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Limited Guaranty, Dated As of June 3, 2008, BY Glimcher Properties Limited Partnership In Favor of E

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Sectors: Real Estate
Governing Law: California , View California State Laws
Effective Date: June 03, 2008
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LIMITED GUARANTEE


GUARANTEE (this "Guarantee") made as of the 3rd day of June, 2008 by GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, having an office at 180 E. Broad Street, 21st Floor, Columbus, Ohio 43215 ("Guarantor"), in favor of EUROHYPO AG, NEW YORK BRANCH, having its principal office at 1114 Avenue of the Americas, New York, New York 10036, as Administrative Agent for the lenders referred to below (in such capacity, together with its successors in such capacity, the "Administrative Agent").


W I T N E S S E T H:


WHEREAS, PUENTE HILLS MALL, LLC, a Delaware limited liability company (the "Borrower"), certain lenders (collectively, the "Lenders") and the Administrative Agent are parties to a Loan Agreement dated as of the date hereof (said Loan Agreement, as modified, amended, supplemented and in effect from time to time, being herein called the "Loan Agreement"; and, except as otherwise herein expressly provided, all terms defined in the Loan Agreement are being used herein as defined therein), which Loan Agreement provides, among other things, for Loans to be made by the Lenders to the Borrower in an aggregate principal amount not exceeding $90,000,000.00 to refinance the property known as Puente Hills Mall located in Industry, California, such Loans to be (i) evidenced by, and repayable with interest thereon in accordance with, various Notes to be executed and delivered to the respective order of the Lenders and (ii) secured by, among other things, the Mortgage;


WHEREAS, Guarantor owns directly or indirectly, certain ownership interests in the Borrower and as a result shall directly benefit from the making of the Loans by the Lenders to the Borrower; and


WHEREAS, the Lenders are unwilling to make the Loans unless this Guarantee is executed by the Guarantor and delivered to the Administrative Agent and the Lenders.


NOW, THEREFORE, in order to induce the Lenders to make the Loans, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees to guaranty the Guaranteed Obligations (as hereinafter defined) upon the following terms:


Section 1. Guarantee.


1.01. Guarantee. a) Guarantor hereby absolutely, unconditionally and irrevocably assumes liability for, hereby guarantees payment to the Administrative Agent (on behalf of the Lenders) of, and agrees to pay, protect, indemnify, defend and save the Administrative Agent and Lenders harmless from and against, any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses), whether arising in equity or at law, contract or tort or otherwise, causes of action, suits, claims, demands and judgments of any nature or description whatsoever which may at any time be imposed upon, incurred by or awarded against the Administrative Agent or any of the Lenders as a result of


