EXHIBIT 10.127
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
FOR VALUE RECEIVED and for the purpose of inducing U.S. BANK NATIONAL
ASSOCIATION, a national banking association, having an office at 00 Xxxx Xxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxx 00000, individually ("U.S. Bank") and in its
capacity as administrative agent (the "Administrative Agent") for itself and the
lenders under the Loan Agreement, defined below, together with their respective
successors and assigns (collectively, the "Lenders"), to make a loan in the
aggregate principal amount of Forty-Two Million Two Hundred Fifty Thousand
Dollars ($42,250,000.00) to CATALINA PARTNERS, L.P., a Delaware limited
partnership, having an office at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000
("Borrower"), from which the undersigned expects to derive direct monetary
benefit, the undersigned, GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership ("Guarantor") agrees for the benefit of U.S. Bank as
follows:
1. Guarantor unconditionally and absolutely guarantees to Administrative
Agent and Lenders the full and prompt payment, whether at stated or accelerated
maturity or otherwise, of any and all principal, interest, damages, losses,
costs, charges, expenses and liabilities, whether fixed or contingent
(collectively the "Indebtedness") and the complete, faithful and punctual
performance of any and all Rate Management Obligations (as defined in the Loan
Agreement) and any and all other obligations (collectively the "Obligations") of
Borrower to any of the Lenders and/or Administrative Agent under the terms and
conditions of (a) the Loan Agreement, of even date herewith, by and between
Borrower and Administrative Agent and Lenders ("Loan Agreement") pertaining to
such loan; (b) one or more Notes, of even date herewith, made by Borrower to
Lenders in the aggregate principal amount of Forty-Two Million Two Hundred Fifty
Thousand Dollars ($42,250,000.00) and any and all renewals, amendments,
modifications, reductions and extensions thereof and substitutions therefor
(collectively the "Notes") evidencing such loan; (c) the Open-End Fee Mortgage,
Leasehold Mortgage, Assignment of Rents and Security Agreement and Fixture
Filing of even date herewith, granted by Borrower to Administrative Agent (the
"Mortgage") securing such loan, said Mortgage being a lien upon real property
located in the County of Dauphin and Commonwealth of Pennsylvania and being more
particularly described in said Mortgage (hereinafter referred to as the
"Premises"); (d) any and all Rate Management Agreements (as defined in the Loan
Agreement); and (e) any other instrument, document, certificate or affidavit
heretofore, now or hereafter given by Borrower evidencing or securing all or any
part of the foregoing (the same, together with the Loan Agreement, the Notes and
Mortgage, collectively the "Loan Documents").
Notwithstanding the foregoing or any other provision of this Guaranty to the
contrary, the maximum liability of Guarantor hereunder shall be as follows:
(a) twenty percent (20.0%) (the "Percentage Guaranty") of the outstanding
principal and interest balances due under any of the Notes and the
Percentage Guaranty of all costs, late charges and other amounts due
and owing to Administrative Agent under the Loan Documents, as
determined by Administrative Agent as of the date of the acceleration
of any of the Notes;
(b) one hundred percent (100%) of all interest, late charges, costs and
other amounts owing to Administrative Agent and/or any of the Lenders
accruing after the date of acceleration; and
(c) one hundred percent (100%) of any loss, expenses or damages suffered
by Administrative Agent and/or any of the Lenders as a result of any
one or more of the following:
(i) Borrower or any affiliate or employee of Borrower
misappropriates any rents or other income or collateral proceeds
including but not limited to insurance or condemnation proceeds
or awards relating to the Premises ;
(ii) Borrower or any affiliate or employee of Borrower fails to
apply or pay over any tenant security deposits or other
refundable deposits in accordance with the terms of the
applicable lease or other agreement or any Loan Document;
(iii) Borrower or any affiliate or employee of Borrower receives
rents or other payments from tenants more than one month in
