EXHIBIT 10.25
COMPLETION AND PAYMENT GUARANTY
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THIS COMPLETION AND PAYMENT GUARANTY (as the same may from time to time
hereafter be modified, supplemented or amended, the "Guaranty") is made as of
November 30, 2007 by GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership ("Guarantor"), in favor of KEYBANK NATIONAL ASSOCIATION, a national
banking association, having a principal place of business and post office
address at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, in its capacity as
Administrative Agent (the "Administrative Agent") on behalf of and for the
benefit of the Lenders (as such term is defined in the Loan Agreement), together
with each of their respective successors and assigns.
RECITALS:
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A. The Lenders have agreed to make a construction, acquisition and interim
loan (the "Loan") in the original principal sum of Two Hundred Twenty Million
and No/100 Dollars ($220,000,000.00) (the "Loan Amount") to KIERLAND CROSSING,
LLC, a Delaware limited liability company ("Borrower"). The Loan is evidenced by
one or more Notes of even date herewith made by Borrower to the order of Lenders
in the original principal sum of Two Hundred Twenty Million and No/100 Dollars
($220,000,000.00) (as the same may from time to time hereafter be modified,
amended, supplemented, extended or consolidated in writing, and any note(s)
issued in exchange therefor or replacement thereof, collectively, the "Notes")
or so much thereof as shall be advanced from time to time under the terms of the
Loan Agreement, as that term is hereinafter defined. The Notes bear interest at
the rate and are payable in the manner provided therein.
B. The Loan is secured by a Leasehold Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing of even date herewith (the "Deed of
Trust") on Borrower's leasehold interest in certain real property located in
Maricopa County, Arizona, together with all existing improvements constructed
thereon, said property being more particularly described in said Deed of Trust
(the "Premises"), and an Assignment of Leases and Rents of even date herewith
(the "Assignment") (the Notes, this Guaranty, that certain Construction,
Acquisition and Interim Loan Agreement of even date herewith between Borrower,
Administrative Agent and Lenders (the "Loan Agreement"), the Deed of Trust, the
Assignment and all other instruments or agreements by which the Loan is secured
or evidenced are hereinafter collectively referred to as the "Loan Documents").
Capitalized terms used herein and not otherwise defined shall have the meanings
given to them in the Loan Agreement.
C. It is a condition of Lenders' agreement to make the Loan that Guarantor
enter into this Guaranty.
D. Guarantor will derive material financial benefit from the Loan evidenced
and secured by the Notes, the Deed of Trust and the other Loan Documents.
E. Lenders have relied on the statements and agreements contained herein in
agreeing to make the Loan. The execution and delivery of this Guaranty by
Guarantor is a condition precedent to the making of the Loan by Lenders.
NOW, THEREFORE, in order to induce the Lenders to make the Loan to Borrower
and to accept the Guaranty from Guarantor, Guarantor intending to be legally
bound, hereby makes the following representations and warranties to the
Administrative Agent, on behalf of the Lenders, and hereby covenants and agrees
with Administrative Agent, in its capacity as agent for the Lenders, as follows:
1. Guarantor, absolutely, unconditionally, and irrevocably guarantees:
(a) the full, complete and punctual observance, performance, payment and
satisfaction of all of the obligations, duties, covenants and
agreements of Borrower under the Loan Agreement and the other Loan
Documents with respect to the Construction and the completion of the
Improvements free of any claim for mechanics', materialmen's or any
other liens, to the extent provided for therein, and in accordance
with (1) all Laws, (2) the Plans and Specifications and (3) the time
periods and other requirements set forth in the Loan Documents,
including, without limitation, the following:
(1) To perform, complete and pay for (or cause to be performed,
completed and paid for) the Construction and to pay all costs of
said Construction (including any and all cost overruns) and all
other costs associated with the Project (including, without
limitation, the costs of any architects' and engineers' fees)
through final completion, if Borrower shall fail to perform,
complete or pay for such work, including any sums expended in
excess of the amount of indebtedness incurred by Borrower under
the Loan Agreement or with respect to the Loan, whether or not
the Construction is actually completed;
(2) If Administrative Agent, on behalf of the Lenders, exercises
its right under Section 16.2(a) of the Loan Agreement to take
possession of the Project and complete the Construction, to
reimburse Administrative Agent for all reasonable costs and
expenses incurred by Administrative Agent in excess of the
applicable Budget Line Items therefor (if any) in so taking
possession of the Project and completing the Construction in
accordance with the Plans and Specifications; and
(3) To pay the premiums for all policies of insurance required to
be furnished by Borrower pursuant to the Loan Agreement during
the Construction if such premiums are not paid by Borrower; and
(b) The full, complete and punctual observance, performance and
satisfaction of all of the obligations, duties, covenants and
agreements of Borrower under the Loan Documents with respect to the
Phase III Purchase Agreement and the purchase of the Phase III Retail
Unit; and
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(c) Borrower's obligation to keep the Loan In Balance (as more
particularly defined and described in Article 9 of the Loan Agreement)
and the full and prompt payment of all Deficiency Deposits.