(i) commission of a criminal act by Borrower or any Borrower Party, (ii) failure by Borrower or any Borrower Party to comply with the provisions of the Loan Documents prohibiting a transfer (as defined in Section 9.1 of the Loan Agreement) or Change of Control of any Person; (iii) misappropriation of any cash flow or other revenue derived from or in respect of the Project by Borrower or any Borrower Party, including security deposits, insurance proceeds, condemnation awards, or any rental, sales or other income derived directly or indirectly from the Project, or the misapplication of any of the foregoing sums, in either event, in contravention of any provision of the Loan Agreement or the other Loan Documents; (iv) intentional destruction or removal of fixtures or personal property securing the Loans by Borrower or any Borrower Party unless replaced by items of equal value and utility; (v) misapplication or misappropriation of funds disbursed from the Security Accounts by Borrower or any Borrower Party; (vi) commission of waste to or of the Project or any portion thereof by Borrower or any Borrower Party or failure by Borrower or any Borrower Party to maintain the Project in the manner required by the Loan Documents; (vii) failure to maintain the insurance coverage required by the Loan Documents by Borrower or any Borrower Party; (viii) failure to pay taxes, assessments and any other charges, including, without limitation, charges for labor or materials, which could result in liens against any portion of the Project by Borrower or any Borrower Party; (ix) willful misconduct by Borrower or any Borrower Party; (x) any material litigation against Administrative Agent or any of the Lenders arising from the Project, unless the same results solely from Administrative Agent's or any Lender's gross negligence or willful misconduct, in which case the party to whom the gross negligence or willful misconduct is attributable (but not any other party) shall not be entitled to the indemnification provided for hereunder to the extent of such gross negligence or willful misconduct; (xi) the breach of any terms or covenants in the Loan Agreement or Loan Documents relating to the Employee Retirement Income Security Act of 1974, as amended, by Borrower or any Borrower Party; (xii) Borrower's or any Borrower Party's failure to pay any mortgage recording or similar taxes required to be paid by any Person in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents; (xiii) Borrower's or any Borrower Party's failure to pay for any loss, liability or expense (including attorneys' fees) incurred by Administrative Agent or any Lender arising out of any claim or allegation made by Borrower or any Borrower Party, their respective successors or assigns, or any creditor of Borrower or any Borrower Party, that the Loan Agreement or the transactions contemplated by the Loan Documents establish a joint venture, partnership or other similar arrangement between Borrower or any Borrower Party and Administrative Agent or any Lender; (xiv) any brokerage commission or finder's fees claimed in connection with the transactions contemplated by the Loan Documents; (xv) any amount due pursuant to Section 2.9(5) of the Loan Agreement; (xvi) failure or inability of Guarantor to pay its debts as they become due; (xix) the occurrence of any of the actions or events described in Section 1.01(d)(B) below; (xx) any matter listed on Schedule 7.3 to the Loan Agreement; and (xxi) Guarantor's failure to fully comply with its obligations under Section 1.01(c) below.


(b) Guarantor hereby absolutely, unconditionally and irrevocably guarantees to the Administrative Agent and all Affiliates thereof all of the obligations of the Borrower, to the Administrative Agent or its Affiliate under any Hedge Agreement now or hereafter entered into between the Borrower and the Administrative Agent or its Affiliate, in strict accordance with the terms of the Hedge Agreement, as the same may be amended, extended, and/or renewed, whether such obligations are direct or indirect, absolute or contingent, due or to become due, now existing or hereinafter incurred, or otherwise.


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(c) Guarantor hereby absolutely, unconditionally and irrevocably agrees to pay to Borrower and any Affiliate of Borrower (or cause to be paid to Borrower and each Affiliate of Borrower pursuant to a capital contribution or otherwise), an amount equal to any and all liabilities, obligations, losses, damages, costs and expenses incurred by Borrower or any of its Affiliates in connection with or as a result of any matter listed on Schedule 7.3 to the Loan Agreement, such amounts to be paid from time to time promptly upon incurrence thereof by Borrower or such Affiliates.


(d) Notwithstanding anything to the contrary herein or in any of the Loan Documents, (A) the Administrative Agent and the Lenders shall not be deemed to have waived any right which the Administrative Agent and the Lenders may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Federal Bankruptcy Code to file a claim for the full amount of the Loans or to require that all collateral shall continue to secure all of the Loans owing to the Administrative Agent and the Lenders in accordance with the Loan Documents, and (B) the Guarantor hereby absolutely, unconditionally and irrevocably guarantees the payment to the Administrative Agent (on behalf of the Lenders) of the Loans and all obligations of the Borrower under the Loan Documents in the event that: (i) Borrower engages in fraud or intentional misrepresentation or inaccurate certification in connection with the Loan Documents or the Loans; (ii) Borrower files a voluntary petition under the Federal Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iii) Guarantor, any Affiliate of Borrower or Guarantor, any other Person that owns any interest, either direct or indirect, in Borrower or any Affiliate thereof, or any officer, director, or representative of Borrower, files or joins in the filing of, or solicits or acts in concert with, or colludes or conspires with petitioning creditors with respect to, an involuntary petition against Borrower under the Federal Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iv) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Federal Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (v) Guarantor, any Affiliate of Borrower or Guarantor, any other Person that owns an interest, either direct or indirect, in Borrower or any Affiliate thereof, or any officer, director, or representative of Borrower, consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Project or consents to, acquiesces in or joins in any action opposing a motion by Lender for relief from any stay or injunction entered under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (vi) Borrower makes an assignment for the benefit of creditors, or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (vii) Borrower or any Borrower Party violates any of the provisions set forth in the definition of Single Purpose Entity; or (viii) Borrower or any Borrower Party interferes with the Administrative Agent's (or the Lenders') exercise of its rights under any of the Loan Documents.