advance and fail to apply them in accordance with the Loan
Documents;
(iv) following the occurrence of an Event of Default (as defined
in the Loan Agreement), Borrower or any affiliate or employee of
Borrower (including Borrower in its capacity as a debtor or
debtor in possession in a bankruptcy proceeding) fails either to
apply rents or other Premises income, whether collected before or
after such event of default, to the ordinary, customary, and
necessary expenses of operating the Premises or, upon demand, to
deliver such rents or other Premises income to Administrative
Agent;
(v) waste is committed on the Premises during a period when
Borrower or any affiliate, agent, or employee of Borrower is in
possession thereof ("waste" meaning the diminution in the
Premises' value resulting from Xxxxxxxx's wrongful removal or
destruction of any portion of the Premises);
(vi) any damage to the Premises, Administrative Agent and/or any
of the Lenders is caused as a result of the intentional
misconduct of Borrower;
(vii) Borrower fails, in accordance with the terms of the Loan
Documents, to maintain insurance or to pay taxes, assessments, or
other liens or claims that could create liens affecting the
Premises (unless Administrative Agent is escrowing funds therefor
and fails to make such payments or has taken possession of the
Premises following an event of default, has received all rents
from the Premises applicable to the period for which such
insurance, taxes or other items are due, and thereafter fails to
make such payments);
(viii) there is any fraud or material misrepresentation by
Borrower or any of its affiliates, any guarantor, any indemnitor,
employee, or other person with actual or apparent authority to
make statements or representations on behalf of Xxxxxxxx, any
affiliate of Borrower, or any guarantor or indemnitor ("apparent
authority" meaning such authority as the principal knowingly or
negligently permits the agent to assume, or which he holds the
agent out as possessing); or
(ix) Xxxxxxxx fails, following an Event of Default (as defined in
the Loan Agreement), to deliver to Administrative Agent on demand
all security deposits, books and records relating to the Premises
and in the possession or control of Borrower or any affiliate or
employee of Borrower.
(d) any and all costs of Administrative Agent and/or any of the Lenders
incurred in connection with collecting any amounts due hereunder,
including, but not limited to reasonable attorney fees and costs.
Guarantor further agrees the amount guaranteed hereunder shall not be reduced by
payments made by Xxxxxxxx or by proceeds realized by Administrative Agent and/or
any of the Lenders from sale of the Premises or any other collateral securing
the Indebtedness, by foreclosure or otherwise, until such time as the
Indebtedness has been paid in full. Administrative Agent shall have the right to
determine, in Administrative Agent's discretion, the application of all such
payments or proceeds.
2. Guarantor agrees that if any of the Indebtedness shall not be paid or
any of the Obligations shall not be performed by Borrower in accordance with the
terms and conditions of the Loan Documents, Guarantor shall immediately so pay
such Indebtedness and so perform such Obligations and the same shall become the
direct and primary indebtedness and obligation of Guarantor. Guarantor shall be
liable for the payment of the Indebtedness and the performance of the
Obligations as fully and to the same effect as if Guarantor was the maker or
principal obligor under the Loan Documents.
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3. The liability of Guarantor hereunder is independent of the Indebtedness
and Obligations of Borrower and a separate action or actions may be brought and
prosecuted against Guarantor, regardless of whether any action is brought
against Borrower or whether Borrower be joined in any such action or actions.
There shall be no duty or obligation of Administrative Agent and/or any of the
Lenders to exhaust any remedy in law or in equity against Borrower or any
security before bringing suit or instituting proceedings of any kind against
Guarantor.
4. Guarantor represents that, at the time of the execution and delivery of
this Guaranty, nothing exists to impair the liability of Guarantor hereunder or
the immediate effectiveness of this Guaranty.
