EXHIBIT 10.24
SUBSIDIARY GUARANTY
This Guaranty is made as of October 17, 2003 by the parties identified
in the signature pages thereto, and any Joinder to Guaranty hereafter delivered
(collectively, the "Subsidiary Guarantors"), to and for the benefit of KeyBank
National Association, individually ("KeyBank") and as administrative agent
("Administrative Agent") for itself and the lenders under the Credit Agreement
(as defined below) and their respective successors and assigns (collectively,
the "Lenders").
RECITALS
X. Xxxxxxxx Properties Limited Partnership, a limited partnership
organized under the laws of the State of Delaware ("Borrower"), and Subsidiary
Guarantors have requested that the Lenders make a revolving credit facility
available to Borrower in an aggregate principal amount of $150,000,000 (the
"Facility").
B. The Lenders have agreed to make available the Facility to
Borrower pursuant to the terms and conditions set forth in an Credit Agreement
of even date herewith among Borrower, KeyBank, individually, and as
Administrative Agent, and the Lenders named therein (as amended, modified or
restated from time to time, the "Credit Agreement"). All capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to such terms
in the Credit Agreement.
C. Borrower has executed and delivered or will execute and
deliver to the Lenders promissory notes in the principal amount of each Lender's
Commitment and promissory notes in the principal amount, if any, of each
Lender's Loan as evidence of Borrower's indebtedness to each such Lender with
respect to the Facility (the promissory notes described above, together with any
amendments or allonges thereto, or restatements, replacements or renewals
thereof, and/or new promissory notes to new Lenders under the Credit Agreement,
are collectively referred to herein as the "Notes").
D. Subsidiary Guarantors are subsidiaries of Borrower. Subsidiary
Guarantors acknowledge that the extension of credit by the Administrative Agent
and the Lenders to Borrower pursuant to the Credit Agreement will benefit
Subsidiary Guarantors by making funds available to Subsidiary Guarantors through
Borrower and by enhancing the financial strength of the consolidated group of
which Subsidiary Guarantors and Borrower are members. The execution and delivery
of this Guaranty by Subsidiary Guarantors are conditions precedent to the
performance by the Lenders of their obligations under the Credit Agreement.
AGREEMENTS
NOW, THEREFORE, Subsidiary Guarantors, in consideration of the matters
described in the foregoing Recitals, which Recitals are incorporated herein and
made a part hereof, and for other good and valuable consideration, hereby agree
as follows:
1. Subsidiary Guarantors absolutely, unconditionally, and
irrevocably guaranty to each of the Lenders:
(a) the full and prompt payment of the principal of and
interest on the Notes when due, whether at stated maturity, upon
acceleration or otherwise, and at all times
thereafter, and the prompt payment of all sums which may now be or may
hereafter become due and owing under the Notes, the Credit Agreement,
and the other Loan Documents;
(b) the payment of all Enforcement Costs (as hereinafter
defined in Paragraph 7 hereof); and
(c) the full, complete, and punctual observance,
performance, and satisfaction of all of the obligations, duties,
covenants, and agreements of Borrower under the Credit Agreement and
the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations." Subsidiary Guarantors
and Lenders agree that Subsidiary Guarantors' obligations hereunder shall not
exceed the maximum amount of the Facility Indebtedness not subject to avoidance
under Title 11 of the United States Code, as same may be amended from time to
time, or any applicable state law (the "Bankruptcy Code"). To that end, to the
extent such obligations would otherwise be subject to avoidance under the
Bankruptcy Code if Subsidiary Guarantors are not deemed to have received
valuable consideration, fair value or reasonably equivalent value for its
obligations hereunder, each Subsidiary Guarantor's obligations hereunder shall
be reduced to that amount which, after giving effect thereto, would not render
such Subsidiary Guarantor insolvent, or leave such Subsidiary Guarantor with an
unreasonably small capital to conduct its business, or cause such Subsidiary
Guarantor to have incurred debts (or intended to have incurred debts) beyond its
ability to pay such debts as they mature, as such terms are determined, and at
the time such obligations are deemed to have been incurred, under the Bankruptcy
Code. In the event a Subsidiary Guarantor shall make any payment or payments
under this Guaranty each other guarantor of the Facility Indebtedness shall
contribute to such Subsidiary Guarantor an amount equal to such non-paying
Subsidiary Guarantor's pro rata share (based on their respective maximum
liabilities hereunder and under such other guaranty) of such payment or payments
made by such Subsidiary Guarantor, provided that such contribution right shall
be subordinate and junior in right of payment in full of all the Facility
Indebtedness to Lenders.
