EXHIBIT 10.117
Project Name: Xxxxxxx Square Mall
Loan No. M700400604
SUBSTITUTION OF GUARANTOR
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THIS SUBSTITUTION OF GUARANTOR (this "Substitution Agreement") is made as
of the 9th day of October 2007, by GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership (individually and collectively, as the context
requires, "New Indemnitor"), THOR URBAN OPERATING FUND, L.P., a Delaware limited
partnership (whether one or more, "Existing Indemnitor"), and LASALLE BANK
NATIONAL ASSOCIATION, AS TRUSTEE FOR XXXXXX XXXXXXX CAPITAL I INC., COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-IQ11 ("Lender").
R E C I T A L S:
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A. Lender is the current owner and holder of the following loan documents
evidencing a loan ("Loan") originally made to Thor MS, LLC, a Delaware limited
liability company ("Thor MS"), and Xxxx Xxxxxxx Square, LLC, a Delaware limited
liability company ("Xxxx Xxxxxxx"; Thor MS and Xxxx Xxxxxxx are collectively
referred to herein as "Borrower"), by Xxxxxx Xxxxxxx Mortgage Capital, Inc., a
New York corporation ("Original Lender"): (a) a Promissory Note (the "Note"),
dated as of August 19, 2005, in the original principal amount of $57,000,000.00,
which Note is secured by (b) a Mortgage and Security Agreement (the "Security
Instrument") of even date therewith recorded in Book 5521, Page 6433, official
records of the Clerk of Courts, Brevard County, State of Florida ("Records"),
(c) an Assignment of Leases and Rents (the "Assignment") as recorded in Book
5521, Page 6468 of the Records, and (d) the Guaranty Agreements (hereinafter
defined) (all such documents, together with all other documents evidencing or
securing the Loan, as modified, collectively, the "Loan Documents"), which
encumber or otherwise relate to the certain real property ("Land") and the
buildings and improvements thereon ("Improvements"), commonly known as "Xxxxxxx
Square Mall" located in the City of Xxxxxxx Island, County of Brevard, and State
of Florida, more particularly described in the Security Instrument (the Land and
the Improvements are hereinafter sometimes collectively referred to as the
"Project").
B. In connection with the Loan, Existing Indemnitor represented to Original
Lender that Existing Indemnitor was an affiliate of Borrower and would derive
substantial economic benefit from Original Lender making the Loan to Borrower.
Accordingly, Existing Indemnitor assumed certain liabilities and undertook
certain obligations, indemnities, and agreements pursuant to the following
instruments that were executed in connection with the Loan (collectively called
the "Guaranty Agreements"), which are incorporated herein by reference and made
a part hereof: (1) that certain Guaranty of Recourse Obligations of Borrower of
even date with the Note (sometimes referred to herein as the "Guaranty")
executed by Existing Indemnitor in favor of Original Lender; and (2) that
certain Environmental Indemnity Agreement of even date with the Note (sometimes
referred to herein as the "Environmental Indemnity") executed by Borrower and
Existing Indemnitor in favor of Original Lender.
C. Existing Indemnitor desires to be released from its obligations under
the Guaranty Agreements which arise or accrue from and after the date hereof.
D. Lender has required, among other things, as a condition of its consent
to the transfer of membership interests (the "Transfer") as contemplated in that
certain Consent Agreement (the "Agreement") and as a condition to the release of
Existing Indemnitor, that New Indemnitor assume and become obligated for the
performance of each and all of the obligations and agreements of Existing
Indemnitor under the Guaranty Agreements.
Statement of Agreement
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Reaffirmation of Guaranty Agreements. The Guaranty Agreements constitute
the valid, legally binding joint and several obligation of Existing
Indemnitor, enforceable against Existing Indemnitor in accordance with
their respective terms.
2. Agreements of Existing Indemnitor. Existing Indemnitor consents to the
execution and delivery of the Agreement by Borrower and agrees and
acknowledges that, except as set forth in Paragraph 6, below, the liability
of Existing Indemnitor under the Guaranty Agreements shall not be
diminished in any way by the execution and delivery of the Agreement or by
the consummation of any of the transactions contemplated therein,
including, but not limited to, the Transfer.
3. Authority Representations by the Existing Indemnitor. The execution and
delivery of, and performance under, this Substitution Agreement and the
Guaranty Agreements by Existing Indemnitor will not (a) violate any
provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to
Existing Indemnitor or (b) result in a breach of or constitute or cause a
default under any indenture, agreement, lease or instrument to which
Existing Indemnitor is a party or by which the Project may be bound or
affected.
4. Representations of New Indemnitor.
(a) New Indemnitor hereby represents to Lender that it is an affiliate of
Borrower and that it will derive substantial economic benefit from
Lender's agreement to consent to the Transfer.