5. The liability of Guarantor hereunder shall continue until full payment
of the Indebtedness and full performance of the Obligations, it being the
intention hereof that Guarantor shall remain liable for the payment of the
Indebtedness and for the performance of the Obligations, notwithstanding any
act, omission or event which might, but for the provisions hereof, otherwise
operate as a legal or equitable discharge of Guarantor. Without limiting the
generality of the foregoing, the liability of Guarantor hereunder shall not be
affected or impaired on account of the following events:
(a) any execution of any guaranty, whether now or hereafter, or any
invalidity or unenforceability of any such guaranty;
(b) any impairment, modification, release, discharge or limitation of
liability of Borrower, or any stay of lien enforcement proceedings against
any of the same or their respective property, resulting from any
receivership, insolvency, bankruptcy, dissolution, merger, reorganization
or other similar proceeding, under any present or future provision of the
United States Bankruptcy Code or any other similar federal or state law or
under the decision of any court;
(c) any voluntary or involuntary liquidation, sale or other disposition of
all or substantially all of the assets of Borrower;
(d) any determination that Borrower is not liable for the payment of the
Indebtedness or the performance of the Obligations because the act creating
the Indebtedness or Obligations is ultra xxxxx, because the officers or
persons creating the Indebtedness or Obligations acted in excess of their
authority, because of any exculpatory provision in the Loan Documents,
because of any federal or state law or decision of any court, because of
any illegality, irregularity, invalidity or unenforceability, in whole or
in part, of the Loan Documents, or otherwise; or
(e) any failure of Administrative Agent and/or any of the Lenders to
accelerate the maturity of the Indebtedness or the Obligations upon default
thereon, to preserve the liability of any person for payment of the
Indebtedness or performance of the Obligations, to take security therefor,
to perfect its interest in any security taken or to exercise or enforce, by
legal proceedings or otherwise, its rights against Borrower, any other
person or any security taken;
whether or not Guarantor shall have any notice or knowledge of any of the
foregoing. Further, no delay in exercising any right, power or privilege under
this Guaranty or the Loan Documents shall operate as a waiver of such right,
power or privilege.
6. Guarantor authorizes Administrative Agent and/or any of the Lenders to
deal in any manner with the Indebtedness and the Obligations and with the
security of every kind and character given to secure the payment and performance
thereof, provided that the principal portion of the Indebtedness shall not be
increased above the amount aforesaid without the written consent of Guarantor,
and consents to each action or omission of Administrative Agent and/or any of
the Lenders pursuant to such authority. Without limiting the generality of the
foregoing, Guarantor authorizes Administrative Agent and/or any of the Lenders
from time to time and whether one or more times, to amend, modify or supplement
any or all of the Loan Documents; accept one or more replacement promissory
notes; extend the time of payment or maturity of or renew the Indebtedness or
the Obligations; waive or compromise any term or condition contained in the Loan
Documents or any right, remedy or power thereunder, including without
limitation, any condition precedent to loan advances or any right with respect
to requiring additional security; accept additional or replacement security; or
release or surrender security.
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7. The liability of Guarantor hereunder and the rights of Administrative
Agent and/or any of the Lenders hereunder shall be reinstated and revived with
respect to any amount at any time paid against the Indebtedness that thereafter
is required to be restored or returned by Administrative Agent and/or any of the
Lenders as a result of insolvency, bankruptcy, reorganization or other similar
proceedings affecting Borrower, Guarantor or any other person, or any of the
assets of the same, or as a result of any other fact or circumstance, all as
though such amount had not been paid.
8. Guarantor waives:
(a) notice of acceptance of this Guaranty by Administrative Agent and/or
any of the Lenders of loan advances by Administrative Agent and/or any of
the Lenders and of presentment for payment, nonpayment or dishonor or
protest of any of the Indebtedness, or any of the indebtedness of any
person or entity held by Administrative Agent and/or any of the Lenders as
security for the Indebtedness or the Obligations;
(b) any and all defenses, offsets and counterclaims of Borrower to
liability under the Loan Documents or of Guarantor under this Guaranty,
whether now existing or hereafter arising, it being understood and agreed
that the guarantee of Guarantor hereunder is absolute and unconditional
under any and all circumstances;
(c) any duty on the part of Administrative Agent and/or any of the Lenders
to disclose to Guarantor any fact or facts it may now or hereafter know
about Borrower, regardless of whether Administrative Agent and/or any of
the Lenders has reason to believe that any such facts materially increase
the risk beyond that which Guarantor intends to assume, has reason to
believe that such facts are unknown to Guarantor or has a reasonable
opportunity to communicate such facts to Guarantor, it being understood and
agreed that Guarantor is fully responsible for being and remaining informed
of the financial condition of Borrower and of all circumstances bearing on
the risk of nonpayment of the Indebtedness or nonperformance of the
Obligations; and
(d) any and all rights of subrogation, contribution, reimbursement,
indemnity, exoneration, implied contract, recourse to security or any other
claim, including without limitation, any claim, as that term is defined in
the United States Bankruptcy Code and any amendments, which Guarantor may
now have or later acquire against Borrower, against any other entity
directly or contingently liable for the payment of the Indebtedness or
performance of the Obligations or against the security for the Indebtedness
or the Obligations, arising from the existence or payment of the
Indebtedness or existence or performance of the Obligations under this
Guaranty.