The foregoing obligations guaranteed pursuant to this Section 1.01 are, collectively, the "Guaranteed Obligations". The Guarantor hereby further agrees that if the Borrower shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantor will immediately pay the same, without any demand or notice whatsoever. All payments by the Guarantor on account of this Guarantee shall be paid in Dollars. Each and every default under the Loan Documents shall give rise to a separate cause of action hereunder by Administrative Agent and Lenders and separate suits may be brought hereunder as each such cause of action arises.


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1.02. Obligations Unconditional. The obligations of the Guarantor under this Guarantee are absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of the Loan Documents, or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guaranty of or security for any of the Guaranteed Obligations or the Loans, and, to the fullest extent permitted by Applicable Law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 1.02 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances and shall not be released, discharged or in any way affected or impaired by any thing, event, happening, matter, circumstance or condition whatsoever (whether or not the Guarantor shall have any knowledge or notice thereof or shall consent thereto). In furtherance of the foregoing and without limiting the generality thereof, the Guarantor agrees as follows:


(a) This Guarantee is a guaranty of payment and performance when due and not of collection.


(b) The obligations of the Guarantor hereunder are independent of the obligations of the Borrower or the Guarantor under the other Loan Documents to which they are a party and the obligations of any other guarantor of the obligations of the Borrower under the Loan Documents, and a separate action or actions may be brought and prosecuted against the Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.


(c) Payment, performance or completion by the Guarantor, or any other guarantor, of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge the Guarantor's liability for any portion of the Guaranteed Obligations which has not been paid, performed or completed. Without limiting the generality of the foregoing, if the Administrative Agent (or any of the Lenders) is awarded a judgment in any suit brought to enforce the Guarantor's covenant to pay, perform or complete a portion of the Guaranteed Obligations, such judgment shall not be deemed to release the Guarantor from its covenant to pay, perform or complete the portion of the Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by the Guarantor, limit, affect, modify or abridge the Guarantor's liability hereunder in respect of the Guaranteed Obligations.


(d) The Administrative Agent on behalf of the Lenders (subject to the terms of the Loan Documents), upon such terms as they deem appropriate, without notice or demand and without affecting the validity or enforceability of this Guarantee or giving rise to any reduction, limitation, impairment, discharge or termination of the Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment or performance under the Loan Documents pursuant to the terms thereof, (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or


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substitutions for, the Guaranteed Obligations or any Loan Document and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of any of the Borrower's obligations under the Loan Documents and take and hold security for the payment or performance of this Guarantee or the Loan Documents; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment or performance of the Borrower's obligations under the Loan Documents, any other guaranties of the Loans, or any other obligation of any Person (including any other guarantor) with respect to the Loans; (v) enforce and apply any security now or hereafter held by or for the benefit of the Administrative Agent and the Lenders in respect of this Guarantee or the Loans and direct the order or manner of sale thereof, and to bid at any such sale, or exercise any other right or remedy that the Administrative Agent or the Lenders may have against any such security, in each case as in its discretion may determine consistent with any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of Guarantor against the Borrower or any security for the Guaranteed Obligations; (vi) apply any payments or recoveries from the Borrower, Guarantor or any other sources, and any proceeds of any security, to the Guaranteed Obligations in such manner, order and priority as the Administrative Agent may elect (whether or not those obligations are guaranteed by this Guarantee or secured at the time of the application); and (vii) exercise any other rights available to it under the Loan Documents. The Guarantor authorizes the Administrative Agent at any time in its discretion to direct the order and manner of any sale of all or any part of any security now or later held for the Guaranteed Obligations or this Guarantee, and to bid to at any such sale, to apply any payments or recoveries from the Borrower, the Guarantor or any other source, and any proceeds of any security, to the Guaranteed Obligation in such manner, order and priority as the Administrative Agent may elect (whether or not those obligations are guaranteed by this Guarantee or secured at the time of the application). The Administrative Agent may take any of the foregoing actions upon any terms and conditions as the Administrative Agent may elect, without giving notice to the Guarantor or obtaining the consent of the Guarantor and without affecting the liability of the Guarantor to the Administrative Agent or the Lenders.


