LIMITED PAYMENT GUARANTY
Exhibit
10.109
This
Limited Payment Guaranty is made as of October 22, 2008 by Glimcher Properties
Limited Partnership, a Delaware limited partnership (“Guarantor”) to and
for the benefit of KeyBank National Association, individually (“KeyBank”) and as
administrative agent (“Administrative
Agent”) for itself and the lenders under the Loan Agreement (as defined
below) and their respective successors and assigns (collectively, the “Lenders”).
RECITALS
X. Xxxxxxxx
Northtown Venture LLC, a limited liability company organized under the laws of
the State of Delaware (“Glimcher Borrower”)
and GB Northtown, LLC, a limited liability company organized under the laws of
the State of Delaware (“GB Borrower” and
collectively with Glimcher Borrower, the “Borrower”) and
Guarantor have requested that the Lenders make a single disbursement term loan
available to Borrower in an aggregate principal amount of $40,000,000 (the
“Loan”).
B. The
Lenders have agreed to make the Loan available to Borrower pursuant to the terms
and conditions set forth in a Term Loan Agreement of even date herewith among
Borrower, Guarantor, KeyBank, individually, and as Administrative Agent, and the
Lenders named therein (as amended, modified or restated from time to time, the
“Loan
Agreement”). All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the Loan
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 as evidence of
Borrower’s indebtedness to each such Lender with respect to the Loan (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 Loan Agreement, are collectively
referred to herein as the “Notes”).
D. Guarantor
is the sole member of both Glimcher Borrower and GB
Borrower. Guarantor acknowledges that the extension of credit by the
Lenders to Borrower pursuant to the Loan Agreement will benefit Guarantor by
enhancing the financial strength of the Borrower. The execution and
delivery of this Guaranty by Guarantor is a condition precedent to the
performance by the Lenders of their obligations under the Loan
Agreement.
AGREEMENTS
NOW,
THEREFORE, Guarantor, 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 agrees as follows:
1. Guarantor
absolutely, unconditionally, and irrevocably guaranties 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 Loan Agreement, and the other Loan
Documents; and
(b) the
payment of all Enforcement Costs (as hereinafter defined in Paragraph 7
hereof)
All
amounts due, debts, liabilities, and payment obligations described in
subparagraph (a) of this Paragraph 1 are
referred to herein as the “Loan
Indebtedness.”
Notwithstanding
the foregoing, unless a Guaranty Limitation Suspension Event (as defined below)
has occurred and is continuing as of the date of delivery of any written demand
given under Paragraph
2 below by Administrative Agent to Guarantor for payment of the
outstanding principal balance under the Notes, Guarantor’s aggregate liability
hereunder with respect to the then-outstanding principal balance under of the
Notes shall in no event exceed Twenty Million Dollars ($20,000,000) (the “Maximum Principal Guaranteed
Amount”). If such a Guaranty Limitation Suspension Event does then exist,
there shall be no limitation on the amount of Guarantor’s liability under this
Guaranty. Guarantor expressly acknowledges and agrees that the limitation of
Guarantor’s liability to the Maximum Principal Guaranteed Amount applies only to
the principal balance of the Notes and shall not apply to interest, fees or any
other non-principal amounts which comprise the Loan Indebtedness or to the
Enforcement Costs, liability for which shall not be limited
hereunder. The term “Guaranty Limitation Suspension Event” as used
herein shall mean, as of any date of determination, that (i) (A) Herberger’s
shall have failed to be in occupancy of, and open for business in, its premises
at the Collateral Asset on December 31, 2008 or shall have ceased at any time
thereafter to be both in occupancy of, and open for business in, such premises
and not more than thirty-one (31) days delinquent in paying rent due under its
lease of such premises or (B) any two of Home Depot, LA Fitness, Best Buy and
Burlington Coat Factory shall have ceased at any time after the date hereof to
be both in occupancy of, and open for business in, their premises at the
Collateral Asset and not more than thirty-one (31) days delinquent in paying
rent due under their leases of such premises and (ii) Borrower has
failed by such date of determination to either (A) enter into a lease or leases
with a replacement tenant or tenants acceptable in all respects to the
Administrative Agent, in its reasonable discretion, or (B) cause the
Administrative Agent to have received and approved an Appraisal establishing an
updated Appraised Value for the Collateral Asset reflecting the loss of such
tenant or tenants and repay a sufficient amount of the Outstanding Loan Amount
to achieve a Collateral Asset LTV of sixty percent (60%) or less, using such
updated Appraised Value. In no event shall the Maximum Principal
Guaranteed Amount be reduced below the amount stated above as a result of: (i)
any principal payments made by Borrower under the Loan, including without
limitation any optional prepayments under Section 2.6(a)
of the Loan Agreement or mandatory prepayments under Section 2.6(b) of the
Loan Agreement; (ii) Administrative Agent’s foreclosure or acceptance of a
deed in lieu of foreclosure with respect to any collateral securing the
Indebtedness; or (iii) the payment to Administrative Agent by Guarantor of any
amount pursuant to a Non-Recourse Exception Guaranty Agreement or an Account
Security Pledge, Assignment and Control Agreement of even date herewith made by
Guarantor, in favor of Administrative Agent, or that certain Environmental
Indemnity Agreement of even date herewith made by Guarantor and Borrower in
favor of Administrative Agent. Administrative Agent’s and Lenders’ agreement to
the foregoing limitation on Guarantor’s liability shall in no way be deemed to
limit or restrict Administrative Agent’s right to apply any sums paid by
Guarantor to any portion of the Obligations of Borrower with respect to the
Loan.