All obligations described in subsections (a), (b) and (c) of this Section 1
are referred to herein as the "Guaranteed Obligations."
2. In the event of any default by Borrower in performance of the Guaranteed
Obligations and the expiration of any applicable cure or grace period,
Guarantor agrees, within thirty (30) days after written demand by
Administrative Agent (which demand may be made concurrently with notice to
Borrower that Borrower is in default of its obligations), to perform all
the Guaranteed Obligations. Administrative Agent, on behalf of the Lenders,
shall have the right, at its option, either before, during or after
commencing foreclosure or sale proceedings, as the case may be, and before,
during or after pursuing any other right or remedy against Borrower or
Guarantor, to perform any and all of the Guaranteed Obligations by or
through any agent, contractor or subcontractor of its selection, all as
Administrative Agent in its sole discretion deems proper, and Guarantor
shall indemnify and hold Administrative Agent and Lenders free and harmless
from and against any and all loss, damage, cost, expense, injury, or
liability that Administrative Agent or Lenders may suffer or incur in
connection with the exercise of their respective rights under this Guaranty
or the performance of the Guaranteed Obligations except to the extent such
liability arises from the negligence or willful misconduct of
Administrative Agent or any such Lender. Furthermore, neither
Administrative Agent nor any Lender shall have any obligation to protect or
insure any collateral for the Loan, nor shall Administrative Agent, on
behalf of Lenders, have any obligation to perfect its security interest in
any collateral for the Loan.
During the course of any construction undertaken by Administrative
Agent or Lenders or any other party on behalf of Lenders in accordance with
the terms of this Guaranty, upon the occurrence and during the continuation
of an Event of Default, Guarantor shall pay within thirty (30) days of
written demand any amounts due to contractors, subcontractors, and material
suppliers and for permits and licenses necessary or desirable in connection
therewith. Guarantor's obligations in connection with such work shall not
be affected by any errors or omissions of the General Contractor,
Architect, Lenders' Consultant or any subcontractor or agent or employee of
any of the foregoing in the design, supervision, and performance of the
work; it being understood that such risk is assumed by Guarantor. Neither
the completion of the Construction nor failure of said party to complete
the Construction shall relieve Guarantor of any liabilities hereunder;
rather, such liability shall be continuing and may be enforced by
Administrative Agent, on behalf of Lenders.
All of the remedies set forth herein and/or provided for in any of the
Loan Documents or at law or equity shall be available to Administrative
Agent, on behalf of Lenders, and the choice by Administrative Agent of one
such alternative over another shall not be subject to question or challenge
by Guarantor or any other person, nor shall any such choice be asserted as
a defense, setoff, or failure to mitigate damages in any action,
proceeding, or counteraction by Administrative Agent, on behalf of Lenders,
to recover or seeking any other remedy under this Guaranty, nor shall such
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choice preclude Administrative Agent from concurrently or subsequently
electing to exercise a different remedy. The parties have agreed to the
alternative remedies hereinabove specified in part because they recognize
that the choice of remedies in the event of a failure hereunder will
necessarily be and should properly be a matter of good faith business
judgment, which the passage of time and events may or may not prove to have
been the best choice to maximize recovery by Administrative Agent, on
behalf of Lenders, at the lowest cost to Borrower and/or Guarantor. It is
the intention of the parties that such good faith choice by Administrative
Agent be given conclusive effect regardless of such subsequent
developments.
