EXHIBIT 10.62
GUARANTY
1. THE GUARANTY.
1.1 GUARANTORS' AGREEMENT. The undersigned "Guarantor",
RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership,
having its principal place of business at c/o Ramco-Gershenson
Properties Trust, 27600 Northwestern Highway, Suite 200, Southfield,
Michigan 48034, hereby unconditionally and irrevocably, guarantees (the
"Guaranty") to TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,
730 Third Avenue, New York, New York 10017 (the "Lender") to pay and
perform when due the Liabilities (defined below) and to pay on demand
the Expenses (defined below). This Guaranty is absolute, independent
and continuing under all circumstances, and is a guaranty of payment
and performance, not of collection. Guarantor acknowledges that the
Lender has given sufficient consideration for this Guaranty by having
made that certain loan (the "Loan") to Ben Mar, LLC, an Indiana limited
liability company, (referred to herein as the "Old Borrower"), as
evidenced by that certain promissory note in the amount of
$25,000,000.00 dated July 29, 1999 (as the same may from time to time
be amended, modified or restated, collectively, the "Note") and made by
Old Borrower, payable to the order of Lender, and on the date hereof
allowing Ramco-Merchants Square LLC as New Borrower to assume the Loan
and modify the Loan with New Borrower, whose general partner is
Guarantor, and acknowledges that the Lender is doing so in reliance on
each of the terms of this Guaranty.
1.2 LIABILITIES. For all purposes of this Guaranty, the term
"Liabilities" shall mean any and all matters constituting those
exclusions and exceptions from the limitation of liability ("Exceptions
to Non-Recourse") which are set forth in Section 15.1(c) of that
certain Mortgage, Assignment of Leases and Rents, Security Agreement
and Fixture Filing Statement of even date herewith executed by Borrower
in favor of Lender (as the same may from time to time be amended,
modified or restated, the "Mortgage"). The provisions of the Mortgage
are hereby incorporated in this Guaranty by reference as fully as if
set forth herein, verbatim. Each Guarantor acknowledges that the amount
of the Liabilities may exceed the amount necessary to pay in full the
Note (as defined in the Mortgage) and all Expenses.
1.3 EXPENSES. For all purposes of this Guaranty, the term
"Expenses" shall mean all attorneys' fees, court costs, and other legal
expenses and all other costs and expenses of any kind which the Lender
may at any time reasonably pay or incur in attempting to collect,
compromise or enforce in any respect the Liabilities or this Guaranty,
whether or not suit is ever filed, and whether or not in connection
with any insolvency, bankruptcy, reorganization, arrangement or other
similar proceeding involving any Guarantor provided Lender is
successful in the action for which such costs were incurred. If the
Lender pays any such cost or expense, "Expenses" shall also
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include interest at the Default Rate on any such payment from the date
thereof until repayment of the Lender in full.
2. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and warrants to
the Lender as follows:
2.1 REVIEW OF GUARANTY AND LOAN DOCUMENTS. Guarantor has
reviewed with the benefit of its legal counsel the terms of this
Guaranty, the Mortgage, the Note and each other of the Loan Documents
(as defined in the Note);
2.2 FINANCIAL BENEFIT TO GUARANTOR. Guarantor is deriving a
material financial benefit from the making of the Loan to Borrower.
2.3 ORGANIZATION; AUTHORIZATION. Guarantor, if not an
individual is duly organized, validly existing and in good standing
under the laws of the State of its formation, and duly qualified and in
good standing under the laws of each other State in which its
activities require that it be qualified. Guarantor has executed and
delivered this Guaranty pursuant to proper authority duly granted;
2.4 ENFORCEABILITY. Each obligation under this Guaranty is
legal, valid, binding and enforceable against Guarantor in accordance
with its terms;
2.5 INTENTIONALLY LEFT BLANK.
2.6 NO EXISTING DEFAULTS AND NO LITIGATION. Guarantor is not
in default under any agreement, the effect of which could materially
adversely affect performance of its obligations under this Guaranty.