(e) Except as expressly provided in Sections 1.02(c) and 1.02(d), this Guarantee and the obligations of the Guarantor hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the outstanding Loans, together with all other amounts due to the Administrative Agent and the Lenders under the Loan Documents and the termination of any remaining Commitments or performance in full of the Guaranteed Obligations), including, without limitation, the occurrence of any of the following, whether or not the Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Loan Documents, at law, in equity or otherwise) with respect to the Guaranteed Obligations or the Loan Documents, or with respect to any other guaranty of or security for the payment or performance of the Guaranteed Obligations or the Loans; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to any Event of


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Default) of the Loan Documents, the material agreements, the Sources and Uses Budget or of any other guaranty or security for the Guaranteed Obligations or the Loans, in each case whether or not in accordance with the terms of the Loan Documents or any agreement relating to such other guaranty or security; (iii) any Loan Document, at any time being found to be illegal, invalid or unenforceable with respect to the Borrower; (iv) the application of payments received from any source (other than payments received pursuant to this Guarantee or the other Loan Documents or from the proceeds of any security for the Guaranteed Obligations or the Notes except to the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations or the Notes) to the payment of indebtedness other than the Loans, even though the Administrative Agent and/or the Lenders might have elected to apply such payment to any part or all of the Loans; (v) the Administrative Agent's consent to the change, reorganization or termination of the ownership structure or existence of the Borrower or any of its Affiliates and to any corresponding restructuring of the Loans, including, without limitation, the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Loans, including, without limitation, the Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims that the Borrower may assert against the Administrative Agent or any of the Lenders in respect of the Loans, including, without limitation, the failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury, other than payment or performance of such obligations under the Loan Documents to the extent encompassed in the Guaranteed Obligations; (viii) the acquisition or transfer of title to the Project to the Administrative Agent, any of the Lenders, any Affiliate of the Lenders or any designee of the Administrative Agent or the Lenders (including, without limitation, any purchaser through foreclosure, deed in lieu or otherwise); (ix) any act or event which might otherwise discharge, reduce, limit or modify the Guarantor's obligations under this Guarantee; (x) any waiver, extension, modification, forbearance, delay or other act or omission of the Administrative Agent or the Lenders, or their failure to proceed promptly or otherwise as against the Borrower, the Guarantor or any security; (xi) any action, omission or circumstance which might increase the likelihood that the Guarantor may be called upon to perform under this Guarantee or which might affect the rights or remedies of the Guarantor as against the Borrower; (xii) any dealings occurring at any time between the Borrower and the Administrative Agent or the Lenders, whether relating to the Guaranteed Obligations or otherwise; and (xiii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of the Guarantor as an obligor in respect of the Guaranteed Obligations.


(f) Whether or not Guarantor's obligations under this Guarantee are subject to any maximum dollar amount or any other limitation expressly set forth in this Guarantee, Guarantor's liability under this Guarantee shall not be impaired, reduced or affected by reason of Administrative Agent's and/or any Lender's application of any payments received from any source (i) to the payment of any obligation or indebtedness of Borrower which is not part of the Guaranteed Obligations, even though Administrative Agent and/or any such Lender might lawfully have elected to apply such payment to any part or all of the Guaranteed Obligations, it being the intention of the parties that, notwithstanding any act or thing which might otherwise operate as a legal or equitable full or partial discharge of a surety, the Guarantor shall remain fully liable for the payment of all of the Guaranteed Obligations until the Loans and all other Guaranteed Obligations have been indefeasibly paid and performed in full; provided that the foregoing shall not be construed as an authorization to Administrative Agent and/or any Lender to apply to any such other obligation of the Borrower the


