EXHIBIT 10.127
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
FOR
VALUE RECEIVED and for the purpose of inducing U.S. BANK
NATIONAL
ASSOCIATION, a national banking association, having an office at 10
West Broad
Street, 12th Floor, Columbus, Ohio 43215, individually ("U.S.
Bank") and in its
capacity as administrative agent (the "Administrative Agent") for
itself and the
lenders under the Loan Agreement, defined below, together with
their respective
successors and assigns (collectively, the "Lenders"), to make a
loan in the
aggregate principal amount of Forty-Two Million Two Hundred Fifty
Thousand
Dollars ($42,250,000.00) to CATALINA PARTNERS, L.P., a Delaware
limited
partnership, having an office at 180 East Broad Street, Columbus,
Ohio 43215
("Borrower"), from which the undersigned expects to derive direct
monetary
benefit, the undersigned, GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware
limited partnership ("Guarantor") agrees for the benefit of U.S.
Bank as
follows:
1.
Guarantor unconditionally and absolutely guarantees to
Administrative
Agent and Lenders the full and prompt payment, whether at stated or
accelerated
maturity or otherwise, of any and all principal, interest, damages,
losses,
costs, charges, expenses and liabilities, whether fixed or
contingent
(collectively the "Indebtedness") and the complete, faithful and
punctual
performance of any and all Rate Management Obligations (as defined
in the Loan
Agreement) and any and all other obligations (collectively the
"Obligations") of
Borrower to any of the Lenders and/or Administrative Agent under
the terms and
conditions of (a) the Loan Agreement, of even date herewith, by and
between
Borrower and Administrative Agent and Lenders ("Loan Agreement")
pertaining to
such loan; (b) one or more Notes, of even date herewith, made by
Borrower to
Lenders in the aggregate principal amount of Forty-Two Million Two
Hundred Fifty
Thousand Dollars ($42,250,000.00) and any and all renewals,
amendments,
modifications, reductions and extensions thereof and substitutions
therefor
(collectively the "Notes") evidencing such loan; (c) the Open-End
Fee Mortgage,
Leasehold Mortgage, Assignment of Rents and Security Agreement and
Fixture
Filing of even date herewith, granted by Borrower to Administrative
Agent (the
"Mortgage") securing such loan, said Mortgage being a lien upon
real property
located in the County of Dauphin and Commonwealth of Pennsylvania
and being more
particularly described in said Mortgage (hereinafter referred to as
the
"Premises"); (d) any and all Rate Management Agreements (as defined
in the Loan
Agreement); and (e) any other instrument, document, certificate or
affidavit
heretofore, now or hereafter given by Borrower evidencing or
securing all or any
part of the foregoing (the same, together with the Loan Agreement,
the Notes and
Mortgage, collectively the "Loan Documents").
Notwithstanding the foregoing or any other provision of this
Guaranty to the
contrary, the maximum liability of Guarantor hereunder shall be as
follows:
(a)
twenty percent (20.0%)
(the "Percentage Guaranty") of the outstanding
principal and interest balances due under any of the Notes and
the
Percentage Guaranty of all costs, late charges and other amounts
due
and owing to Administrative Agent under the Loan Documents, as
determined by Administrative Agent as of the date of the
acceleration
of any of the Notes;
(b)
one hundred percent
(100%) of all interest, late charges, costs and
other
amounts owing to Administrative Agent and/or any of the Lenders
accruing after the date of acceleration; and
(c)
one hundred percent
(100%) of any loss, expenses or damages suffered
by Administrative Agent and/or any of the Lenders as a result of
any
one or more of the following:
(i) Borrower or any affiliate or employee of Borrower
misappropriates any rents or other income or collateral
proceeds
including but not limited to insurance or condemnation proceeds
or awards relating to the Premises ;
(ii) Borrower or any affiliate or employee of Borrower fails to
apply or pay over any tenant security deposits or other
refundable deposits in accordance with the terms of the
applicable lease or other agreement or any Loan Document;
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(iii) Borrower or any affiliate or employee of Borrower
receives
rents or other payments from tenants more than one month in
advance and fail to apply them in accordance with the Loan
Documents;
(iv) following the occurrence of an Event of Default (as
defined
in the Loan Agreement), Borrower or any affiliate or employee
of
Borrower (including Borrower in its capacity as a debtor or
debtor in possession in a bankruptcy proceeding) fails either
to
apply rents or other Premises income, whether collected before
or
after such event of default, to the ordinary, customary, and
necessary expenses of operating the Premises or, upon demand,
to
deliver such rents or other Premises income to Administrative
Agent;
(v) waste is committed on the Premises during a period when
Borrower or any affiliate, agent, or employee of Borrower is in
possession thereof ("waste" meaning the diminution in the
