LIMITED GUARANTY AND SURETYSHIP
AGREEMENT
THIS LIMITED
GUARANTY AND SURETYSHIP AGREEMENT (together with all extensions,
amendments, renewals, substitutions and replacements hereto and
hereof the " Guaranty Agreement ") is made as of October 8,
2008, by GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership (the " Guarantor "), to and for the
benefit of FIRST COMMONWEALTH BANK (the " Bank
").
WITNESSETH:
WHEREAS,
pursuant to that certain Loan Agreement dated as of even date
herewith (the Loan Agreement, together with all extensions,
renewals, amendments, substitutions and replacements thereto and
thereof is referred to herein as the " Agreement ") by and
between Morgantown Mall Associates Limited Partnership, an Ohio
limited partnership (the " Borrower ") and the Bank, the
Bank agreed to extend to the Borrower a term loan in a principal
amount not to exceed $40,000,000.00, upon the terms and conditions
set forth in the Agreement (the " Loan "), relating to
certain real property known as the Morgantown Mall and located in
Westover Township, Monongalia County, West Virginia; and
WHEREAS, the
indebtedness of the Borrower to the Bank is evidenced by a Note, as
such term is defined in the Agreement, with interest at rates
provided in the Note and to be repaid at the times and places and
in the manner set forth in the Agreement and the Note, and
containing other terms and provisions; and
WHEREAS, as a
condition precedent to the Bank making the Loan to the Borrower,
the Bank has required that the Guarantor execute and deliver this
Guaranty Agreement to the Bank; and
WHEREAS, the
Guarantor has agreed to execute and deliver this Guaranty Agreement
to and for the benefit of the Bank, upon the terms and conditions
hereinafter set forth, having determined that the execution and
delivery of this Guaranty Agreement is in the Guarantor's best
interests and that the Guarantor will derive substantial benefit,
whether directly or indirectly, from the making of the
Loans.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in consideration for the Bank's
entering into the Agreement with the Borrower and making the Loans
to the Borrower, and intending to be legally bound hereby, the
Guarantor hereby agrees as follows:
1.
Recitals . The foregoing recitals are
hereby incorporated into and made a material part of this Guaranty
Agreement.
2.
Incorporation by Reference . The
Agreement, the Notes, and the other Loan Documents (as that term is
defined in the Agreement) are incorporated into this Guaranty
Agreement by this reference with the same force and effect as if
fully set forth herein.
3.
Defined Terms . All capitalized terms
used herein as defined terms which are not defined herein shall
have the meanings given them in the Agreement.
4.
Unconditional Guaranty . (i)
The Guarantor unconditionally, absolutely and irrevocably jointly
and severally guarantees, as primary obligor and not merely as
surety the timely payment in full of all of the Obligations (as
such term is defined in the Agreement), including but not limited
to the outstanding principal balance of the Loan and all accrued
and unpaid interest thereon, provided however , that
the obligations of the Guarantor under this Guaranty shall not
exceed $20,000,000.00 in the aggregate (the "Guaranty
Cap"). (ii) The above provisions of Subsection 4(i) to
the contrary notwithstanding, until all of the Obligations are paid
in full, the Guarantor unconditionally, absolutely and irrevocably
guarantees, as a primary obligor, and not merely as surety: (a) any
amounts received by the Borrower and not paid to the Bank arising
out of security deposits not returned to the depositing party;
rents received or held after an Event of Default; rents prepaid
more than one (1) month in advance relating to a period after the
occurrence of an Event of Default; condemnation awards or insurance
proceeds not applied as required by the Loan Documents; or (b)
losses arising due to fraud, material misrepresentation or bad
faith of the Borrower or the Guarantor; the Bank's reasonable costs
and expenses in connection with the enforcement or collection of
the Guarantor's Obligations; losses, claims or causes of action
under the Environmental Indemnity Agreement; intentional waste of
all or a part of the Real Estate Collateral.
The obligations
of the Guarantor set forth in the immediately preceding paragraphs
are hereinafter collectively referred to as the " Guarantor's
Obligations ".
If the Borrower
defaults under any Obligations and the Bank has elected to exercise
its remedies under Section 7.2 of the Agreement, the Guarantor will
pay the Guarantor’s Obligations to the Bank. Until
the Obligations are indefeasibly paid in full, the Guarantor's
Obligations shall not be reduced in any manner whatsoever by any
amounts which the Bank may realize after maturity of the
Obligations, by acceleration or otherwise, as a result of payments
made by or on behalf of the Borrower or by or on behalf of any
other person or entity other than the Guarantor primarily or
secondarily liable for the Obligations or any part thereof, or
otherwise credited to the Borrower or such person or entity, or as
a result of the exercise of the Bank's rights with respect to any
collateral for the Obligations or any part
thereof. Payments made to the Bank by the Guarantor
(other than, directly or indirectly, from collateral or other
persons or entities liable for any portion of the Obligations)
after maturity of the Obligations, by acceleration or otherwise,
shall reduce the Guarantor's Obligations.