3. Guarantor absolutely, irrevocably and unconditionally waives notice of
acceptance of this Guaranty and notice of any payment, performance,
liability or obligation to which it may apply, and waives presentment,
demand of payment (subject to Section 2 hereof), protest, notice of
dishonor or nonpayment of such liabilities under this Guaranty or any of
the Loan Documents creating the Guaranteed Obligations and any suit or
taking other action by the Administrative Agent, on behalf of Lenders,
against, and any other notice to, any party liable thereon or any property
which may be security therefor.
4. The Administrative Agent, on behalf of Lenders, may at any time and from
time to time without the consent of, or notice to, Guarantor, without
incurring any responsibility to Guarantor and without impairing or
releasing any of the obligations of Guarantor hereunder, upon or without
any terms or conditions and in whole or in part:
(a) renew, alter or change the manner, time, place or terms of payment or
performance of any of the Guaranteed Obligations, or any liability
incurred directly or indirectly in respect thereof, whereupon the
guaranty herein made shall apply to the Guaranteed Obligations as so
changed, extended, renewed or altered;
(b) sell, exchange, release, surrender, and in any manner and in any order
realize upon or otherwise deal with any property at any time directly
and absolutely assigned or pledged or mortgaged to secure the
Guaranteed Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof;
(c) exercise or refrain from exercising any rights against Borrower or any
other person (including any Guarantor) or otherwise act or refrain
from acting with regard to the Loan Documents, Guaranteed Obligations
or this Guaranty;
(d) settle or compromise any of the Guaranteed Obligations, any security
therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or
subordinate the payment of all or any part thereof to the payment of
any liability of Borrower (whether or not then due) to creditors of
Borrower other than the Administrative Agent, acting on behalf of
Lenders;
(e) apply any sums in whatever manner paid or realized to any liability or
liabilities of Borrower to the Administrative Agent or the Lenders
regardless of what liability or liabilities of Borrower remain unpaid;
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(f) consent to or waive any breach of or any act, omission or default
under the Loan Documents or otherwise amend, modify or supplement any
of such instruments or agreements; and/or
(g) sell, convey or assign, whether into a securitized transaction or
otherwise, all or any part of Administrative Agent's and/or Lenders'
interest in this Guaranty and the Loan Documents as permitted under
the Loan Agreement.
5. No invalidity, irregularity or unenforceability of all or any part of the
Loan Documents, the Guaranteed Obligations or this Guaranty, or of any
security therefor, shall affect, impair or constitute a defense to this
Guaranty. This Guaranty is a direct and primary obligation of Guarantor,
and Guarantor's obligations hereunder are not as a surety. This is an
absolute, present and continuing guaranty of performance and completion and
not of collection.
6. (a) Notwithstanding any payment or payments made by Guarantor hereunder,
Guarantor will not assert or exercise any right of the Administrative
Agent or the Lenders or of such Guarantor against Borrower to recover
the amount of any payment made by such Guarantor to Administrative
Agent or the Lenders by way of subrogation, reimbursement,
contribution, indemnity or otherwise arising by contract or operation
of law, and Guarantor shall not have any right of recourse to or any
claim against assets or property of Borrower, whether or not the
obligations of Borrower have been satisfied, all of such rights being
herein expressly waived by Guarantor. The provisions of this paragraph
shall survive the termination of this Guaranty, and any satisfaction
and discharge of Borrower by virtue of any payment, court order or any
applicable law.
(a) In the event that Guarantor shall advance or become obligated to pay
any sums with respect to any obligation hereby guaranteed or in the
event that for any reason whatsoever the Borrower or any subsequent
owner of the collateral securing the Loan or the Guaranty is now, or
shall hereafter become, indebted to Guarantor, Guarantor agrees that
the amount of such sums and of such Indebtedness together with all
interest thereon, shall at all times be subordinate as to the lien,
time of payment and in all other respects, to all sums, including
principal, interest and other Indebtedness, at any time owing to the
Lenders under any of the Loan Documents. Nothing herein contained is
intended or shall be construed to give to Guarantor any right to
participate in any way in the right, title or interest of the
Administrative Agent, acting on behalf of the Lenders, in or to the
collateral securing the Loan, notwithstanding any payments made by
Guarantor under this Guaranty, all such rights of participation being
hereby expressly waived and released.
