Guaranty


    

      Exhibit
        10.121

      GUARANTY

      


      


      This
        Guaranty is made as of August 22, 2005 by Glimcher Realty Trust, a real estate
        investment trust organized under the laws of the State of Maryland
        ("Glimcher
        Trust")
        and
        Glimcher Properties Corporation, a Delaware corporation ("Glimcher
        Properties",
        and
        together with Glimcher Trust, collectively, the “Guarantors”),
        to
        and for the benefit of KeyBank National Association, individually (“KeyBank”)
        and as
        administrative agent (“Administrative
        Agent”)
        for
        itself and the lenders under the Credit Agreement (as defined below) and
        their
        respective successors and assigns (collectively, the “Lenders”).

       

      RECITALS

       

      A. Glimcher
        Properties Limited Partnership, a limited partnership organized under the
        laws
        of the State of Delaware (“Borrower”),
        and
        Guarantors have requested that the Lenders make a revolving credit facility
        available to Borrower in an aggregate principal amount of up to $300,000,000,
        subject to future increases to up to $400,000,000 (the “Facility”).

       

      B. The
        Lenders have agreed to make available the Facility to Borrower pursuant to
        the
        terms and conditions set forth in an Amended and Restated Credit 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 “Credit
        Agreement”).
        All
        capitalized terms used herein and not otherwise defined shall have the meanings
        ascribed to such terms in the Credit 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 and promissory notes
        in the principal amount, if any, of each Lender’s Loan 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 Credit Agreement, are collectively referred to herein
        as
        the “Notes”).

       

      D. Glimcher
        Properties is the sole general partner in the Borrower and Glimcher Trust
        is the
        owner of all of the stock of Glimcher Properties and certain of the limited
        partnership interests in the Borrower. Guarantors acknowledge that the extension
        of credit by the Administrative Agent and the Lenders to Borrower pursuant
        to
        the Credit Agreement will benefit Guarantors by enhancing the financial strength
        of the consolidated group of which Guarantors and Borrower are members. The
        execution and delivery of this Guaranty by Guarantors are conditions precedent
        to the performance by the Lenders of their obligations under the Credit
        Agreement.

       

      AGREEMENTS

       

      NOW,
        THEREFORE, Guarantors, 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 agree as
        follows:

       

      1. Guarantors
        absolutely, unconditionally, and irrevocably guaranty to each of the
        Lenders:

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (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 Credit Agreement, and the other
        Loan
        Documents;

       

      (b) the
        payment of all Enforcement Costs (as hereinafter defined in Paragraph 7
        hereof);
        and

       

      (c) the
        full,
        complete, and punctual observance, performance, and satisfaction of all of
        the
        obligations, duties, covenants, and agreements of Borrower under the Credit
        Agreement and the Loan Documents.

       

      All
        amounts due, debts, liabilities, and payment obligations described in
        subparagraphs (a) and (b) of this Paragraph 1
        are
        referred to herein as the “Facility
        Indebtedness.”
        All
        obligations described in subparagraph (c) of this Paragraph 1
        are
        referred to herein as the “Obligations.”

       

      2. In
        the
        event of any default by Borrower in making payment of the Facility Indebtedness,
        or in performance of the Obligations, as aforesaid, in each case beyond the
        expiration of any applicable grace period, Guarantors agree, on demand by
        the
        Administrative Agent or the holder of a Note, to pay all the Facility
        Indebtedness and to perform all the Obligations as are then or thereafter
        become
        due and owing or are to be performed under the terms of the Notes, the Credit
        Agreement, and the other Loan Documents.

       

      3. Guarantors
        do 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 Guarantors
        may have
        against Borrower or which Guarantors 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, protest and notice of protest, diligence in collection and any
        and
        all formalities which otherwise might be legally required to charge Guarantors
        with liability, (iv) any failure by the Administrative Agent and the
        Lenders to inform Guarantors of any facts the Administrative Agent and the
        Lenders may now or hereafter know about Borrower, the Facility, or the
        transactions contemplated by the Credit Agreement, it being understood and
        agreed that the Administrative Agent and the Lenders have no duty so to inform
        and that Guarantors are fully responsible for being and remaining informed
        by
        Borrower of all circumstances bearing on the existence or creation, or the
        risk
        of nonpayment of the Facility Indebtedness or the risk of nonperformance
        of the
        Obligations, and (v) any and all right to cause a marshalling of assets
        of
        Borrower or any other action by any court or governmental body with respect
        thereto, or to cause the Administrative Agent and the Lenders to proceed
        against
        any other security given to a Lender in connection with the Facility
        Indebtedness or the Obligations. Credit may be granted or continued from
        time to
        time by the Lenders to Borrower without notice to or authorization from
        Guarantors, regardless of the financial or other condition of Borrower at
        the
        time of any such grant or continuation. The Administrative Agent and the
        Lenders
        shall have no obligation to disclose or discuss with Guarantors the Lenders’
        assessment of the financial condition of Borrower. Guarantors acknowledge
        that
        no representations of any kind whatsoever have been made by the Administrative
        Agent and the Lenders to Guarantors. No modification or waiver of any of
        the
        provisions of this Guaranty shall be binding upon the Administrative Agent
        and
        the Lenders except as expressly set forth in a writing duly signed and delivered
        on behalf of the Administrative Agent and the Lenders. Guarantors further
        agree
        that any exculpatory language contained in the Credit Agreement, the Notes,
        and
        the other Loan Documents shall in no event apply to this Guaranty, and will
        not
        prevent the Administrative Agent and the Lenders from proceeding against
        Guarantors to enforce this Guaranty.