2. In the event of any default by Borrower in making payment of
the Facility Indebtedness, or in performance of the Obligations, as aforesaid,
in each case beyond the expiration of any applicable grace period, Subsidiary
Guarantors agree, on demand by the Administrative Agent or the holder of a Note,
to pay all the Facility Indebtedness and to perform all the Obligations as are
then or thereafter become due and owing or are to be performed under the terms
of the Notes, the Credit Agreement, and the other Loan Documents.
3. Subsidiary Guarantors do hereby waive (i) notice of acceptance
of this Guaranty by the Administrative Agent and the Lenders and any and all
notices and demands of every kind which may be required to be given by any
statute, rule or law, (ii) any defense, right of set-off or other claim which
Subsidiary Guarantors may have against Borrower or which Subsidiary Guarantors
or Borrower may have against the Administrative Agent or the Lenders or the
holder of a Note, (iii) presentment for payment, demand for payment (other than
as provided for in Paragraph 2 above), notice of nonpayment (other than as
provided for in Paragraph 2 above) or dishonor, protest and notice of protest,
diligence in collection and any and all formalities which otherwise might be
legally required to charge Subsidiary Guarantors with liability, (iv) any
failure by the Administrative Agent and the Lenders to inform Subsidiary
Guarantors of any facts the Administrative Agent and the Lenders may now or
hereafter know about Borrower, the Facility, or the transactions
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contemplated by the Credit Agreement, it being understood and agreed that the
Administrative Agent and the Lenders have no duty so to inform and that
Subsidiary Guarantors are fully responsible for being and remaining informed by
Borrower of all circumstances bearing on the existence or creation, or the risk
of nonpayment of the Facility Indebtedness or the risk of nonperformance of the
Obligations, and (v) any and all right to cause a marshalling of assets of
Borrower or any other action by any court or governmental body with respect
thereto, or to cause the Administrative Agent and the Lenders to proceed against
any other security given to a Lender in connection with the Facility
Indebtedness or the Obligations. Credit may be granted or continued from time to
time by the Lenders to Borrower without notice to or authorization from
Subsidiary Guarantors, regardless of the financial or other condition of
Borrower at the time of any such grant or continuation. The Administrative Agent
and the Lenders shall have no obligation to disclose or discuss with Subsidiary
Guarantors the Lenders' assessment of the financial condition of Borrower.
Subsidiary Guarantors acknowledge that no representations of any kind whatsoever
have been made by the Administrative Agent and the Lenders to Subsidiary
Guarantors. No modification or waiver of any of the provisions of this Guaranty
shall be binding upon the Administrative Agent and the Lenders except as
expressly set forth in a writing duly signed and delivered on behalf of the
Administrative Agent and the Lenders. Subsidiary Guarantors further agree that
any exculpatory language contained in the Credit Agreement, the Notes, and the
other Loan Documents shall in no event apply to this Guaranty, and will not
prevent the Administrative Agent and the Lenders from proceeding against
Subsidiary Guarantors to enforce this Guaranty.
4. Subsidiary Guarantors further agree that Subsidiary
Guarantors' liability as guarantor shall in no way be impaired by any renewals
or extensions which may be made from time to time, with or without the knowledge
or consent of Subsidiary Guarantors of the time for payment of interest or
principal under a Note or by any forbearance or delay in collecting interest or
principal under a Note, or by any waiver by the Administrative Agent and the
Lenders under the Credit Agreement, or any other Loan Documents, or by the
Administrative Agent or the Lenders' failure or election not to pursue any other
remedies they may have against Borrower, or by any change or modification in a
Note, the Credit Agreement, or any other Loan Documents, or by the acceptance by
the Administrative Agent or the Lenders of any security or any increase,
substitution or change therein, or by the release by the Administrative Agent
and the Lenders of any security or any withdrawal thereof or decrease therein,
or by the application of payments received from any source to the payment of any
obligation other than the Facility Indebtedness, even though a Lender might
lawfully have elected to apply such payments to any part or all of the Facility
Indebtedness, it being the intent hereof that Subsidiary Guarantors shall remain
liable as principal for payment of the Facility Indebtedness and performance of
the Obligations until all indebtedness has been paid in full and the other
terms, covenants and conditions of the Credit Agreement, and other Loan
Documents and this Guaranty have been performed, notwithstanding any act or
thing which might otherwise operate as a legal or equitable discharge of a
surety. Subsidiary Guarantors further understand and agree that the
Administrative Agent and the Lenders may at any time enter into agreements with
Borrower to amend and modify a Note, the Credit Agreement or any of the other
Loan Documents, or any thereof, and may waive or release any provision or
provisions of a Note, the Credit Agreement, or any other Loan Document and, with
reference to such instruments, may make and enter into any such agreement or
agreements as the Administrative Agent, the Lenders and Borrower may deem proper
and desirable, without in any manner impairing this Guaranty or any of the
Administrative Agent and the Lenders' rights hereunder or any of Subsidiary
Guarantors' obligations hereunder.