9. Guarantor agrees to pay to Administrative Agent and/or any of the
Lenders all damages, losses, costs, charges, expenses and liabilities of every
kind, nature and description suffered or incurred by Administrative Agent and/or
any of the Lenders including without limitation reasonable attorneys' fees,
arising in any manner out of, growing out of or connected in any way with the
enforcement of the Loan Documents or the protection of any security created
thereby, including the priority thereof, or the enforcement of this Guaranty.
10. Guarantor subordinates any and all indebtedness of Borrower, now or
hereafter owed to Guarantor to the Indebtedness and agrees that Guarantor shall
not demand or accept any payment of principal or interest from Borrower, shall
not claim any offset or other reduction of Guarantor's liability hereunder
because of any such indebtedness and shall not take any action to obtain any of
the security for the Indebtedness or the Obligations.
11. Guarantor warrants and represents to Administrative Agent and all
Lenders that all financial statements heretofore delivered by Guarantor to
Administrative Agent are true and correct and that there have been no material
adverse changes as of the date hereof. Guarantor shall deliver to Administrative
Agent unauditied financial statements for Glimcher Consolidated Group which
shall mean the Borrower, parent entities and all subsidiaries thereof,
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(quarterly and year-to-date and trailing 12 months results) then current balance
sheets, income and expense statements and such other financial information as is
required under GPLP's Revolving Credit Facility (as defined in the Loan
Agreement), within forty-five (45) days after the end of each calendar quarter
and audited statements ninety (90) days after the end of each fiscal year of
Guarantor and when otherwise requested by Administrative Agent. All financial
statements shall be prepared in accordance with generally accepted accounting
principles or otherwise in form acceptable to Administrative Agent.
Administrative Agent reserves the right to require audited or certified
financial information by a certified public accountant, acceptable to
Administrative Agent but not more often than annually.
12. Guarantor shall not transfer assets to others for less than fair value
or in other than the ordinary course of business, if such transfer of assets
would result in a Material Adverse Effect (as defined in the Loan Agreement) to
Guarantor, without Administrative Agent's prior written consent.
13. Nothing herein contained, nor in any of the other Loan Documents, shall
be construed or so operate as to require Guarantor to pay interest in an amount
or at a rate greater than the highest rate permissible under applicable law.
Should any interest or other charges paid by Guarantor result in the computation
or earning of interest in excess of the highest rate permissible under
applicable law, then any and all such excess shall be and the same is waived by
Administrative Agent and Lenders as applicable and all such excess shall be
automatically credited against and in reduction of the principal sum, and any
portion of said excess which exceeds the principal sum shall be paid by
Administrative Agent and Lenders as applicable to Guarantor, it being the intent
of the parties hereto that under no circumstances shall Guarantor be required to
pay interest in excess of the highest rate permissible under applicable law. All
interest paid or agreed to be paid to Administrative Agent and Lenders as
applicable to the extent permitted under applicable law, be amortized, prorated,
allocated and spread throughout the full period until payment in full of the
Indebtedness, including the period of any renewal or extensions thereof, so that
interest thereon for such full period shall not exceed the maximum amount
permitted by applicable law. Notwithstanding anything to the contrary herein
contained, in the event that the interest rate to be charged hereunder ever
exceeds the highest rate permissible under applicable law, thereby causing the
interest accruing to be limited to such rate, then any subsequent reduction in
the interest rate, to which Guarantor would otherwise be entitled, shall be held
in abeyance until the total amount of interest accrued equals the amount of
interest which would have accrued had the interest rate not been limited to the
highest rate permissible under applicable law.
