Exhibit 10.165
New York, New York
As of July 15, 2002
GUARANTY OF PAYMENT
THIS GUARANTY OF PAYMENT ("this GUARANTY") dated as of July
15, 2002, is made by GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership, GLIMCHER PROPERTIES CORPORATION, a Delaware corporation, and
GLIMCHER DEVELOPMENT CORPORATION, a Delaware corporation, each having an address
at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (collectively and individually,
as the context requires, "GUARANTOR" or "GUARANTORS") in favor of XXXXXX
BROTHERS BANK, FSB, a federal stock savings bank, having an address at 0000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (the "LENDER").
PRELIMINARY STATEMENT
A. Pursuant to that certain Loan Agreement (the "LOAN AGREEMENT") dated
August 2, 2001, between Lender, as lender, and Morningside Plaza, LLC, a
Delaware Limited Liability Company (the "BORROWER"), as borrower, Lender made a
loan in the original principal amount of $2,650,000.00 (the "LOAN") to Borrower.
The Loan is evidenced by a certain Promissory Note dated August 2, 2001 made by
Borrower to Lender in the principal amount of the Loan (the "NOTE") and secured
by, among other things, a first priority Mortgage and Security Agreement (the
"SECURITY INSTRUMENT") encumbering property commonly known as Morningside Plaza,
located in Dade City, Florida (the "PROPERTY").
B. Lender has required, as a condition precedent to entering into that
certain Modification Agreement, dated the date hereof, between Lender and
Borrower (the "MODIFICATION AGREEMENT"), that the Guarantors execute and deliver
this Guaranty with respect to the Loan.
C. Any capitalized terms not defined herein shall have the meanings
ascribed to them in the Loan Agreement (except as otherwise set forth herein).
D. The parties hereto acknowledge and agree that this Guaranty
constitutes a guaranty issued in connection with the Loan and shall be deemed a
Loan Document as that term is defined in the Loan Agreement.
E. Each Guarantor is an affiliate of Borrower and thus will derive
substantial benefit from the execution and delivery of the Modification
Agreement. Guarantors have entered into this Agreement to induce Lender to enter
into the Modification Agreement.
AGREEMENT
1. Guarantors jointly and severally hereby absolutely and unconditionally
guarantee to Lender the prompt and unconditional payment of (i) the
Loan and the interest thereon, as the same shall become due and payable
under the Note, (ii) the Obligations (as defined in the Security
Instrument), as the same may become due and payable under the Loan
Documents, and (iii) any and all other sums of money which, at any
time, may become due and payable under the provisions of the Note, the
Loan Agreement or the other Loan Documents (collectively, the "DEBT").
2. It is expressly understood and agreed that, except as otherwise
expressly provided in Paragraph 4 herein, this is a continuing guaranty
and that the obligations of each Guarantor hereunder are and shall be
absolute under any and all circumstances, without regard to the
validity or enforceability of the Note, the Loan Agreement, or the
other Loan Documents, a true copy of each of said documents Guarantors
hereby acknowledge having received and reviewed.
3. Any indebtedness of Borrower to any Guarantor now or hereafter existing
(including, but not limited to, any rights of subrogation that any
Guarantor may have against Borrower or any other Guarantor as a result
of any payment by any Guarantor under this Guaranty), together with any
interest thereon, shall be, and such indebtedness is, hereby deferred
and postponed until, and subordinated to, the prior payment in full of
the Debt. Until payment in full of the Debt (including interest
accruing on the Note after the commencement of a proceeding by or
against Borrower under the Bankruptcy Code which interest the parties
agree shall remain a claim that is prior and superior to any claim of
any Guarantor notwithstanding any contrary practice, custom or ruling
in cases under the Bankruptcy Code generally), each Guarantor agrees
not to accept any payment or satisfaction of any kind of indebtedness
of Borrower to any Guarantor and hereby assigns such indebtedness to
Lender, including the right to file proof of claim and to vote thereon
in connection with any such proceeding under the Bankruptcy Code,
including the right to vote on any plan of reorganization. Further,
each Guarantor agrees that until such payment in full of the Debt, (i)
no one of them shall accept payment from the others by way of
contribution on account of any payment made hereunder by such party to
Lender, (ii) no one of them will take any action to exercise or enforce
any rights to such contribution, and (iii) if any Guarantor should
receive any payment, satisfaction or security for any indebtedness of
Borrower to any Guarantor or for any contribution by any Guarantor for
payment made hereunder by the recipient to Lender, the same shall be
delivered to Lender in the form received, endorsed or assigned as may
be appropriate for application on account of, or as security for, the
Debt and until so delivered, shall be held in trust for Lender as
security for the Debt. Notwithstanding anything contained herein to the
contrary, Manager shall not be obligated to return or refund to Lender
any Management Fee (as defined in that certain Assignment of Management
Agreement and Subordination of Management Fees, dated August 2, 2001,
among Borrower, Lender and Manager) or other fee, commission or other
amount already received by Manager prior to the occurrence of an Event
of Default, and to which Manager was entitled under the Management
Agreement.
4. Notwithstanding anything to the contrary contained herein, this
Guaranty and the obligations contained herein shall terminate in the
event that Lender, in its sole and absolute discretion, consents to and
approves of a transfer of the Property to, and the assumption of the
Loan by, a third party.
5. Each Guarantor agrees that, upon written notice from Lender, each
Guarantor will reimburse Lender within five (5) days of receipt of such
notice, to the extent that such reimbursement is not made by Borrower
for all expenses (including reasonable counsel fees and disbursements)
incurred by Lender in connection with the collection of the Debt or any
portion thereof or with the enforcement of this Guaranty.
