EXHIBIT 10.25
COMPLETION AND PAYMENT GUARANTY
-------------------------------
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 127 Public Square, Cleveland, Ohio 44114, 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:
---------
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.
<PAGE>
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
-2-
<PAGE>
(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
-3-
<PAGE>
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