14. Any notice required or permitted to be given hereunder shall be in
writing if given in the same manner as required for providing notice under the
Loan Agreement.
15. Whenever any amount is payable to Administrative Agent and/or the
Lenders hereunder, Administrative Agent and Lenders shall have the right to set
off such amount against amounts owing to Guarantor by Administrative Agent
and/or the Lenders whether or not then due and payable, and against all other
funds or property of such Guarantor on deposit with or otherwise held in the
custody of Administrative Agent and/or the Lenders all without notice to or
demand on Guarantor, such notice and demand being waived.
16. All rights and remedies of Administrative Agent and Lenders are
cumulative and not alternative. If any provision or any part of any provision
contained in this Guaranty shall for any reason be held or deemed to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or remaining part of the
affected provision of this Guaranty, and this Guaranty shall be construed as if
such invalid, illegal or unenforceable provision or part thereof had never been
contained herein, and the remaining provisions of this Guaranty shall remain in
full force and effect.
17. Guarantor agrees that this Guaranty shall inure to the benefit of and
may be enforced by Administrative Agent or its endorsees, transferees,
successors and assigns, and shall be binding upon and enforceable against
Guarantor and Guarantor's legal representatives, heirs, successors and assigns.
This Guaranty may be assigned by Administrative Agent in whole or in part.
18. This Guaranty is executed by Guarantor at Franklin County, Ohio. This
Guaranty is delivered in the State of Ohio and is to be governed by and
construed in accordance with the laws of the State of Ohio. Guarantor consents
to, and by execution of this Guaranty submits to, the personal jurisdiction of
the Court of Common Pleas of Franklin County, Ohio and the United States
District Court sitting in Columbus, Ohio for the purposes of any judicial
proceedings which are instituted for the enforcement of this Guaranty. Guarantor
agrees that venue is proper in either of said courts.
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19. This is the entire agreement and there are no other oral or written
agreements or understandings affecting the terms hereof. This Guaranty may be
modified only by subsequent written agreement executed by Xxxxxxxxx and
Administrative Agent.
20. Guarantor 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 this Guaranty or the payment of the Indebtedness or the
performance of the Obligations becomes due, whether at stated maturity,
accelerated maturity or otherwise, to waive the issuing and service of process
and to confess judgment against Guarantor in favor of Administrative Agent
and/or Lenders 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.
ADMINISTRATIVE AGENT AND LENDERS BY ACCEPTANCE OF THIS GUARANTY, AND
GUARANTOR HEREBY MUTUALLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE
FOR THE BENEFIT OF THE OTHER ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THIS GUARANTY OR THE LOAN
DOCUMENTS, THE TRANSACTIONS RELATED THERETO OR THE RELATIONSHIP ESTABLISHED
THEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT TO ADMINISTRATIVE AGENT,
LENDERS AND GUARANTOR TO ENTER INTO THIS TRANSACTION. IT SHALL NOT IN ANY WAY
AFFECT, WAIVE, LIMIT, AMEND OR MODIFY ADMINISTRATIVE AGENT'S AND/OR ANY LENDERS'
ABILITY TO PURSUE THEIR REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION
OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN THIS GUARANTY OR THE LOAN
DOCUMENTS.
[Remainder of This Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Xxxxxxxxx has caused this Guaranty to be executed as of
the 22nd day of April, 2008.
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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.
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GLIMCHER PROPERTIES LIMITED
PARTNERSHIP
a Delaware limited partnership
By: Glimcher Properties Corporation,
a Delaware corporation, its General Partner
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Xxxx X. Xxxx
Executive Vice President
Chief Financial Officer
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
The forgoing instrument was acknowledged before me this 22nd day of April,
2008, by Xxxx X. Xxxx, the Executive Vice President and Chief Financial Officer
of Glimcher Properties Corporation, a Delaware corporation and the General
Partner of Glimcher Properties Limited Partnership, a Delaware limited
partnership, on behalf of said limited partnership.
/s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------------
Notary Public
Commission Expiration: 5/29/2011
---------------------
This instrument prepared by: Xxxxx X. Xxxxxx, Esq., Xxxxxxx and Xxxxxx LLP, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
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