-2-
2. In
the event of any default by Borrower from time to time in making payment of the
Loan Indebtedness beyond the expiration of any applicable grace period provided
for in the Loan Agreement, Guarantor agrees, within thirty (30) days after
written demand by the Administrative Agent to pay the Loan Indebtedness, subject
to the limitations set forth in Paragraph 1, as may
then be or thereafter become due and owing or to be performed under the terms of
the Notes, the Loan Agreement, and the other Loan Documents.
3. Guarantor
does 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 Guarantor may have
against Borrower or which Guarantor 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
Guarantor with liability, (iv) any failure by the Administrative Agent and
the Lenders to inform Guarantor of any facts the Administrative Agent and the
Lenders may now or hereafter know about Borrower, the Loan, or the transactions
contemplated by the Loan Agreement, it being understood and agreed that the
Administrative Agent and the Lenders have no duty so to inform and that
Guarantor is 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 Loan Indebtedness, 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 Loan Indebtedness. Credit may be granted or
continued from time to time by the Lenders to Borrower without notice to or
authorization from Guarantor, 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 Guarantor the Lenders’ assessment of the financial condition of
Borrower. Guarantor acknowledges that no representations of any kind
whatsoever have been made by the Administrative Agent and the Lenders to
Guarantor. 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.
4. Guarantor
further agrees that Guarantor’s 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 Guarantor 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 Loan 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 Loan 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 Loan Indebtedness, even though a Lender might lawfully
have elected to apply such payments to any part or all of the Loan Indebtedness,
it being the intent hereof that Guarantor shall remain liable as principal for
payment of the Loan Indebtedness until all indebtedness has been paid in full,
notwithstanding any act or thing which might otherwise operate as a legal or
equitable discharge of a surety. Guarantor further understands and
agrees that the Administrative Agent and the Lenders may at any time enter into
agreements with Borrower to amend and modify a Note, the Loan Agreement or any
of the other Loan Documents, or any thereof, and may waive or release any
provision or provisions of a Note, the Loan 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 Guarantor’s obligations hereunder.
-3-
5. This
is an absolute, unconditional, complete, present and continuing guaranty of
payment and not of collection. Guarantor agrees that its obligations
hereunder shall be joint and several with any and all other guarantees given in
connection with the Loan from time to time. Guarantor agrees 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 Loan
Agreement, or any of the other Loan Documents or by or resorting to any other
guaranties, and Guarantor hereby waives 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. Guarantor further agrees
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 Loan
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 Guarantor’s obligations hereunder, it being the purpose and intent of
Guarantor that the obligations of Guarantor hereunder shall be primary,
absolute, independent and unconditional under any and all circumstances
whatsoever. Neither Guarantor’s 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 Loan
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 Loan
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 Guarantor 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.
-4-
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 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.
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 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 Guarantor now or hereafter existing is hereby
subordinated to the Loan Indebtedness. Guarantor will not seek, accept, or
retain for Guarantor’s own account, any payment from Borrower on account of such
subordinated debt at any time when a Default or Unmatured Default exists under
the Loan Agreement or the Loan Documents, and any such payments to Guarantor
made while any Default or Unmatured Default then exists under the Loan Agreement
or the Loan Documents on account of such subordinated debt shall be collected
and received by Guarantor in trust for the Lenders and shall be paid over to the
Administrative Agent on behalf of the Lenders on account of the Loan
Indebtedness without impairing or releasing the obligations of Guarantor
hereunder.
10. Guarantor
hereby subordinates to the Loan Indebtedness any and all claims and rights,
including, without limitation, subrogation rights, contribution rights,
reimbursement rights and set-off rights, which Guarantor may have against
Borrower arising from a payment made by Guarantor under this Guaranty and agree
that, until the entire Loan Indebtedness is paid in full, not to assert or take
advantage of any subrogation rights of Guarantor or the Lenders or any right of
Guarantor 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 Loan Indebtedness, nor
shall Guarantor seek or be entitled to seek any contribution or reimbursement
from Borrower or any other guarantor in respect of payments made by Guarantor
hereunder. It is expressly understood that the agreements of
Guarantor 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.
-5-
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. Guarantor
hereby submits 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. Guarantor hereby consents to the jurisdiction of the state
and federal courts having jurisdiction in the State of 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. Guarantor hereby agrees that an action, suit, or proceeding
to enforce this Guaranty may be brought in any state or federal court having
jurisdiction in the State of Ohio and hereby waives any objection which
Guarantor 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 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
Guarantor:
Glimcher Properties Limited
Partnership
000 Xxxx
Xxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention: General
Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
To
KeyBank as Administrative Agent and as a Lender:
KeyBank National
Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attention: Xxxxx X. Xxxxxx, Real
Estate Capital
Phone: 000-000-0000
Facsimile: 000-000-0000
-6-
With a
copy to:
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx LLP
0000
Xxxxx Xxxxx
Xxxxxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
If to any
other Lender, to its address set forth in the Loan Agreement.
14. This
Guaranty shall be binding upon Guarantor, and Guarantor’s permitted successors
or assigns, 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. GUARANTOR,
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.
[Signatures
on next page.]
-7-
IN
WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as of the
date first written above.
GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership
By: Glimcher
Properties Corporation,
a Delaware corporation, its
sole
general partner
By:
________________________________
Name: Xxxx X. Xxxx
Title: Executive Vice
President, Chief Financial Officer and Treasurer
-8-
