EXHIBIT 10.27
LIMITED PAYMENT AND PERFORMANCE GUARANTY
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This
Limited Payment and Performance Guaranty is made as of November
30,
2007 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
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A.
Kierland Crossing, LLC, a limited liability company organized under
the
laws of the State of Delaware ("Borrower"), and Guarantor have
requested that
the Lenders make a construction, acquisition and interim loan
available to
Borrower in an aggregate principal amount of $220,000,000 (the
"Facility").
B.
The Lenders have agreed to make the Facility available to
Borrower
pursuant to the terms and conditions set forth in a Construction,
Acquisition
and Interim Loan Agreement of even date herewith among Borrower,
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
Facility (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.
Glimcher Properties is the sole equity member of Glimcher
Kierland
Crossing, LLC, which is both the manager and a Member of the
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
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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:
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(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;
(b) the full, complete and punctual observance, performance,
and
satisfaction of all the obligations, duties, covenants and
agreements of
Borrower under the Loan Agreement with respect to the Phase III
Purchase
Agreement, including without limitation the funding of all
proceeds
required to complete the acquisition of the Phase III Retail Unit
by
Borrower; and
(c) 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
"Facility
Indebtedness." All obligations described in subparagraph (b) of
this Paragraph 1
are referred to herein as the "Phase III Purchase Obligations."
Notwithstanding the foregoing, Guarantor's aggregate liability
remaining
hereunder as of any date with respect to the principal of the Notes
as described
in subparagraph (a) of this Paragraph 1 shall in no event exceed
the amount
obtained by (A) multiplying the then-current Guaranteed Percentage
by Two
Hundred Twenty Million Dollars ($220,000,000.00) and (B)
subtracting from the
result all repayments of the principal of the Notes received by
Lenders from
Guarantor or from any sources other than the proceeds of any sale,
refinancing
or other capital event related to the Project or other revenues
generated by or
attributable in any way to the Project (the "Guaranteed Amount").
Such
limitation to the Guaranteed Percentage of the principal of the
Notes shall not
apply to interest, fees or any other amounts which comprise the
Facility
Indebtedness or to the Enforcement Costs, liability for which shall
not be
limited hereunder. The term "Guaranteed Percentage" as used in this
Paragraph 1
shall initially be fifty percent (50%), subject to (a) reduction to
twenty-five
percent (25%) on the date on which the Pro Forma DSCR, as
determined by the
Administrative Agent pursuant to the Loan Agreement, equals or
exceeds 1.00 to
1.0, so long as no Event of Default has occurred and is then
continuing, (b)
further reduction to ten percent (10%) on the date on which the
Actual DSCR, as
determined by the Administrative Agent pursuant to the Loan
Agreement, equals or
exceeds 1.25 to 1.0, so long as no Event of Default has occurred
and is then
continuing, and (c) subsequent increase (the "Failed Phase III
Increase") on May
1, 2012, being the day after the fifty-fourth (54th) full calendar
month after
the Agreement Effective Date, by adding twenty percent (20%) to the
then-current
Guaranteed Percentage (so that the Guaranteed Percentage will be
increased to
70%, if no prior reductions have occurred, or to 45% or 30%, if one
or two,
respectively, of the reductions under clauses (a) or (b) of this
sentence have
occurred) if on or before April 30, 2012 the Phase III Retail Unit
has not been
substantially completed by the Phase III Developer and conveyed to
the Borrower
in accordance with the terms of the Phase III Purchase
Agreement.
Notwithstanding the foregoing, so long as no Event of Default has
occurred and
is then continuing, the Failed Phase III Increase shall not take
effect, or if
it does take effect, the Failed Phase III Increase shall be
eliminated and
reversed, if (x) Borrower purchases the Phase III Retail Unit after
April 31,
2012 and obtains a new Appraisal of the Project demonstrating that
the
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Outstanding Loan Amount does not exceed seventy-five percent (75%)
of the "as
is" value of the Project as established by an Appraisal at such
time or (y)
Borrower repays a sufficient portion of the Outstanding Loan Amount
so that the
Outstanding Loan Amount is not more than seventy-five percent (75%)
of the
"as-is" value of Phases I and II of the Project as established by
an Appraisal
at such time or (z) Borrower delivers to the Administrative Agent
additional
collateral for the Facility in the form of an unconditional,
irrevocable letter
of credit issued by a bank acceptable to the Administrative Agent
in a form
acceptable to the Administrative Agent for an amount sufficient,
when added to
such then-current "as-is" appraised value of Phases I and II of the
Project, to
cause the Outstanding Loan Amount to be seventy-five percent (75%)
or less of
the combined face amount of such letter of credit and such
then-current "as-is"
appraised value of Phases I and II of the Project. In no event
shall the
Guaranteed Amount be reduced as a result of (i) Borrower's
principal payments
with respect to the Facility Indebtedness unless and until the
Facility has been
fully disbursed and Phases I and II of the Project have been
Substantially
Completed and such principal payments have caused the remaining
Outstanding Loan
Amount to be less than the then-current Guaranteed Amount; or
(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 and
under that certain Non-Recourse Exception Guaranty Agreement of
even date
herewith made by Guarantor, in favor of Administrative Agent, that
certain
Completion and Payment Guaranty 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. Guarantor's obligations shall not be affected, impaired,
lessened or
released by loans, credits or other financial accommodations now
existing or
hereafter advanced by Administrative Agent or any Lender to
Borrower in excess
of the Guaranteed Amount.
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 Facility.
2.
In the event of any default by Borrower in making payment of
the
Facility Indebtedness or, in performance of the Phase III Purchase
Obligations,
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 or the holder of a Note, to pay the Facility
Indebtedness,
subject to the limitations set forth in Paragraph 1, and to perform
all the
Phase III Purchase Obligations, 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,
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