(b) New Indemnitor hereby acknowledges that this Substitution Agreement is
being executed in order to induce Lender to consent to the Transfer
and to release Existing Indemnitor of liability as set forth herein,
and that Lender would not consent to the Transfer or release Existing
Indemnitor without the execution and delivery by New Indemnitor of
this Substitution Agreement.
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(c) The execution and delivery of this Substitution Agreement, and
performance by New Indemnitor under this Substitution Agreement and
the Guaranty Agreements will not (a) violate any provision of any law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to New
Indemnitor or (b) result in a breach of or constitute or cause a
default under any indenture, agreement, lease or instrument to which
New Indemnitor is a party or by which the Project may be bound or
affected.
5. Substitution of New Indemnitor; Assumption of Obligations.
(a) New Indemnitor is hereby substituted, in each and every respect, for
Existing Indemnitor, in lieu of and in place of Existing Indemnitor
with respect to each and every reference to Existing Indemnitor in the
Guaranty Agreements and the other Loan Documents.
(b) New Indemnitor, jointly and severally, hereby assumes and agrees to be
obligated, responsible and liable for the performance of and bound by
all of the obligations, indemnities, agreements and liabilities of
Existing Indemnitor under the Guaranty Agreements, and further agrees
to all waivers, including, but not limited to, the jury waiver, set
forth therein.
(c) New Indemnitor agrees to pay, perform, and discharge each and every
obligation of payment and performance of Existing Indemnitor pursuant
to the Guaranty Agreements and Loan Documents.
(d) New Indemnitor will abide by and be bound by the terms of the Loan
Documents having reference to Existing Indemnitor.
6. Release of Existing Indemnitor.
(a) Lender releases Existing Indemnitor from any and all liability to
Lender, its successors and assigns, which may arise or accrue from and
after the date of this Substitution Agreement under the Guaranty
Agreements and other Loan Documents.
(b) Notwithstanding anything to the contrary in this Substitution
Agreement, the Security Instrument or the other Loan Documents,
Existing Indemnitor shall remain liable for its obligations under the
Guaranty Agreements arising from acts or events occurring or
obligations arising prior to the date hereof, whether or not such
acts, events or obligations are, as of the date of this Substitution
Agreement, known or ascertainable. In furtherance of the foregoing,
Existing Indemnitor shall not be released from its obligations under
the Guaranty Agreements if such obligations (i) were caused by
Borrower or any of its agents prior to the date hereof, or (ii) were
or are caused by Existing Indemnitor and/or any of its agents.
Furthermore, Existing Indemnitor shall not be released from its
environmental obligations under the Environmental Indemnity (the
"Environmental Indemnity Obligations Under Environmental Indemnity")
occurring after the date hereof if such Environmental Indemnity
Obligations Under Environmental Indemnity (x) were caused by Borrower
or any of its agents prior to the date hereof, or (y) were caused by
Existing Indemnitor and/or any of its agents, or (z) result from the
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existence of conditions existing prior to the date hereof or migrating
to or from any portion of the Project prior to the date hereof, or
result from a violation of any Environmental Laws (as defined in the
Environmental Indemnity) prior to the date hereof. For purposes of
this Substitution Agreement, Existing Indemnitor shall bear the burden
of proving when Hazardous Substances (as defined in the Environmental
Indemnity) first existed upon, about or beneath the Project or began
migrating to or from the Project and when a violation of any
Environmental Laws first occurred; provided, however, the foregoing
burden of proof is for the benefit of Lender, its successors and
assigns, and is not for the benefit of any third party.
7. Release of Lender by Existing Indemnitor. Existing Indemnitor hereby
releases, waives, and surrenders any and all claims, counterclaims,
defenses, affirmative defenses, and other rights of setoff whatsoever,
relating to acts, events, conduct, or other matters whatsoever occurring at
or prior to the date hereof, that Existing Indemnitor might otherwise have
been entitled to assert or allege against Lender, any servicer or their
officers, directors, employees and agents for any reason under or in
connection with the Loan, Guaranty Agreements or other Loan Documents,
including, but not limited to, any matter related to, connected with,
arising out of, or regarding this Substitution Agreement, the transfer of
the Project, the payment of amounts due to Lender under the Note or the
enforcement of the provisions under any of the Loan Documents. New
Indemnitor acknowledges and agrees that the foregoing release, waiver, and
surrender by Existing Indemnitor is binding upon New Indemnitor for all
events arising prior to the execution of this Substitution Agreement.