5. This is an absolute, unconditional, complete, present and
continuing guaranty of payment and performance and not of collection. Subsidiary
Guarantors agree that their obligations
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hereunder shall be joint and several with any and all other guarantees given in
connection with the Facility from time to time. Subsidiary Guarantors agree that
this Guaranty may be enforced by the Administrative Agent and the Lenders
without the necessity at any time of resorting to or exhausting any security or
collateral, if any, given in connection herewith or with a Note, the Credit
Agreement, or any of the other Loan Documents or by or resorting to any other
guaranties, and Subsidiary Guarantors hereby waive the right to require the
Administrative Agent and the Lenders to join Borrower in any action brought
hereunder or to commence any action against or obtain any judgment against
Borrower or to pursue any other remedy or enforce any other right. Subsidiary
Guarantors further agree that nothing contained herein or otherwise shall
prevent the Administrative Agent and the Lenders from pursuing concurrently or
successively all rights and remedies available to them at law and/or in equity
or under a Note, the Credit Agreement or any other Loan Documents, and the
exercise of any of their rights or the completion of any of their remedies shall
not constitute a discharge of any of Subsidiary Guarantors' obligations
hereunder, it being the purpose and intent of Subsidiary Guarantors that the
obligations of such Subsidiary Guarantors hereunder shall be primary, absolute,
independent and unconditional under any and all circumstances whatsoever.
Neither Subsidiary Guarantors' obligations under this Guaranty nor any remedy
for the enforcement thereof shall be impaired, modified, changed or released in
any manner whatsoever by any impairment, modification, change, release or
limitation of the liability of Borrower under a Note, the Credit Agreement or
any other Loan Document or by reason of Borrower's bankruptcy or by reason of
any creditor or bankruptcy proceeding instituted by or against Borrower. This
Guaranty shall continue to be effective and be deemed to have continued in
existence or be reinstated (as the case may be) if at any time payment of all or
any part of any sum payable pursuant to a Note, the Credit Agreement or any
other Loan Document is rescinded or otherwise required to be returned by the
payee upon the insolvency, bankruptcy, or reorganization of the payor, all as
though such payment to such Lender had not been made, regardless of whether such
Lender contested the order requiring the return of such payment. The obligations
of Subsidiary Guarantors pursuant to the preceding sentence shall survive any
termination, cancellation, or release of this Guaranty.
6. This Guaranty shall be assignable by a Lender to any assignee
of all or a portion of such Lender's rights under the Loan Documents.
7. 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 Credit Agreement, or any 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 Credit Agreement, any of the Loan Documents, or any property subject thereto
(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 Subsidiary Guarantors shall pay to
the Administrative Agent or such Lender upon 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.
8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of
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law to be in violation of any applicable local, state or federal ordinance,
statute, law, administrative or judicial decision, or public policy, and if such
court should declare such portion, provision or provisions of this Guaranty to
be illegal, invalid, unlawful, void or unenforceable as written, then it is the
intent of all parties hereto that such portion, provision or provisions shall be
given force to the fullest possible extent that they are legal, valid and
enforceable, that the remainder of this Guaranty shall be construed as if such
illegal, invalid, unlawful, void or unenforceable portion, provision or
provisions were not contained therein, and that the rights, obligations and
interest of the Administrative Agent and the Lender or the holder of a Note
under the remainder of this Guaranty shall continue in full force and effect.
9. Any indebtedness of Borrower to Subsidiary Guarantors now or
hereafter existing is hereby subordinated to the Facility Indebtedness.
Subsidiary Guarantors will not seek, accept, or retain for Subsidiary
Guarantors' own account, any payment from Borrower on account of such
subordinated debt at any time when a Default or Event of Default exists under
the Credit Agreement or the Loan Documents, and any such payments to Subsidiary
Guarantors made while any Default or Event of Default then exists under the
Credit Agreement or the Loan Documents on account of such subordinated debt
shall be collected and received by Subsidiary Guarantors in trust for the
Lenders and shall be paid over to the Administrative Agent on behalf of the
Lenders on account of the Facility Indebtedness without impairing or releasing
the obligations of Subsidiary Guarantors hereunder.
10. Subsidiary Guarantors hereby subordinate to the Facility
Indebtedness any and all claims and rights, including, without limitation,
subrogation rights, contribution rights, reimbursement rights and set-off
rights, which Subsidiary Guarantors may have against Borrower arising from a
payment made by Subsidiary Guarantors under this Guaranty and agree that, until
the entire Facility Indebtedness is paid in full, not to assert or take
advantage of any subrogation rights of Subsidiary Guarantors or the Lenders or
any right of Subsidiary Guarantors or the Lenders to proceed against (i)
Borrower for reimbursement, or (ii) any other guarantor or any collateral
security or guaranty or right of offset held by the Lenders for the payment of
the Facility Indebtedness and performance of the Obligations, nor shall
Subsidiary Guarantors seek or be entitled to seek any contribution or
reimbursement from Borrower or any other guarantor in respect of payments made
by Subsidiary Guarantors hereunder. It is expressly understood that the
agreements of Subsidiary Guarantors set forth above constitute additional and
cumulative benefits given to the Lenders for their security and as an inducement
for their extension of credit to Borrower.