       

      
        
          
          

        

        
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      4. Guarantors
        further agree that Guarantors’ liability as guarantor shall in no way be
        impaired by any renewals or extensions which may be made from time to time,
        with
        or without the knowledge or consent of Guarantors of the time for payment
        of
        interest or principal under a Note or by any forbearance or delay in collecting
        interest or principal under a Note, or by any waiver by the Administrative
        Agent
        and the Lenders under the Credit Agreement, or any other Loan Documents,
        or by
        the Administrative Agent or the Lenders’ failure or election not to pursue any
        other remedies they may have against Borrower, or by any change or modification
        in a Note, the Credit Agreement, or any other Loan Documents, or by the
        acceptance by the Administrative Agent or the Lenders of any security or
        any
        increase, substitution or change therein, or by the release by the
        Administrative Agent and the Lenders of any security or any withdrawal thereof
        or decrease therein, or by the application of payments received from any
        source
        to the payment of any obligation other than the Facility Indebtedness, even
        though a Lender might lawfully have elected to apply such payments to any
        part
        or all of the Facility Indebtedness, it being the intent hereof that Guarantors
        shall remain liable as principal for payment of the Facility Indebtedness
        and
        performance of the Obligations until all indebtedness has been paid in full
        and
        the other terms, covenants and conditions of the Credit Agreement, and other
        Loan Documents and this Guaranty have been performed, notwithstanding any
        act or
        thing which might otherwise operate as a legal or equitable discharge of
        a
        surety. Guarantors further understand and agree that the Administrative Agent
        and the Lenders may at any time enter into agreements with Borrower to amend
        and
        modify a Note, the Credit Agreement or any of the other Loan Documents, or
        any
        thereof, and may waive or release any provision or provisions of a Note,
        the
        Credit Agreement, or any other Loan Document and, with reference to such
        instruments, may make and enter into any such agreement or agreements as
        the
        Administrative Agent, the Lenders and Borrower may deem proper and desirable,
        without in any manner impairing this Guaranty or any of the Administrative
        Agent
        and the Lenders’ rights hereunder or any of Guarantors’ obligations
        hereunder.

       

      5. This
        is
        an absolute, unconditional, complete, present and continuing guaranty of
        payment
        and performance and not of collection. Guarantors agree that their obligations
        hereunder shall be joint and several with each other and with any and all
        other
        guarantees given in connection with the Facility from time to time. Guarantors
        agree that this Guaranty may be enforced by the Administrative Agent and
        the
        Lenders without the necessity at any time of resorting to or exhausting any
        security or collateral, if any, given in connection herewith or with a Note,
        the
        Credit Agreement, or any of the other Loan Documents or by or resorting to
        any
        other guaranties, and Guarantors hereby waive the right to require the
        Administrative Agent and the Lenders to join Borrower in any action brought
        hereunder or to commence any action against or obtain any judgment against
        Borrower or to pursue any other remedy or enforce any other right. Guarantors
        further agree that nothing contained herein or otherwise shall prevent the
        Administrative Agent and the Lenders from pursuing concurrently or successively
        all rights and remedies available to them at law and/or in equity or under
        a
        Note, the Credit Agreement or any other Loan Documents, and the exercise
        of any
        of their rights or the completion of any of their remedies shall not constitute
        a discharge of any of Guarantors’ obligations hereunder, it being the purpose
        and intent of Guarantors that the obligations of such Guarantors hereunder
        shall
        be primary, absolute, independent and unconditional under any and all
        circumstances whatsoever. Neither Guarantors’ obligations under this Guaranty
        nor any remedy for the enforcement thereof shall be impaired, modified, changed
        or released in any manner whatsoever by any impairment, modification, change,
        release or limitation of the liability of Borrower under a Note, the Credit
        Agreement or any other Loan Document or by reason of Borrower’s bankruptcy or by
        reason of any creditor or bankruptcy proceeding instituted by or against
        Borrower. This Guaranty shall continue to be effective and be deemed to have
        continued in existence or be reinstated (as the case may be) if at any time
        payment of all or any part of any sum payable pursuant to a Note, the Credit
        Agreement or any other Loan Document is rescinded or otherwise required to
        be
        returned by the payee upon the insolvency, bankruptcy, or reorganization
        of
        the payor, all as though such payment to such Lender had not been made,
        regardless of whether such Lender contested the order requiring the return
        of
        such payment. The obligations of Guarantors pursuant to the preceding sentence
        shall survive any termination, cancellation, or release of this
        Guaranty.