7. Guarantor agrees that to the extent that Borrower makes a payment or
payments to Administrative Agent, on behalf of the Lenders, which payment
or payments or any part thereof are subsequently invalidated, declared to
be fraudulent or preferential, set aside or required, for any of the
foregoing reasons or for any other reasons, to be repaid or paid over to a
custodian, trustee, receiver or any other party under any bankruptcy act,
state or federal law, common law or equitable cause, then to the extent of
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such payment or repayment, the obligation or part thereof intended to be
satisfied shall be revived and continued in full force and effect as if
such payment had not been made.
8. Guarantor makes the following representations and warranties which shall
survive the execution and delivery of this Guaranty:
(a) Guarantor is and, until the Guaranteed Obligations are fully performed
and paid in full, will continue to (i) be a duly organized and validly
existing entity in good standing under the laws of the state of its
formation, (ii) be duly qualified as a foreign entity in each
jurisdiction in which the nature of its business makes such
qualification necessary or desirable, (iii) have the requisite power
and authority to carry on its business as now being conducted, (iv)
have the requisite power to execute, deliver and perform its
obligations under this Guaranty, and (v) comply with the provisions of
all of its organizational documents, and the Laws of the state of its
formation.
(b) The execution, delivery and performance of this Guaranty (i) are
within the applicable powers of Guarantor; (ii) have been authorized
by all requisite action; (iii) have received all necessary approvals
and consents, corporate, governmental or otherwise; (iv) does not and
will not violate, conflict with, result in a breach of or constitute
(with notice or lapse of time, or both) a default under any provision
of law, any order or judgment of any court or governmental authority,
the articles of incorporation, by-laws, partnership, operating or
trust agreement, or other governing instrument of Guarantor, or any
indenture, agreement or other instrument to which Guarantor is a party
or by which Guarantor or any of Guarantor's assets is or may be bound
or affected; (v) does not and will not result in the creation or
imposition of any lien, charge or encumbrance whatsoever upon any of
Guarantor's assets; and (vi) does not and will not require any
authorization or license from, or any filing with, any governmental
authority or other body.
(c) This Guaranty constitutes the legal, valid and binding obligations of
Guarantor, enforceable against Guarantor in accordance with its terms,
except as may be limited by (i) bankruptcy, insolvency, reorganization
or other similar laws affecting the rights of creditors generally, and
(ii) general principles of equity (regardless of whether considered in
a proceeding in equity or at law).
9. Guarantor is related and/or affiliated with Borrower, has personal
knowledge of and is familiar with Borrower's business affairs, books and
records and has the ability to influence Borrower's financial decisions.
10. Nothing herein contained shall in any manner affect the lien or priority of
the Deed of Trust, and upon the occurrence and during the continuation of
an Event of Default, the Administrative Agent, on behalf of the Lenders,
may invoke any remedies it may have under this Guaranty or any of the other
Loan Documents, either concurrently or successively and the exercise of any
one or more of such remedies shall not be deemed an exhaustion of such
remedy or remedies or a waiver of any other remedy or remedies and shall
not be deemed an election of remedies. Guarantor hereby specifically waives
any defense to its performance under this Guaranty based upon an election
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of remedies by Administrative Agent, including but not limited to an
election to foreclose by nonjudicial sale under any mortgage or security
agreement and pursue any other remedy which destroys, lessens or otherwise
affects such Guarantor's subrogation rights and/or its rights to
reimbursement from or to proceed against Borrower or any other person, when
resulting from the judicial or nonjudicial foreclosure (under any mortgage
or security agreement) or the selling or otherwise disposing of or
collecting or applying any property, real or personal, securing the Notes,
the obligations of Guarantor under this Guaranty, or otherwise. The
exercise by the Administrative Agent, on behalf of the Lenders, of any such
remedies shall not release or discharge Guarantor from its obligations
hereunder unless and until the full amount of the Indebtedness evidenced by
the Notes and secured as aforesaid has been fully paid and satisfied, and
any such release or discharge shall be subject to the provisions of Section
11 hereof.
11. This Guaranty shall remain in full force and effect until all obligations
of the Borrower and Guarantor under the Loan Documents have been satisfied
in full and are no longer subject to disgorgement under any applicable
state or federal creditor rights or bankruptcy laws. No delay on the part
of the Administrative Agent in exercising any options, powers or rights, or
the partial or single exercise thereof, shall constitute a waiver thereof.