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6. All moneys available to Lender for application in payment or reduction
of the Debt may be applied by Lender in such manner and in such amounts
and at such time or times and in such order and priority as Lender may
elect.
7. Each Guarantor hereby waives notice of the acceptance hereof,
presentment, demand for payment, protest, notice of protest, or any and
all notice of non-payment, non-performance or non-observance, or other
proof, or notice or demand.
8. Each Guarantor further agrees that the validity of this Guaranty and
the obligations of each Guarantor hereunder shall in no way be
terminated, affected or impaired (i) by reason of the assertion by
Lender of any rights or remedies which it may have under or with
respect to either the Note, the Loan Agreement or the other Loan
Documents, against any person obligated thereunder or the Property, or
(ii) by reason of the release of the Property, or (iii) by reason of
Lender's failure to exercise, or delay in exercising, any such right or
remedy or any right or remedy Lender may have hereunder or in respect
to this Guaranty, or (iv) by reason of the commencement of a case under
the Bankruptcy Code by or against any person obligated under the Note,
the Loan Agreement or the other Loan Documents, or (v) by reason of any
payment made on the Debt or any other indebtedness arising under the
Note, the Loan Agreement or the other Loan Documents, whether made by
Borrower, any Guarantor or any other person, which is required to be
refunded pursuant to any bankruptcy or insolvency law; it being
understood that no payment so refunded shall be considered as a payment
of any portion of the Debt, nor shall it have the effect of reducing
the liability of any Guarantor hereunder. It is further understood,
that if Borrower shall have taken advantage of, or be subject to the
protection of, any provision in the Bankruptcy Code, the effect of
which is to prevent or delay Lender from taking any remedial action
against Borrower, including the exercise of any option Lender has to
declare the Debt due and payable on the happening of any default or
event by which under the terms of the Note, the Loan Agreement or the
other Loan Documents, the Debt shall become due and payable, Lender
may, as against each Guarantor, nevertheless, declare the Debt due and
payable and enforce any or all of its rights and remedies against each
Guarantor provided for herein.
9. Each Guarantor further covenants that, this Guaranty shall remain and
continue in full force and effect as to any modification, extension or
renewal of the Note, the Loan Agreement, or any of the other Loan
Documents, that Lender shall not be under a duty to protect, secure or
insure the Property, and that other indulgences or forbearance may be
granted under any or all of such documents, all of which may be made,
done or suffered without notice to, or further consent of, any
Guarantor.
10. As a further inducement to Lender to enter into the Modification
Agreement and in consideration thereof, each Guarantor further
covenants and agrees (i) that in any action or proceeding brought by
Lender against any Guarantor on this Guaranty, each Guarantor shall and
does hereby waive trial by jury, (ii) that the Supreme Court of the
State of New York for the County of New York, or, in a case involving
diversity of citizenship, the United States District Court for the
Southern District of New York, shall have jurisdiction of any such
action or proceeding, and (iii) that service of any summons and
complaint or other process in any such action or proceeding may be made
by registered or certified mail directed to each Guarantor at such
Guarantor's respective address set forth above, each Guarantor hereby
waiving personal service thereof.
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11. This is a guaranty of payment and not of collection and upon any
default of Borrower under the Note, the Loan Agreement, or any other
Loan Documents, Lender may, at its option, proceed directly and at
once, without notice, against any Guarantor to collect and recover the
full amount of the liability hereunder or any portion thereof, without
proceeding against Borrower or any other person, or foreclosing upon,
selling, or otherwise disposing of or collecting or applying against
the Property or other collateral for the Loan. Guarantor hereby waives
the pleading of any statute of limitations as a defense to the
obligations hereunder.
12. Each reference herein to Lender shall be deemed to include its
successors and assigns. Each reference herein to Guarantor shall be
deemed to include the heirs, executors, administrators, legal
representatives, successors and assigns of each Guarantor respectively,
all of whom shall be bound by the provisions of this Guaranty.
13. If any party hereto shall be a partnership, the agreements and
obligations on the part of each Guarantor herein contained shall remain
in force and application notwithstanding any changes in the individuals
composing the partnership and the term "Guarantor" shall include any
altered or successive partnerships but the predecessor partnerships and
their partners shall not thereby be released from any obligations or
liability hereunder.
14. Each Guarantor has the full power, authority and legal right to execute
this Guaranty and to perform all of its respective obligations under
this Guaranty.
15. All understandings, representations and agreements heretofore had with
respect to this Guaranty are merged into this Guaranty which alone
fully and completely expresses the agreement of each Guarantor and
Lender.
16. This Guaranty may be executed in one or more counterparts by some or
all of the parties hereto, each of which counterparts shall be an
original and all of which together shall constitute a single agreement
of Guaranty. The failure of any party hereto to execute this Guaranty,
or any counterpart hereof, shall not relieve the other signatories from
their obligations hereunder.
17. This Guaranty may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the
part of Lender or Borrower but only by an agreement in writing signed
by the party against whom enforcement of any modification, amendment,
waiver, extension, change, discharge or termination is sought.
18. This Guaranty shall be governed, construed and interpreted as to
validity, enforcement and in all other respects, in accordance with the
laws of the State of New York.
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IN WITNESS WHEREOF, each Guarantor has duly executed this
Guaranty as of the date first above set forth.
GLIMCHER PROPERTIES
CORPORATION, a Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
-------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President
GLIMCHER DEVELOPMENT
CORPORATION, a Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: GLIMCHER PROPERTIES
CORPORATION, a Delaware
corporation, its general partner
By: /s/ XXXXXX X. XXXXXXX
------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President
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