       

      
        
          
          

        

        
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      6. This
        Guaranty shall be assignable by a Lender to any assignee of all or a portion
        of
        such Lender’s rights under the Loan Documents.

       

      7. If:
        (i) this Guaranty, a Note, or any of the Loan Documents are placed
        in the
        hands of an attorney for collection or is collected through any legal
        proceeding; (ii) an attorney is retained to represent the Administrative
        Agent or any Lender in any bankruptcy, reorganization, receivership, or other
        proceedings affecting creditors’ rights and involving a claim under this
        Guaranty, a Note, the Credit Agreement, or any Loan Document; (iii) an
        attorney is retained to enforce any of the other Loan Documents or to provide
        advice or other representation with respect to the Loan Documents in connection
        with an enforcement action or potential enforcement action; or (iv) an
        attorney is retained to represent the Administrative Agent or any Lender
        in any
        other legal proceedings whatsoever in connection with this Guaranty, a Note,
        the
        Credit Agreement, any of the Loan Documents, or any property securing the
        Facility Indebtedness (other than any action or proceeding brought by any
        Lender
        or participant against the Administrative Agent alleging a breach by the
        Administrative Agent of its duties under the Loan Documents), then Guarantors
        shall pay to the Administrative Agent or such Lender upon demand all reasonable
        attorney’s fees, costs and expenses, including, without limitation, court costs,
        filing fees and all other costs and expenses incurred in connection therewith
        (all of which are referred to herein as “Enforcement
        Costs”),
        in
        addition to all other amounts due hereunder.

       

      8. The
        parties hereto intend that each provision in this Guaranty comports with
        all
        applicable local, state and federal laws and judicial decisions. However,
        if any
        provision or provisions, or if any portion of any provision or provisions,
        in
        this Guaranty is found by a court of law to be in violation of any applicable
        local, state or federal ordinance, statute, law, administrative or judicial
        decision, or public policy, and if such court should declare such portion,
        provision or provisions of this Guaranty to be illegal, invalid, unlawful,
        void
        or unenforceable as written, then it is the intent of all parties hereto
        that
        such portion, provision or provisions shall be given force to the fullest
        possible extent that they are legal, valid and enforceable, that the remainder
        of this Guaranty shall be construed as if such illegal, invalid, unlawful,
        void
        or unenforceable portion, provision or provisions were not contained therein,
        and that the rights, obligations and interest of the Administrative Agent
        and
        the Lender or the holder of a Note under the remainder of this Guaranty shall
        continue in full force and effect.

       

      9. Any
        indebtedness of Borrower to Guarantors now or hereafter existing is hereby
        subordinated to the Facility Indebtedness.  Guarantors will not seek,
        accept, or retain for Guarantors’ own account, any payment from Borrower on
        account of such subordinated debt at any time when a Default exists under
        the
        Credit Agreement or the Loan Documents, and any such payments to Guarantors
        made
        while any Default then exists under the Credit Agreement or the Loan Documents
        on account of such subordinated debt shall be collected and received by
        Guarantors in trust for the Lenders and shall be paid over to the Administrative
        Agent on behalf of the Lenders on account of the Facility Indebtedness without
        impairing or releasing the obligations of Guarantors hereunder.

       

      
        
          
          

        

        
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      10. Guarantors
        hereby subordinate to the Facility Indebtedness any and all claims and rights,
        including, without limitation, subrogation rights, contribution rights,
        reimbursement rights and set-off rights, which Guarantors may have against
        Borrower arising from a payment made by Guarantors under this Guaranty and
        agree
        that, until the entire Facility Indebtedness is paid in full, not to assert
        or
        take advantage of any subrogation rights of Guarantors or the Lenders or
        any
        right of Guarantors or the Lenders to proceed against (i) Borrower
        for
        reimbursement, or (ii) any other guarantor or any collateral security
        or
        guaranty or right of offset held by the Lenders for the payment of the Facility
        Indebtedness and performance of the Obligations, nor shall Guarantors seek
        or be
        entitled to seek any contribution or reimbursement from Borrower or any other
        guarantor in respect of payments made by Guarantors hereunder. It is expressly
        understood that the agreements of Guarantors set forth above constitute
        additional and cumulative benefits given to the Lenders for their security
        and
        as an inducement for their extension of credit to Borrower.