No waiver of any rights hereunder, and no modification or amendment of this
Guaranty, shall be deemed to be made by the Administrative Agent unless the
same shall be in writing, duly signed on behalf of the Administrative
Agent, and each such waiver (if any) shall apply only with respect to the
specific instance involved and shall in no way impair the rights of the
Administrative Agent or the obligations of Guarantor to the Administrative
Agent, on behalf of the Lenders, in any other respect at any other time.
This Guaranty and the rights and obligations of the Administrative Agent
and of Guarantor hereunder shall be governed and construed in accordance
with the laws of the State of Ohio, without regard to its conflicts of law
principles and this Guaranty is binding upon Guarantor and Guarantor's
permitted successors or assigns, and shall inure to the benefit of the
Administrative Agent, on behalf of the Lenders, and its successors or
assigns; provided, however, that Guarantor may not, without the prior
written consent of Administrative Agent, assign any of Guarantor's rights,
powers, duties or obligations hereunder.
12. Guarantor acknowledges that copies of the Loan Documents have been made
available to Guarantor and that Guarantor is familiar with their contents.
Guarantor affirmatively agrees that upon any Permitted Transfer effected in
accordance with the provisions of the Loan Documents, or any transfer by
any Lenders of all or any portion of its interest in the Loan, it shall not
be necessary for Guarantor to reaffirm its continuing obligations under
this Guaranty, but Guarantor will do so upon request by Administrative
Agent.
13. GUARANTOR AND ADMINISTRATIVE AGENT EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY
ACTIONS BROUGHT BY GUARANTOR OR ADMINISTRATIVE AGENT IN CONNECTION WITH
THIS GUARANTY, ANY OF THE LOAN DOCUMENTS, THE INDEBTEDNESS GUARANTEED
HEREBY, OR ANY OTHER STATEMENTS OR ACTIONS OF ADMINISTRATIVE AGENT.
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14. Each notice, consent, request or other communication under this Guaranty
(each a "Notice") which any party hereto may desire or be required to give
to the other shall be deemed to be adequate and sufficient notice if given
in writing and service is made by either (i) registered or certified mail,
postage prepaid, in which case such notice shall be deemed to have been
received three (3) business days following deposit to U.S. mail; or (ii)
nationally recognized overnight air courier, next day delivery, prepaid, in
which case such notice shall be deemed to have been received one (1)
business day following delivery to such nationally recognized overnight air
courier. All Notices shall be addressed to Guarantor at the address given
on the signature page hereof, or to Administrative Agent at the then
current address set forth in Section 18.5 of the Loan Agreement, or to such
other place as any party may by notice in writing to the other parties
designate as a place for service of notice.
15. If: (i) this Guaranty, a Note, or any of the Loan Documents are placed in
the hands of an attorney for collection or is collected through any legal
proceeding; (ii) an attorney is retained to represent the Administrative
Agent or any Lender in any bankruptcy, reorganization, receivership, or
other proceedings affecting creditors' rights and involving a claim under
this Guaranty, a Note, the Loan Agreement, or any other Loan Document;
(iii) an attorney is retained to enforce any of the other Loan Documents or
to provide advice or other representation with respect to the Loan
Documents in connection with an enforcement action or potential enforcement
action; or (iv) an attorney is retained to represent the Administrative
Agent or any Lender in any other legal proceedings whatsoever in connection
with this Guaranty, a Note, the Loan Agreement, any of the Loan Documents,
or any property securing the Obligations arising under the Notes, the Loan
Agreement and the other Loan Documents (other than any action or proceeding
brought by any Lender or participant against the Administrative Agent
alleging a breach by the Administrative Agent of its duties under the Loan
Documents), then Guarantor shall pay to the Administrative Agent or such
Lender within thirty (30) days after written demand all reasonable
attorney's fees, costs and expenses, including, without limitation, court
costs, filing fees and all other costs and expenses incurred in connection
therewith (all of which are referred to herein as "Enforcement Costs"), in
addition to all other amounts due hereunder.
16. This Guaranty may not be modified except by a written instrument executed
by Administrative Agent and Guarantor.
(Signature on next page)
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed
and delivered as of the date first set forth above.
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 and
Chief Investment Officer
c/o Glimcher Properties Corporation
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
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