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amount of an indefeasible payment that has been made by the Guarantor to Administrative Agent and/or any Lender if and to the extent that such payment is made by the Guarantor with express written instructions that such payment be applied directly in reduction of the Guaranteed Obligations; or (ii) to the payment of any of the Guaranteed Obligations (whether or not such payment might reduce the outstanding amount of the Guaranteed Obligations to a sum that is less than the maximum dollar liability, if any, of the Guarantor expressly set forth herein), unless and until such payment shall have become indefeasible, the amount so paid shall no longer be available for future advance under the Loans, and the Loans and all other Guaranteed Obligations shall have been indefeasibly paid and performed in full, it being the intention of the parties that, notwithstanding any payments applied in reduction of the Guaranteed Obligations from any source, the Guarantor shall be and remain fully liable for the payment of all of the Guaranteed Obligations until the Loans and all other Guaranteed Obligations have been indefeasibly paid and performed in full and the Lenders shall have no further or continuing obligation to make any additional advances of the Loans to Borrower. As used herein, an "indefeasible" payment shall mean and refer to a payment that is no longer subject to potential disaffirmance, impairment, set aside, offset, recoupment, defeasance, recovery, disallowance, or recapture pursuant to the provisions of any federal or state law, regulation or order applicable to or governing creditors' rights, including without limitation Title 11 of the United States Code, as amended, either by reason of the passage of time following such payment or the final judgment of a court of competent jurisdiction establishing the unassailable right of the party receiving such payment to retain such payment without reduction, offset, or other impairment.


1.03. Waivers by the Guarantor. The Guarantor hereby waives, for the benefit of the Administrative Agent and the Lenders:


(a) any right to require the Administrative Agent or the Lenders, as a condition of payment or performance or completion by the Guarantor, to (i) cause a marshalling of Borrower's or any other Person's assets or to cause Administrative Agent or the Lenders to proceed against the Borrower, any other guarantor of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held from the Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any deposit account or credit on the books of the Lenders in favor of the Borrower or any other Person, or (iv) pursue any other remedy in the power of the Administrative Agent or any of the Lenders whatsoever;


(b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Borrower, including, without limitation, any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument related thereto or by reason of the cessation of the liability of the Borrower from any cause other than payment, performance and completion in full of the Guaranteed Obligations;


(c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;


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(d) any defense based upon the Administrative Agent's or any of the Lender's errors or omissions in the administration of the Loans, including, without limitation, the Guaranteed Obligations; provided, however, the waiver set forth in this clause (d) shall not operate as a waiver of any defense based on Administrative Agent's or any Lender's gross negligence or willful misconduct, in which case such waiver shall not apply to any such defense against claims by the party to whom the gross negligence or willful misconduct is attributable (but without limiting any such waiver as it applies to any claim by any other party) to the extent of such gross negligence or willful misconduct;


(e) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Guarantee and any legal or equitable discharge of the Guarantor's obligations hereunder (other than payment, performance and completion of the Guaranteed Obligations or the Loans in full), (ii) the benefit of any statute of limitations affecting Guarantor's liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims and (iv) promptness, diligence and any requirement that the Administrative Agent or any of the Lenders protect, secure, perfect or insure any security interest or lien or any property subject thereto;


(f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, notices of default under the other Loan Documents or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to the Borrower and any right to consent to any thereof;


(g) any release, discharge, modification, impairment or limitation of the liability of the Borrower to the Administrative Agent or the Lenders, whether consented to by the Administrative Agent or the Lenders, consensual or arising by operation of law or any proceedings in bankruptcy or reorganization, or from any other cause;


(h) any defense based on any rejection or disaffirm
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