There are no actions, suits or proceedings pending or, to the best of
its knowledge, threatened against Guarantor before any court or any
other governmental authority of any kind which could materially
adversely affect performance of its obligations under this Guaranty;
2.7 GUARANTY WILL CAUSE NO VIOLATIONS OF LAW OR OTHER
DEFAULTS. Neither the execution and delivery of this Guaranty nor
compliance with its terms will violate any presently existing law,
regulation, order, writ, injunction or decree of any court or other
governmental authority of any kind, or result in any default by
Guarantor under any other document or agreement of any kind;
2.8 NO MISSTATEMENTS OR OMISSIONS. This Guaranty does not
contain any untrue statement of fact.
2.9 ERISA. Guarantor is not an "employee benefit plan" (within
the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended from time to time ("ERISA")) to which ERISA
applies and Guarantor's assets do not constitute assets of any such
plan; and
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2.10 SOLVENCY. Guarantor (i) is solvent on the date hereof and
will not become insolvent as a result of the obligations incurred under
this Guaranty; (ii) is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which the
property of Guarantor is an unreasonably small capital; and (iii) has
not intended to incur, does not intend to incur, and does not believe
that it is incurring, obligations that would be beyond Guarantor's
ability to pay as such obligations mature.
3. AGREEMENTS. Guarantor agrees as follows:
3.1 Intentionally left blank.
3.2 Intentionally left blank.
3.3 RESCINDED, AVOIDED OR RETURNED PAYMENTS. If at any time
any part of any payment previously applied by the Lender to any of the
Liabilities is rescinded, avoided or returned by the Lender for any
reason, including the insolvency, bankruptcy or reorganization of any
of the Guarantor or any other party, such Liabilities shall be deemed
to have continued in existence to the extent that such payment is
rescinded, avoided or returned, and this Guaranty shall be reinstated
as to such Liabilities as though such prior application by the Lender
had not been made.
3.4 CERTAIN PERMITTED ACTIONS OF THE LENDER. The Lender may
from time to time, in its sole discretion and without notice to any
Guarantor, take any of the following actions without in any way
affecting the obligations of any Guarantor: (a) obtain a security
interest in any property to secure any of the Liabilities or any
obligation hereunder; (b) obtain the primary or secondary obligation of
any additional obligor or obligors with respect to any of the
Liabilities; (c) extend, modify, subordinate, exchange or release any
of the Liabilities; (d) modify, subordinate, exchange or release its
security interest in any part of any property securing any of the
Liabilities or any obligation hereunder, or extend, modify,
subordinate, exchange or release any obligations of any obligor with
respect to any such property; (e) alter the manner or place of payment
of the Liabilities; (f) enforce this Guaranty against Guarantor for
payment of any of the Liabilities, whether or not the Lender shall have
(A) proceeded against any other Guarantor or any other party primarily
or secondarily obligated with respect to any of the Liabilities or (B)
resort to or exhaust any other remedy or any other security or
collateral; and (g) foreclose on, take possession of or sell any of the
collateral or security for the Liabilities or enforce any other rights
under the Note, the Mortgage or any of the other Loan Documents.
3.5 LENDER'S OPTION TO RELEASE ANY GUARANTOR. The Lender may
from time to time in its sole discretion release any of the Guarantor
from any of its obligations hereunder or release any other obligor from
any of the Liabilities without notice to any other Guarantor or any
other party and without in any way releasing or affecting the liability
of the other Guarantor.
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3.6 APPLICATION OF PAYMENTS. The Lender may apply any payment
made on account of the Liabilities toward such of the Liabilities, and
in such order, as the Lender may from time to time elect in its sole
discretion.
3.7 Intentionally left blank.
3.8 CERTAIN EVENTS NOT AFFECTING OBLIGATIONS OF GUARANTOR. The
obligations of the Guarantor hereunder shall not be affected by any of
the following: (a) the release or discharge of any other Guarantor in
any creditors', receivership, bankruptcy, reorganization, insolvency,
or other proceeding; (b) the rejection or disaffirmance in any such
proceeding of any of the Liabilities; (c) the impairment or
modification of any of the Liabilities, or of any remedy for the
enforcement thereof, or of the estate of any other Guarantor in
bankruptcy, resulting from any present or future federal or state
bankruptcy law or any other law of any kind or from the decision or
order of any court or other governmental authority; (d) any disability
or defense of any other Guarantor; (e) the cessation of the liability
of any other Guarantor for any cause whatsoever; (f) any sale,
assignment, transfer or other conveyance (including any conveyance in
lieu of foreclosure or any collateral sale pursuant to the Uniform
Commercial Code) of any of the security for any of the Liabilities,
regardless of the amount received by the Lender in connection
therewith; or (g) any disability or defense of any kind now existing of
any Guarantor with respect to any provision of this Guaranty.
