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EXHIBIT 10.4
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GUARANTOR: Glimcher Properties DEBTOR: Glimcher Properties
Corporation Limited Partnership
ADDRESS: 00 Xxxxx Xxxxx Xxxxxx ADDRESS: 00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 Xxxxxxxx, Xxxx 00000
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GUARANTY
For the purpose of inducing (NAME OF BANK) (hereinafter referred to as "Bank")
to lend money or advance credit to, or renew, extend or forbear from demanding
immediate payment of the Obligations of Glimcher Properties Limited Partnership
(hereinafter referred to as "Debtor"), the undersigned (hereinafter referred to
as "Guarantors" whether one or more), jointly and severally if more than one
(which joint and several liability shall exist regardless of whether additional
Guarantors have evidenced or may in the future evidence their undertaking by
executing this Guaranty, by co-signing one or more promissory notes or other
instruments of indebtedness, by executing one or more separate agreements of
guaranty of any or all of the Obligations referred to herein or otherwise),
hereby unconditionally guarantee the prompt and full payment to Bank when due,
whether by acceleration or otherwise, of all Obligations of any kind for which
Debtor is now or may hereafter become liable to Bank in any manner.
The word "Obligations" is used in its most comprehensive sense and includes,
without limitation, all indebtedness, debts and liabilities (including
principal, interest, late charges, collection costs, attorneys' fees and the
like) of Debtor to Bank, either created by Debtor alone or together with another
or others, primary or secondary, secured or unsecured, absolute or contingent,
liquidated or unliquidated, direct or indirect, whether evidenced by note,
draft, application for letter of credit, agreements of guaranty or otherwise,
and any and all renewals of, extensions of or substitutes therefor, to the
extent that such Obligations arise from or are connected with indebtedness owed
by Debtor to Bank by reason of credit extended or to be extended to Debtor in
the principal amount of $___________, pursuant to a promissory note and dated as
of or May 15, 1997, and a Second Amended and Restated Loan Agreement dated as of
May 15, 1997.
Guarantors, and each of them, hereby promise that if one or more of the
Obligations are not paid promptly when due, they, and each of them, will, upon
request of Bank, pay the Obligations to Bank, irrespective of any action or lack
of action on Bank's part in connection with the acquisition, perfection,
possession, enforcement or disposition of any or all Obligations or any or all
security therefor or otherwise, and further irrespective of any invalidity in
any or all Obligations, the unenforceability thereof or the insufficiency,
invalidity or unenforceability of any security therefor.
Guarantors waive notice of any and all acceptances of this Guaranty. This
Guaranty is a continuing guaranty, and, in addition to covering all present
Obligations of Debtor to Bank, will extend to all future Obligations of Debtor
to Bank, and this whether such Obligations are reduced or entirely extinguished
and thereafter increased or reincurred. This Guaranty is made and will remain in
effect as to any and all Obligations of Debtor incurred or arising prior to
receipt by the loan officer of Bank who is handling Debtor's Obligations of
written notice of termination of this Guaranty. No such
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written notice or other revocation will in any way affect the duties of
Guarantors to Bank with respect to either Obligations incurred by Debtor or
instruments executed by Debtor prior to the receipt of such notice by such loan
officer of Bank. In addition, no such written notice or other revocation will in
any way affect the liabilities of Guarantors to Bank with respect to revolving
Obligations of Debtor on which loans or advances are made, whether such loans or
advances are made prior or subsequent to such notice. Revocation by any one or
more of Guarantors will not affect the duties of the remaining Guarantor or
Guarantors.
Bank's rights hereunder shall be reinstated and revived, and this Guaranty shall
be fully enforceable, with respect to any amount at any time paid on account of
the Obligations which thereafter shall be required to be restored or returned by
Bank as a result of the bankruptcy, insolvency or reorganization of Debtor,
Guarantors, or any other person, or as a result of any other fact or
circumstance, all as though such amount had not been paid.
Guarantors waive any claims or other rights which they might now have or
hereafter acquire against Debtor or any other person, guarantor, maker or
endorser primarily or contingently liable on the Obligations that arise from the
existence or performance of Guarantors' obligations under this Guaranty or under
any instrument or agreement with respect to any property constituting collateral
or security herefor, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, or any right to
participate in any claim or remedy of Bank against Debtor or any collateral
security therefor which Bank now has or hereafter acquires; whether such claim,
remedy or right arises in equity, under contract or statute, at common law, or
otherwise.
Guarantors waive presentment, demand, protest, notice of protest and notice of
dishonor or other nonpayment of any and all Obligations and further waive notice
of sale or other disposition of any collateral or security now held or hereafter
acquired by Bank. Guarantors agree that no extension of time, whether one or
more, nor any other indulgence granted by Bank to Debtor, or to Guarantors, or
any of them, and no omission or delay on Bank's part in exercising any right
against, or in taking any action to collect from or pursue Bank's remedies
against Debtor or Guarantors, or any of them, will release, discharge or modify
the duties of Guarantors. Guarantors agree that Bank may, without notice to or
further consent from Guarantors, release or modify any collateral, security or
other guaranties now held or hereafter acquired, or substitute other collateral,
security or other guaranties, and no such action will release, discharge or
modify the duties of Guarantors hereunder. Guarantors further agree that Bank
will not be required to pursue or exhaust any of its rights or remedies against
Debtor or Guarantors, or any of them, with respect to payment of any of the
Obligations, or to pursue, exhaust or preserve any of its rights or remedies
with respect to any collateral, security or other guaranties given to secure the
Obligations, or to take any action of any sort, prior to demanding payment from
or pursuing its remedies against Guarantors.
Guarantors agree that any legal suit, action or proceeding arising out of or
relating to this Guaranty may be instituted in a state or federal court of
appropriate subject matter jurisdiction in the State of Ohio; waive any
objection which they may have now or hereafter to the laying of venue of any
such suit, action or proceeding; and irrevocably submit to the jurisdiction of
any such court in any such suit, action or proceeding.
WAIVER OF RIGHT TO TRIAL BY JURY
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GUARANTORS ACKNOWLEDGE THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE BETWEEN
GUARANTORS AND BANK, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS
GUARANTY ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE FOR TRIAL BY JURY.
ACCORDINGLY, GUARANTORS HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY AS TO ANY AND
ALL DISPUTES THAT MAY ARISE RELATING TO THIS GUARANTY OR TO ANY OF THE OTHER
INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
If any Obligation of Debtor is assigned by Bank, this Guaranty will inure to the
benefit of Bank's assignee, and to the benefit of any subsequent assignee, to
the extent of the assignment or assignments, provided that no assignment will
operate to relieve Guarantors, or any of them, from any
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duty to Bank hereunder with respect to any unassigned Obligation. In the event
that any one or more of the provisions contained in this Guaranty or any
application thereof shall be determined to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein and any other applications thereof shall not in any
way be affected or impaired thereby. This Guaranty shall be construed in
accordance with the law of the State of Ohio.
Executed and delivered at Columbus, Ohio, this 15th day of May, 1997.
GUARANTOR:
GLIMCHER PROPERTIES CORPORATION
By:
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Its:
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