entity, and (ii) if such defined term refers to a document, instrument or
agreement, then it shall also include any replacement, extension or other
modification thereof. Captions contained in this Guaranty in no way define,
limit or extend the scope or intent of their respective provisions.
5.8 Notices. Any notices that Lender or any Guarantor may give
hereunder shall be deemed given if in writing and if delivered personally, or if
mailed, postage prepaid, by United States registered or' certified mail, return
receipt requested, or if delivered by a responsible overnight courier,
addressed:
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If to Guarantors: Polaris Mall, LLC
000 X. Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
with a copy to: Xxxxx Xxxxx Xxxx LLC
One Columbus, Suite 1000
00 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxxx, Esq.
In the case of Lender to: Bank One, NA
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxx X. XxXxxxxx
with a copy to: Xxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. XxXxxxxx, Esq.
or to such other address or addresses as the party to be given notice may have
furnished in writing to the party seeking or desiring to give notice, as a place
for the giving of notice, provided-that no change in address shall be effective
until seven (7) days after being given to the other party in the manner provided
for above. Any notice given in accordance with the foregoing shall be deemed
given when delivered personally or, if mailed, three (3) business days after it
shall have been deposited in the United States mails as aforesaid or, if sent by
overnight courier, the business day following the date of delivery to such
courier. Nothing in this notice provision shall be construed as a requirement
that Lender give any notice under this Guaranty.
5.9 Entire Agreement. This Guaranty constitutes the entire
agreement of the Guarantors for the benefit of Lender and supersedes any prior
agreements with respect to the subject matter hereof.
5.10 No Modification Without Writing. This Guaranty may not be
terminated or modified in any way nor can any right of Lender or any obligation
of any Guarantor be waived or modified, except by a writing signed by Lender and
such Guarantor.
5.11 Independent Obligations. The obligations of each Guarantor
hereunder are independent of the obligations of Borrower and each other
Guarantor. In the event of any default hereunder, Lender may institute a
separate action against any Guarantor with or without joining or instituting a
separate action against Borrower or any other Guarantor or other obligor.
5.12 Documentation. All documents and other matters required by any
of the provisions of this Guaranty to be submitted or furnished to Lender shall
be in form and substance satisfactory to Lender.
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5.13 Additional Assurances. Each Guarantor agrees that, at any time
or from time to time, upon the written request of Lender, such Guarantor will
execute all such further documents and do all such other acts and things as
Lender may request to effectuate the purposes of this Guaranty.
5.14 Choice of Law. This Guaranty shall be governed by and
construed in accordance with the internal laws of the State of Ohio. Guarantors
acknowledge that Lender's principal office is located in Columbus, Ohio and that
Lender may be irreparably harmed if required to institute or defend any action
in any jurisdiction other than the Southern District of Ohio or Franklin County,
Ohio. Therefore, each of the Guarantors irrevocably (i) agrees that any suit,
action or other legal proceeding relating to this Guaranty may be brought only
in the Circuit Court of Franklin County or in the Southern District of Ohio, at
Lender's option, (ii) consents to the jurisdiction of each such court in any
such suit, action or proceeding, and (iii) waives any objection which such
Guarantor may have to the laying of venue in any such suit, action or proceeding
in either such court. Nothing herein shall be deemed to limit any rights, powers
or privileges which Lender may have pursuant to any law of the United States of
America or any rule, regulation or order of any department or agency thereof and
nothing herein shall be deemed to make unlawful any transaction or conduct by
Lender which is lawful pursuant to, or which is permitted by, any of the
foregoing.
5.15 No Third Party Beneficiary. This Guaranty is made for the sole
benefit of Guarantors and Lender, and no other person shall be deemed to have
any privity of contract hereunder nor any right to rely hereon to any extent or
for any purpose whatsoever, nor shall any other person have any right of action
of any kind hereon or be deemed to be a third party beneficiary hereunder.
5.16 Interpretation. All references herein to a party's best
knowledge shall be deemed to mean the best knowledge of such party based on all
appropriate and thorough inquiry. Unless specified to the contrary herein,
references herein to an exercise of discretion or judgment by Lender, to the
making of a determination or designation by Lender, to the application of
Lender's discretion or opinion, to the granting or withholding of Lender's
consent or approval, to the consideration of whether a matter or thing is
satisfactory or acceptable to Lender, or otherwise involving the decision making
of Lender, shall be deemed to mean that Lender shall decide unilaterally using
its sole and absolute discretion or judgment. The terms "herein," "hereof,"
"hereunder" and any other similar terms used herein shall be deemed to refer to
this Agreement in its entirety. Any reference contained herein to attorneys'
fees and expenses shall be deemed to be to reasonable fees and expenses and to
include all reasonable fees and expenses of in-house or staff attorneys and the
reasonable fees and expenses of any other experts or consultants.