3.9 NO OBLIGATION OF LENDER REGARDING SECURITY INTEREST. The
Lender shall have no obligation to obtain, perfect or retain a security
interest in any property to secure any of the Liabilities or this
Guaranty, or to protect or insure any such property.
3.10 FILING OF CERTAIN CLAIMS. Guarantor shall promptly file
in any bankruptcy or other proceeding in which the filing of claims is
required by law all claims and proofs of such claims which Guarantor
may have against any other Guarantor, and will collaterally assign to
the Lender or its nominee all rights of Guarantor thereunder. If any
Guarantor does not so file, Guarantor hereby irrevocably authorizes the
Lender or its nominee to do so, either (in the Lender's discretion) as
attorney-in-fact for Guarantor, or in the name of the Lender or the
Lender's nominee. In all such cases, any party authorized to pay such
claim shall pay to the Lender or its nominee the full amount thereof.
3.11 ERISA. For so long as this Guaranty shall be continuing
pursuant to Paragraph 5.1 hereof, Guarantor hereby covenants to the
Lender that, for the duration of the term of this Guaranty, Guarantor
will not be an "employee benefit plan" (within the meaning of Section
3(3) of ERISA) to which ERISA applies and Guarantor's assets will not
constitute assets of any such plan.
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4. WAIVERS. Guarantor hereby expressly waives:
4.1 NOTICES. Notice of the acceptance by the Lender of this
Guaranty, notice of the existence or creation of any of the
Liabilities, presentment, demand, notice of dishonor, protest, notice
of protest, notice of acceleration, notice of intent to accelerate,
under this Guaranty and all other notices except any specifically
required by this Guaranty;
4.2 DISCLOSURES ABOUT ANY OTHER GUARANTOR. Guarantor hereby
waives any obligation the Lender may have to disclose to Guarantor any
facts the Lender now or hereafter may know or have reasonably available
to it regarding any other Guarantor or its financial condition, whether
or not the Lender has a reasonable opportunity to communicate such
facts or has reason to believe that any such facts are unknown to
Guarantor or materially increase the risk to Guarantor beyond the risk
Guarantor intends to assume hereunder. Guarantor shall be fully
responsible for keeping informed of the financial condition of each and
every other Guarantor and of all other circumstances bearing on the
risk of non-payment or non-performance of the Liabilities;
4.3 DILIGENCE IN COLLECTION. All diligence in collection of
any of the Liabilities, any obligation hereunder, or any guaranty or
other security for any of the foregoing;
4.4 BENEFIT OF CERTAIN LAWS. The benefit of all appraisement,
valuation, marshalling, forbearance, stay, extension, redemption,
homestead, exemption and moratorium laws now or hereafter in effect;
4.5 CERTAIN DEFENSES. Any defense based on the incapacity,
lack of authority, death or disability of any other person or entity or
the failure of the Lender to file or enforce a claim against the estate
of any other person or entity in any administrative, bankruptcy or
other proceeding;
4.6 ELECTION OF REMEDIES DEFENSE. Any defense based on an
election of remedies by the Lender, whether or not such election may
affect in any way the recourse, subrogation or other rights of
Guarantor against any other Guarantor or any other person in connection
with the Liabilities;
4.7 DEFENSES RELATING TO COLLATERAL SALE. Any defense based on
the failure of the Lender to (a) provide notice to the Guarantor of a
sale or other disposition (including any collateral sale pursuant to
the Uniform Commercial Code) of any of the security for any of the
Liabilities, or (b) conduct such a sale or disposition in a
commercially reasonable manner;
4.8 DEFENSES RELATING TO LOAN ADMINISTRATION. Any defense
based on the negligence of the Lender in administering the Loan, or
taking or failing to take any action in connection therewith; and
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4.9 RIGHTS OF SUBROGATION, CONTRIBUTION, ETC. Until payment by
Guarantor of all amounts claimed under this Guaranty by Lender, any
rights arising because of Guarantor's payment of any of the
Liabilities, (a) against any other Guarantor, by way of subrogation of
the rights of the Lender or otherwise, or (b) against any other
Guarantor or any other party obligated to pay any of the Liabilities,
by way of contribution or reimbursement or otherwise.