       

      11. Any
        amounts received by a Lender from any source on account of any indebtedness
        may
        be applied by such Lender toward the payment of such indebtedness, and in
        such
        order of application, as a Lender may from time to time elect.

       

      12. Guarantors
        hereby submit to personal jurisdiction in the State of Ohio for the enforcement
        of this Guaranty and waives any and all personal rights to object to such
        jurisdiction for the purposes of litigation to enforce this Guaranty. Guarantors
        hereby consent to the jurisdiction of either the Cuyahoga County Court of
        Common
        Pleas in Cleveland, Ohio or the United States District Court in Cleveland,
        Ohio
        in any action, suit, or proceeding which the Administrative Agent or a Lender
        may at any time wish to file in connection with this Guaranty or any related
        matter. Guarantors hereby agree that an action, suit, or proceeding to enforce
        this Guaranty may be brought in any state or federal court in the State of
        Ohio
        and hereby waives any objection which Guarantors may have to the laying of
        the
        venue of any such action, suit, or proceeding in any such court; provided,
        however, that the provisions of this Paragraph shall not be deemed to preclude
        the Administrative Agent or a Lender from filing any such action, suit, or
        proceeding in any other appropriate forum.

       

      13. All
        notices and other communications provided to any party hereto under this
        Agreement or any other Loan Document shall be in writing or by telex or by
        facsimile and addressed or delivered to such party at its address set forth
        below or at such other address as may be designated by such party in a notice
        to
        the other parties. Any notice, if mailed and properly addressed with postage
        prepaid, shall be deemed given when received; any notice, if transmitted
        by
        facsimile, shall be deemed given when transmitted. Notice may be given as
        follows:

       

      


      To
        Guarantors:

      


      Glimcher
        Properties Corporation

      150
        East
        Gay Street

      Columbus,
        Ohio 43215

      Attention:
        George A. Schmidt

      Telephone: 614-621-9000

      Facsimile: 614-621-8863

      


      
        
          
          

        

        
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      With
        a
        copy to:

      


      Glimcher
        Realty Trust

      150
        East
        Gay Street

      Columbus,
        Ohio 43215

      Attention:
        George A. Schmidt

      Telephone: 614-621-9000

      Facsimile: 614-621-8863

      


      To
        KeyBank as Administrative Agent and as a Lender:

      


      KeyBank
        National Association

      227
        West
        Monroe Street, 18th Floor

      Chicago,
        Illinois 60606

      Attention:
        Real Estate Capital

      Phone:
         312-730-2731

      Facsimile:
         312-730-2755

      


      With
        a
        copy to: 

      


      KeyBank
        National Association

      127
        Public Square

      Cleveland,
        Ohio 44114

      Attention:
        Real Estate Capital

      Phone:
         216-689-4660

      Facsimile:
         216-689-4997

      


      With
        a
        copy to:

      


      Sonnenschein
        Nath & Rosenthal, LLP

      8000
        Sears Tower

      Chicago,
        Illinois 60606

      Attention: Patrick
        G. Moran, Esq.

      Telephone: (312)
        876-8132

      Facsimile: (312)
        876-7934

      


      If
        to any
        other Lender, to its address set forth in the Credit Agreement.

      


      14. This
        Guaranty shall be binding upon the heirs, executors, legal and personal
        representatives, successors and assigns of Guarantors and shall inure to
        the
        benefit of the Administrative Agent and the Lenders’ successors and assigns.


       

      15. This
        Guaranty shall be construed and enforced under the internal laws of the State
        of
        Ohio.

       

      16. GUARANTORS,
        THE ADMINISTRATIVE AGENT AND THE LENDERS, BY THEIR ACCEPTANCE HEREOF, EACH
        HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
        ENFORCE
        OR DEFEND ANY RIGHT UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING
        THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF
        THIS
        GUARANTY AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE
        A
        COURT AND NOT BEFORE A JURY.

       

      
        
          
          

        

        
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      IN
        WITNESS WHEREOF, Guarantors have executed and delivered this Guaranty as
        of the
        date first written above.

       

      


      GLIMCHER
        REALTY TRUST

      


       

      By:
        /s/
        George A. Schmdit

      George
        A.
        Schmidt

      Executive
        Vice President

      


       

      


      GLIMCHER
        PROPERTIES CORPORATION

       

      


      By:
        /s/
        George A. Schmdit

      George
        A.
        Schmidt

      Executive
        Vice President

      


       

       

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