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EXHIBIT 10.25
COMPLETION AND
PAYMENT GUARANTY
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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:
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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
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<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
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<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,