5. MISCELLANEOUS.
5.1 CONTINUING GUARANTY. This Guaranty shall in all respects
be a continuing guaranty, remaining in full force and effect until all
of the following have occurred: (a) all of the Liabilities have been
satisfied in full, (b) all of the Guarantor's obligations hereunder
have been satisfied in full, and (c) the Loan has been repaid in full.
No notice of discontinuance or revocation shall affect any of the
obligations of Guarantor hereunder or any other obligor under any of
the Liabilities. The Lender shall not be obligated to accept at any
time any deed in lieu of foreclosure, and all obligations of Guarantor
hereunder shall survive any foreclosure, reinstatement, period of
redemption or any deed in lieu of foreclosure, which the Lender may
accept, to the extent any of the Liabilities remain unsatisfied or
otherwise survive. Lender shall acknowledge that there is no further
obligation under this Guaranty where (a) (b) and (c) above have
occurred.
5.2 JOINT AND SEVERAL OBLIGATIONS; SUCCESSORS AND ASSIGNS. All
obligations under this Guaranty are joint and several to any other
party which hereafter guarantees any portion of the Liabilities, and
shall be binding upon each of them and their respective heirs, legal
representatives, successors and assigns.
5.3 ASSIGNMENT BY THE LENDER. The Lender may from time to
time, without notice to any Guarantor, assign or transfer any interest
in any of the Liabilities by loan participation or otherwise, and
notwithstanding such assignment or transfer, such Liabilities shall
remain Liabilities for purposes of this Guaranty. Each immediate and
successive assignee or transferee of any interest in any of the
Liabilities and this Guaranty shall, to the extent of such interest, be
entitled to the benefits of this Guaranty to the same extent as if such
assignee or transferee were the Lender. The Lender may deliver to any
such assignee or transferee any financial statements delivered by any
Guarantor in connection with this Guaranty.
5.4 LEGAL TENDER OF UNITED STATES. All payments hereunder
shall be made in coin or currency, which at the time of payment is
legal tender in the United States of America for public and private
debts.
5.5 TIME OF ESSENCE. Time is of the essence of this Guaranty.
5.6 DEFINITIONS; CAPTIONS; GENDER. Any capitalized term not
defined herein but defined in the Note shall have the same meaning
herein as it has in the Note. With
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respect to any reference in this Guaranty to any defined term: (a) if
such defined term refers to a person, or a trust, corporation,
partnership or other entity, then it shall also mean all heirs,
personal representatives, successors and assigns of such person or
entity; and (b) if such defined term refers to a document, instrument
or agreement, then it shall also include any replacement, extension or
other modification thereof. Captions contained in this Guaranty in no
way define, limit or extend the scope or intent of their respective
provisions. Use of the masculine, feminine or neuter gender and of
singular and plural shall not be given the effect of any exclusion or
limitation herein.
5.7 INCLUDING MEANS WITHOUT LIMITATION. The use in this
Guaranty of the term "including", and related terms such as "include",
shall in all cases mean "without limitation".
5.8 NOTICES. Any notice or demand provided for in this
instrument shall be in writing, addressed as provided below, and shall
be delivered personally, sent by certified mail, return receipt
requested or sent by reputable, national overnight delivery service,
charges prepaid. Notice is deemed given on the earlier of (i) actual
receipt; or (ii) three days after mailing if mailed or one day after
delivery to the overnight service if a service is used. All notices and
demands must include reference to the application number and the
mortgage number referred to in this instrument.