8. Notices. Without amending, modifying or otherwise affecting the provisions
of the Loan Documents except as expressly set forth herein, Lender shall,
from and after the date of this Substitution Agreement, deliver any notices
to New Indemnitor which are required to be delivered pursuant to the Loan
Documents, or are otherwise delivered by Lender thereunder at Lender's sole
discretion, to New Indemnitor's address as follows:
000 Xxxx Xxx Xxxxxx,
00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxx X. Xxxxx, General Counsel
Facsimile No.: 000-000-0000
9. No Waiver by Lender. Except as expressly set forth herein, nothing
contained herein shall be deemed a waiver of any of Lender's rights or
remedies under the Loan Documents.
10. Relationship with Loan Documents. To the extent that this Substitution
Agreement is inconsistent with the Loan Documents, this Substitution
Agreement will control and the Loan Documents will be deemed to be amended
hereby. Except as amended hereby, the Loan Documents shall remain unchanged
and in full force and effect.
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11. Captions. The headings to the sections of this Substitution Agreement have
been inserted for convenience of reference only and shall in no way modify
or restrict any provisions hereof or be used to construe any such
provisions.
12. Partial Invalidity. If any provision of this Substitution Agreement is held
to be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully-severable, and this Substitution Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Substitution Agreement.
13. Joint and Several Liability. If New Indemnitor consists of more than one
person or party, the obligations and liabilities of each such person or
party shall be joint and several.
14. Entire Agreement. THIS SUBSTITUTION AGREEMENT AND THE GUARANTY AGREEMENTS
CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO
THE SUBJECT MATTER HEREOF (IT BEING HEREBY ACKNOWLEDGED AND AGREED THAT
THIS SUBSTITUTION AGREEMENT IS NOT INTENDED TO ADDRESS OR OTHERWISE RELATE
TO THE LIABILITY OR OBLIGATIONS OF BORROWER UNDER ANY OF THE LOAN
DOCUMENTS). This Substitution Agreement shall not be amended unless such
amendment is in writing and executed by each of the parties. This
Substitution Agreement supersedes all prior negotiations regarding the
subject matter hereof.
15. Binding Effect. This Substitution Agreement and the documents contemplated
to be executed in connection herewith shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns; provided, however, that the foregoing provisions of this Paragraph
shall not be deemed to be a consent by Lender to any further sale,
conveyance, assignment or transfer of the Project by Borrower.
16. Multiple Counterparts. This Substitution Agreement may be executed in
multiple counterparts, each of which will be an original, but all of which,
when taken together, will constitute one and the same Substitution
Agreement.
17. Governing Law. THIS SUBSTITUTION AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
18. Effective Date. This Substitution Agreement shall be effective as of the
date first written above by the parties hereto and thereupon is
incorporated into the terms of the Loan Documents.
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IN WITNESS WHEREOF, the parties hereto have executed this Substitution
Agreement to be effective as of the date first aforesaid.
NEW INDEMNITOR:
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GLIMCHER PROPERTIES LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
a Delaware corporation
Its Sole General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Executive Vice President
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STATE OF ___________ )
) SS.:
COUNTY OF ___________ )
This instrument was acknowledged before me, a notary public, this ___ day
of October, 2007, by __________________ as _________________ of Glimcher
Properties Corporation, a Delaware Corporation, in its capacity as Sole General
Partner of Glimcher Properties Limited Partnership, a Delaware limited
partnership, on behalf of the limited partnership. He/She is personally known to
me or has produced a driver's license as identification.
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Notary Public
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My Commission Expires:
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EXISTING INDEMNITOR:
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THOR URBAN OPERATING FUND, L.P.,
a Delaware limited partnership
By: THOR OPERATING FUND, L.L.C.,
a Delaware limited liability company
Its General Partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Authorized Signatory
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STATE OF ___________ )
) SS.:
COUNTY OF ___________ )
This instrument was acknowledged before me, a notary public, this ___ day
of October, 2007, by __________________ as _________________ of Thor Operating
Fund, L.L.C., a Delaware limited liability company, in its capacity as General
Partner of Thor Urban Operating Fund, L.P., a Delaware limited partnership, on
behalf of the limited partnership. He/She is personally known to me or has
produced a driver's license as identification.
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Notary Public
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My Commission Expires:
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LENDER:
LASALLE BANK NATIONAL ASSOCIATION, AS
TRUSTEE FOR XXXXXX XXXXXXX CAPITAL I INC.,
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-IQ11
By: LNR Partners, Inc.,
as attorney-in-fact
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
Vice President
STATE OF FLORIDA )
) SS.:
COUNTY OF MIAMI-DADE )
This instrument was acknowledged before me, a notary public this ____ day
of October, 2007, by Xxxxxxxx X. Xxxxxxx, as Vice President of LNR Partners,
Inc., a Florida corporation, on behalf of said corporation as attorney-in-fact
for LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR XXXXXX XXXXXXX CAPITAL I
INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-IQ11, on behalf
of the trust. He is personally known to me or has produced a driver's license as
identification.
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Notary Public
My Commission Expires:_____________