5.
Joint and Several Obligations . The
Guarantor's Obligations hereunder, are joint and several, both
between each Guarantor and among any other guarantors
now or hereafter guaranteeing any obligations under the Loan
Documents, and are independent of the obligations of the
Borrower. A separate action or actions may be brought
and prosecuted against the Guarantor, whether or not action is
brought against the Borrower or any other guarantor or whether or
not the Borrower or any other guarantor is joined in such action or
actions.
6.
Not a Collection Guaranty . This Guaranty
Agreement is a guaranty of payment and not a guaranty of
collection. The Guarantor waives any right to require
the Bank at any time to (i) proceed against the Borrower or any
other guarantor now or hereafter guaranteeing any obligations under
the Loan Documents, (ii) proceed against or exhaust any security
for the Obligations, or (iii) pursue any other remedy in the Bank's
power whatsoever.
7.
Bank's Right to Deal With Obligations .
The Guarantor authorizes the Bank, without notice or demand and
without affecting the Guarantor's liability hereunder, from time to
time to (i) increase, enlarge, renew, compromise, extend,
accelerate or otherwise change the time for payment or the terms of
the Obligations or any part thereof, including but not limited to
increases or decreases of the principal amount of the Loans or the
rate of interest thereon, (ii) deal with the Obligations and any
security for the Obligations in any manner it may see fit, (iii)
accept partial payments on account of the Obligations and (iv)
demand or receive additional security and/or other guaranties for
the Obligations. The Guarantor acknowledges that the
Bank may now have and may in the future have certain security for
and other guaranties of all or any part of the Obligations, but it
is specifically understood and agreed by the Guarantor that neither
the execution and delivery of this Guaranty Agreement nor the
holding of any security or any other guaranty by the Bank shall at
any time or in any respect operate to prevent or hinder the Bank
from resorting first to such other security and/or guaranty, or
first to this Guaranty Agreement, or first from time to time to
both. In addition, the Bank may from time to time as it
sees fit resort to this Guaranty Agreement without resorting to any
other security for and/or guaranty of the Obligations, or to all or
any part of any security and/or any other guaranty securing the
Obligations, without resorting to this Guaranty Agreement, and such
action on the Bank's part shall not in any respect be considered as
a waiver of any of the benefits or rights of the Bank relating to
this Guaranty Agreement or such other security and/or other
guaranties.
8.
Consent to Releases . The Guarantor
consents, without notice and without affecting the Guarantor's
liability hereunder, to the release of (i) all or any part of the
security for the Obligations, or the substitution of all or any
part of such security, (ii) any Person liable for all or any part
of the Obligations, and (iii) any other guarantor from the
Obligations, or portions thereof.
9.
Bankruptcy of Borrower . Neither the
Guarantor's obligations to make payment in accordance with the
terms of this Guaranty Agreement nor any remedy for the enforcement
hereof shall be impaired, modified, changed, released or limited in
any manner whatsoever by the Borrower's bankruptcy or by any
impairment, modification, change, release or limitation of (i) the
liability of any of the Borrower, any Person assuming the
obligations of the Borrower under any of the Loan Documents or the
Borrower's estate in bankruptcy or (ii) any remedy for the
enforcement of the Obligations, either of which result from the
operation of any present or further provision of any bankruptcy
act, state or Federal law, common law or equitable cause or from
the decision of any court. The Guarantor agrees that to
the extent that the Borrower or any other Person liable for all or
any part of the Obligations makes a payment or payments to the
Bank, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be paid to a trustee,
receiver or any other Person under any bankruptcy act, state or
Federal law, common law or equitable cause, then to the extent of
such payment the Obligations or part thereof intended to be
satisfied shall be revived and continued in full force and effect
as if said payment had not been made.
10.
Continuing Nature of Guaranty . This
Guaranty Agreement shall continue in full force and effect until
all of the Obligations have been paid in full and the Bank has no
further obligations under the Loan Documents.
11.
Waiver of Guarantor's Defenses . (a) The
Guarantor waives all defenses based on suretyship. Until
all Obligations of the Borrower to the Bank shall have been paid in
full, even if such Obligations are in excess of the Guarantor's
liability hereunder, and the Bank has no further obligations under
the Loan Documents, the Guarantor waives (i) any right to enforce
any remedy which the Bank now has or may hereafter have against the
Borrower, (ii) any benefit of, and any right to participate in, any
security for the Obligations now or hereafter held by the Bank and
(iii) any right the Guarantor might otherwise have to the
marshalling of the assets of the Borrower. The Guarantor
also waives and renounces any and all homestead exemption rights
against the Obligations and also waives all presentments, demands
for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, notices of acceptance of this
Guaranty Agreement and any other notices of any kind.
(b) Without
limiting the foregoing, it is understood that repeated and
successive demands m