If to Guarantor: Ramco-Merchants Square LLC
c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
Attn: Chief Financial Officer
TIAA Appl. #IN-223
TIAA Mtge. #000453100
If to Lender: Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017
Attn: Managing Director-Mortgage and Real Estate
Division
Region: Midwest/Southwest
TIAA Appl. #IN-223
TIAA Mtge. #000453100
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With a copy to: Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017
Attn: Vice President and Chief Counsel in charge of
Investment Management Law
TIAA Appl. #IN-223
TIAA Mtge. #000453100
5.9 ENTIRE AGREEMENT. This Guaranty constitutes the entire
agreement of the Guarantor for the benefit of the Lender and supersedes
any prior agreements with respect to the subject matter hereof.
5.10 NO MODIFICATION WITHOUT WRITING. This Guaranty may not be
terminated or modified in any way nor can any right of the Lender or
any obligation of any Guarantor be waived or modified, except by a
writing signed by the Lender and Guarantor.
5.11 INDEPENDENT OBLIGATIONS. The obligations of Guarantor
hereunder are independent of the obligations of any other Guarantor. In
the event of any default hereunder, the Lender may institute a separate
action against any Guarantor with or without joining or instituting a
separate action against any other Guarantor or other obligor.
5.12 SEVERABILITY. Each provision of this Guaranty shall be
interpreted so as to be effective and valid under applicable law, but
if any provision of this Guaranty shall in any respect be ineffective
or invalid under such law, such ineffectiveness or invalidity shall not
affect the remainder of such provision or the remaining provisions of
this Guaranty.
5.13 CUMULATIVE. The obligations of Guarantor hereunder are in
addition to any other obligations it may now or hereafter have to the
Lender, and shall not be affected in any way by the delivery to the
Lender by Guarantor or any other guarantor of any other guaranty, or
any combination thereof. All rights and remedies of the Lender and all
obligations of Guarantor under this Guaranty are cumulative. In
addition, the Lender shall have all rights and remedies available to it
in law or equity for the enforcement of this Guaranty.
5.14 EFFECT OF LENDER'S DELAY OR ACTION. No delay by the
Lender in the exercise of any right or remedy shall operate as a waiver
thereof, and no single or partial exercise by the Lender of any right
or remedy shall preclude any other exercise thereof or the exercise of
any other right or remedy. No action of the Lender permitted hereunder
shall in any way impair or
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otherwise affect any right of the Lender or obligation of Guarantor
under this Guaranty. The Lender shall not be liable in any way for any
decrease in the value or marketability of any property securing any of
the Liabilities which may result from any action or omission of the
Lender in enforcing any part of this Guaranty, the Note, the Mortgage
or any other of the Loan Documents.
5.15 GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF INDIANA
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
5.16 ENTIRE AGREEMENT. THIS GUARANTY, TOGETHER WITH THE NOTE,
MORTGAGE, AND OTHER LOAN DOCUMENTS, REPRESENTS THE ENTIRE FINAL
AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREIN AND CANNOT BE MODIFIED, SUPPLEMENTED, AMENDED,
RESCINDED OR CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES, EXCEPT BY AN INSTRUMENT IN
WRITING SIGNED BY THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES HERETO.
5.17 WAIVER OF JURY TRIAL. GUARANTOR AND THE LENDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS THAT
GUARANTOR OR LENDER MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION
ARISING IN ANY WAY IN CONNECTION WITH THIS GUARANTY, THE NOTE, THE
MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS EXECUTED BY GUARANTOR, OR
IN CONNECTION WITH ANY OTHER STATEMENTS OR ACTIONS OF THE LENDER OR
GUARANTOR.
[SIGNATURE ON NEXT PAGE]
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IN WITNESS WHEREOF, the undersigned have executed this Guaranty as of
this _______ day of January, 2004.
THE GUARANTOR:
RAMCO-GERNSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
Name:_________________________
Title:__________________________
ACKNOWLEDGMENT
STATE OF ________________ )
) ss
COUNTY OF _______________ )
I, _____________________, a notary public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that _________________________, the
__________________ of RAMCO-GERSHENSON PROPERTIES, L.P., personally known to me
to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that he/she signed,
sealed and delivered the said instrument in his/her capacity as ________________
of such limited partnership as his/her free and voluntary act, for the uses and
purposes therein set forth.
GIVEN under my hand and official seal, this ______ day of ___________,
2004.
_____________________________________________
Notary Public
My commission expires:
______________________
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