11. Any amounts received by a Lender from any source on account of
any indebtedness may be applied by such Lender toward the payment of such
indebtedness, and in such order of application, as a Lender may from time to
time elect.
12. Subsidiary Guarantors hereby submit to personal jurisdiction
in the State of Ohio for the enforcement of this Guaranty and waives any and all
personal rights to object to such jurisdiction for the purposes of litigation to
enforce this Guaranty. Subsidiary Guarantors hereby consent to the jurisdiction
of either the Cuyahoga County Common Pleas Court in Cleveland, Ohio or the
United States District Court in Cleveland, Ohio in any action, suit, or
proceeding which the Administrative Agent or a Lender may at any time wish to
file in connection with this Guaranty or any related matter. Subsidiary
Guarantors hereby agree that an action, suit, or proceeding to enforce this
Guaranty may be brought in any state or federal court in the State of Ohio and
hereby waives any objection which Subsidiary Guarantors may have to the laying
of the venue of any such action, suit, or proceeding in any such court;
provided, however, that the provisions of this Paragraph shall not be
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deemed to preclude the Administrative Agent or a Lender from filing any such
action, suit, or proceeding in any other appropriate forum.
13. All notices and other communications provided to any party
hereto under this Agreement or any other Loan Document shall be in writing or by
telex or by facsimile and addressed or delivered to such party at its address
set forth below or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted. Notice may be given as
follows:
To Subsidiary Guarantors:
Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Glimcher Properties Limited Partnership
000 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
To KeyBank as Administrative Agent and as a Lender:
KeyBank National Association
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Real Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, LLP
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0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to any other Lender, to its address set forth in the Credit
Agreement.
14. This Guaranty shall be binding upon the heirs, executors,
legal and personal representatives, successors and assigns of Subsidiary
Guarantors and shall inure to the benefit of the Administrative Agent and the
Lenders' successors and assigns.
15. This Guaranty shall be construed and enforced under the
internal laws of the State of Ohio.
16. SUBSIDIARY GUARANTORS, THE ADMINISTRATIVE AGENT AND THE
LENDERS, BY THEIR ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE
LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND AGREE THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
17. From time to time, additional parties may execute a joinder
substantially in the form of Exhibit A hereto, and thereby become a party to
this Guaranty. From and after delivery of such joinder, the Subsidiary
delivering such joinder shall be a Subsidiary Guarantor, and be bound by all of
the terms and provisions of this Guaranty.
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IN WITNESS WHEREOF, Subsidiary Guarantors have executed and delivered
this Guaranty as of the date first written above.
New Boston Mall, LLC,
a Delaware limited liability company
By: Glimcher Properties Limited
Partnership, a Delaware limited
partnership, sole member
By: Glimcher Properties
Corporation, a Delaware
corporation, Sole General
Partner
By: _______________________
Xxxxxx X. Xxxxxxx,
Executive Vice President
GLIMCHER NORTHTOWN VENTURE, LLC, a
Delaware limited liability company
By: Glimcher Properties Limited
Partnership, a Delaware limited
partnership, sole member
By: Glimcher Properties
Corporation, a Delaware
corporation, Sole General
Partner
By: _______________________
Xxxxxx X. Xxxxxxx,
Executive Vice President
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EXHIBIT A TO SUBSIDIARY GUARANTY
FORM OF JOINDER TO GUARANTY
THIS JOINDER is executed by __________, a __________ ("Subsidiary"),
which hereby agrees as follows:
1. All capitalized terms used herein and not defined in this
Joinder shall have the meanings provided in that certain Subsidiary Guaranty
(the "Guaranty") dated as of October ____, 2003 executed for the benefit of
KeyBank, NA, as agent for itself and certain other lenders, with respect to a
loan from the Lenders to Glimcher Properties Limited Partnership ("Borrower").
2. As required by the Credit Agreement described in the Guaranty,
Subsidiary is executing this Joinder to become a party to the Guaranty.
3. Each and every term, condition, representation, warranty, and
other provision of the Guaranty, by this reference, is incorporated herein as if
set forth herein in full and the undersigned agrees to fully and timely perform
each and every obligation of a Subsidiary Guarantor under such Guaranty.
[INSERT SIGNATURE BLOCK]
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