5.17 No Waiver. No waiver of any term, provision, condition,
covenant or agreement herein contained shall be effective unless set forth in a
writing signed by Lender, and any such waiver shall be effective only to the
extent set forth in such writing. No failure to exercise or delay in exercising
by Lender of any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof, or the exercise of any
other right or remedy provided by law. No notice or demand on any Guarantor in
any case shall, in itself,
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entitle such Guarantor to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of Lender to any other
or further action in any circumstances without notice or demand. No consent or
waiver, expressed or implied, by Lender to or of any breach or default by any
Guarantor in -the performance of its obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance of the same or any other obligations of such Guarantor hereunder.
Failure on the part of Lender to complain of any acts or failure to act or to
declare an Event of Default, irrespective of how long such failure continues,
shall not constitute a waiver by Lender of its rights hereunder or impair any
rights, powers or remedies on account of any breach or default by such
Guarantor.
5.18 Severability. Any provision of this Guaranty which is
unenforceable or invalid or contrary to law, or the inclusion of which would
adversely affect the validity, legality or enforcement of this Guaranty, shall
be of no effect and, in such case, all the remaining terms and provisions of
this Guaranty shall subsist and be fully effective according to the terms of
this Guaranty the same as though any such invalid portion had never been
included herein. Notwithstanding any of the foregoing to the contrary, if any
provisions of this Agreement or the application thereof are held invalid or
unenforceable only as to particular persons or situations, the remainder of this
Guaranty, and the application of such provision to persons or situations other
than those to which it shall have been held invalid or unenforceable, shall not
be affected thereby, but shall continue valid and enforceable to the fullest
extent permitted by law.
5.19 Cumulative. The obligations of each Guarantor hereunder are in
addition to any other obligations it may now or hereafter have to Lender, and
shall not be affected in any way by the delivery to Lender by any of the
Guarantors or any other guarantor of any other guaranty. All rights and remedies
of Lender and all obligations of the Guarantors under this Guaranty are
cumulative; without limitation, Lender's exercise of its right to receive Cash
Collateral from one Guarantor hereof shall in no way limit any right or remedy
of Lender against any other Guarantor. In addition, Lender shall have all rights
and remedies available to it in law or equity for the enforcement of this
Guaranty.
5.20 One Guarantor. If this Guaranty is made by only one Guarantor,
then all references in this Guaranty to the "Guarantors," "each of the
Guarantors," "any Guarantor," "any of the Guarantors", "such Guarantor" or any
similar reference shall be deemed to mean solely the Guarantor whose signature
is set forth below.
5.21 WAIVER OF JURY TRIAL. EACH GUARANTOR, AND BY ITS ACCEPTANCE
HEREOF, LENDER, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS THAT SUCH GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING
IN ANY WAY IN CONNECTION WITH THIS GUARANTY OR ANY OR THE OTHER LOAN DOCUMENTS
EXECUTED BY SUCH GUARANTOR, OR ANY OTHER STATEMENTS OR ACTIONS OF LENDER. EACH
GUARANTOR ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR LENDER TO
ENTER INTO THE LOAN AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS IT EXECUTES,
AND THAT THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF THE OTHER LOAN DOCUMENTS
TO WHICH
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SUCH GUARANTOR IS A PARTY AS IF FULLY INCORPORATED THEREIN; AND EACH GUARANTOR,
AND LENDER HEREBY AGREES AND CONSENTS THAT ANY PARTY TO THIS GUARANTY AND
LENDER- MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE GUARANTORS HERETO AND LENDER TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
5.22 Confession of Judgment. Guarantor hereby authorizes any
attorney-at-law to appear in any court of record in the State of Ohio or in any
other state or territory of the United States at any time after the Obligations
becomes due, whether by acceleration or otherwise, to waive the issuing and
service of process, and to confess judgment against Guarantor in favor of Lender
for the amount due together with interest, expenses, the costs of suit and
reasonable counsel fees, and thereupon to release and waive all errors, rights
of appeal and stays of execution. Such authority shall not be exhausted by one
exercise, but judgment may be confessed from time to time as any sums and/or
costs, expenses or reasonable counsel fees shall be due, by filing an original
or a photostatic copy of this Guaranty. Guarantor waives any right to move any
court for an order having any attorney or firm representing Lender removed or
disqualified as counsel for Lender as a result of such attorney or firm
confessing judgment against Guarantor in accordance with this Section. Guarantor
hereby expressly waives any conflicts of interest that may now or hereafter
exist as a result of any attorney representing Lender confessing judgment
against Guarantor and expressly consents to any attorney representing Lender or
to any other attorney to confess judgment against Guarantor in accordance with
this Section. Guarantor hereby further consents and agrees that Lender may pay
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any attorney confessing judgment against Guarantor in accordance with this
Section, a reasonable fee for confessing judgment and that any fees so paid may
be included in the amount of such judgment.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
executed by their duly authorized representatives as of the date first above
written.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
GUARANTORS: POLARIS MALL, LLC
By: Glimcher Properties Limited Partnership,
its Manager, a Delaware limited partnership
By: Glimcher Properties Corporation, its sole
general partner, a Delaware corporation
By:___________________________________________
Xxxxxx X. Xxxxxxx, Executive Vice President
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