Premises' value resulting from Borrower's wrongful removal or
destruction of any portion of the Premises);
(vi) any damage to the Premises, Administrative Agent and/or
any
of the Lenders is caused as a result of the intentional
misconduct of Borrower;
(vii) Borrower fails, in accordance with the terms of the Loan
Documents, to maintain insurance or to pay taxes, assessments,
or
other liens or claims that could create liens affecting the
Premises (unless Administrative Agent is escrowing funds
therefor
and fails to make such payments or has taken possession of the
Premises following an event of default, has received all rents
from the Premises applicable to the period for which such
insurance, taxes or other items are due, and thereafter fails
to
make such payments);
(viii) there is any fraud or material misrepresentation by
Borrower or any of its affiliates, any guarantor, any
indemnitor,
employee, or other person with actual or apparent authority to
make statements or representations on behalf of Borrower, any
affiliate of Borrower, or any guarantor or indemnitor
("apparent
authority" meaning such authority as the principal knowingly or
negligently permits the agent to assume, or which he holds the
agent out as possessing); or
(ix) Borrower fails, following an Event of Default (as defined
in
the Loan Agreement), to deliver to Administrative Agent on
demand
all security deposits, books and records relating to the
Premises
and in the possession or control of Borrower or any affiliate
or
employee of Borrower.
(d)
any and all costs of
Administrative Agent and/or any of the Lenders
incurred in connection with collecting any amounts due
hereunder,
including, but not limited to reasonable attorney fees and
costs.
Guarantor further agrees the amount guaranteed hereunder shall not
be reduced by
payments made by Borrower or by proceeds realized by Administrative
Agent and/or
any of the Lenders from sale of the Premises or any other
collateral securing
the Indebtedness, by foreclosure or otherwise, until such time as
the
Indebtedness has been paid in full. Administrative Agent shall have
the right to
determine, in Administrative Agent's discretion, the application of
all such
payments or proceeds.
2.
Guarantor agrees that if any of the Indebtedness shall not be paid
or
any of the Obligations shall not be performed by Borrower in
accordance with the
terms and conditions of the Loan Documents, Guarantor shall
immediately so pay
such Indebtedness and so perform such Obligations and the same
shall become the
direct and primary indebtedness and obligation of Guarantor.
Guarantor shall be
liable for the payment of the Indebtedness and the performance of
the
Obligations as fully and to the same effect as if Guarantor was the
maker or
principal obligor under the Loan Documents.
2
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3.
The liability of Guarantor hereunder is independent of the
Indebtedness
and Obligations of Borrower and a separate action or actions may be
brought and
prosecuted against Guarantor, regardless of whether any action is
brought
against Borrower or whether Borrower be joined in any such action
or actions.
There shall be no duty or obligation of Administrative Agent and/or
any of the
Lenders to exhaust any remedy in law or in equity against Borrower
or any
security before bringing suit or instituting proceedings of any
kind against
Guarantor.
4.
Guarantor represents that, at the time of the execution and
delivery of
this Guaranty, nothing exists to impair the liability of Guarantor
hereunder or
the immediate effectiveness of this Guaranty.
5.
The liability of Guarantor hereunder shall continue until full
payment
of the Indebtedness and full performance of the Obligations, it
being the
intention hereof that Guarantor shall remain liable for the payment
of the
Indebtedness and for the performance of the Obligations,
notwithstanding any
act, omission or event which might, but for the provisions hereof,
otherwise
operate as a legal or equitable discharge of Guarantor. Without
limiting the
generality of the foregoing, the liability of Guarantor hereunder
shall not be
affected or impaired on account of the following events:
(a)
any execution of any guaranty, whether now or hereafter, or any
invalidity or unenforceability of any such guaranty;
(b)
any impairment, modification, release, discharge or limitation
of
liability of Borrower, or any stay of lien enforcement proceedings
against
any
of the same or their respective property, resulting from any
receivership, insolvency, bankruptcy, dissolution, merger,
reorganization
or
other similar proceeding, under any present or future provision of
the
United States Bankruptcy Code or any other similar federal or state
law or
under the decision of any court;
(c)
any voluntary or involuntary liquidation, sale or other disposition
of
all
or substantially all of the assets of Borrower;
(d)
any determination that Borrower is not liable for the payment of
the
Indebtedness or the performance of the Obligations because the act
creating
the
Indebtedness or Obligations is ultra vires, because the officers
or
persons creat
