Exhibit 10.53
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
THIS UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE (this "Guaranty") is
made as of this 21st day of December, 2005, by RAMCO-GERSHENSON PROPERTIES
TRUST, a Maryland real estate investment trust, having its principal place of
business and chief executive office at 31500 Northwestern Highway, Suite 300,
Farmington Hills, Michigan 48334 ("Trust"), and the other Persons, if any, now
or hereafter a party hereto as a Subsidiary Guarantor (the Trust and such other
Subsidiary Guarantors are hereinafter referred to collectively as the
"Guarantors"), in favor of KeyBank National Association, a national bank
organized under the laws of the United States of America, its successors and
assigns, for itself ("KeyBank") and in its capacity as agent (the "Agent") for
certain other lenders that may now be or may hereafter become a party to the
"Loan Agreement" (as such term is defined below), having an office at 1200
Abernathy Road, Suite 1550, Atlanta, Georgia 30328, Attn: Dan Silbert. KeyBank
(except when acting as the Agent) and each other lending institution which may
now be or may hereafter become a party to the Loan Agreement, shall be referred
to collectively herein as the "Banks."
WHEREAS, Ramco-Gershenson Properties, L.P., a Delaware limited partnership
(the "Debtor"), the Trust, KeyBank, the Agent, and the Banks are parties to that
certain Unsecured Term Loan Agreement dated of even date herewith (as the same
may be modified, amended, increased, renewed or restated, the "Loan Agreement"),
pursuant to which the Debtor is liable for the "Obligations" (as such term is
defined in the Loan Agreement), including without limitation, loans and other
financial accommodations from the Banks (including the Agent in its capacity as
a Bank thereunder) in the aggregate principal amount of up to $22,600,000.00
(all Obligations being hereinafter referred to as the "Indebtedness"); and
WHEREAS, it is a condition precedent to the effectiveness of the Loan
Agreement that this Guaranty be executed and delivered by the Guarantor in favor
of the Agent; and
WHEREAS, the Trust is the sole general partner of and the owner of at least
a 84.17% of the ownership interests in Debtor, and the Debtor is the owner of
all or a majority of the ownership interests in each other Guarantor; and
WHEREAS, the Borrower and the Subsidiary Guarantors are mutually dependent
upon each other in the conduct of their business as an integrated operation and
each of the Guarantors will derive substantial benefit and advantage from the
financial accommodations to the Debtor set forth in the Loan Agreement including
the loans and advances made to the Debtor thereunder, and it will be to the
Guarantors' direct interest and economic benefit to assist the Debtor in
procuring said financial accommodations from the Banks by executing and
delivering this Guaranty;
NOW, THEREFORE, for and in consideration of the premises and in order to
induce the Agent and the Banks to enter into the Loan Agreement and the Banks to
make loans and provide other financial accommodations thereunder, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantors hereby agree as follows (unless otherwise defined
herein all capitalized terms used herein shall have their meanings as set forth
in the Loan Agreement):
1. Guaranty of Payment.
(a) The Guarantors hereby, jointly and severally, unconditionally
guarantee the full and prompt payment to the Banks and the Agent, on behalf of
the Banks, when due, upon demand, at maturity or by reason of acceleration or
otherwise and at all times thereafter, of any and all of the Indebtedness.
(b) The Guarantors acknowledge that valuable consideration supports
this Guaranty, including, without limitation, the consideration set forth in the
recitals above as well as any commitment to lend, extension of credit or other
financial accommodation, whether heretofore or hereafter made by the Banks to
the Debtor; any extension, renewal, increase or replacement of any of the
Indebtedness; any forbearance with respect to any of the Indebtedness or
otherwise; any cancellation of an existing guaranty; any purchase of any of the
Debtor's assets by the Banks; or any other valuable consideration.
(c) The Guarantors agree that all payments under this Guaranty shall
be made in United States currency and the same manner as provided for the
Indebtedness.
2. The Banks' Costs and Expenses.
The Guarantors jointly and severally agree to pay on demand, if not paid by
the Debtor, all reasonable costs and expenses of every kind incurred by the
Agent or the Banks: (a) in enforcing this Guaranty, (b) in collecting any of the
Indebtedness from the Debtor or Guarantors, (c) in realizing upon or protecting
any collateral for this Guaranty or for payment of any of the Indebtedness, and
(d) for any other purpose related to the Indebtedness or this Guaranty. "Costs
and expenses" as used in the preceding sentence shall include, without
limitation, the actual reasonable attorneys' fees incurred by the Agent or any
Bank in retaining counsel for advice, suit, appeal, any insolvency or other
proceedings under the United States Bankruptcy Code or otherwise, or for any
purpose specified in the preceding sentence.
3. Nature of Guaranty: Continuing, Absolute and Unconditional.
(a) This Guaranty is and is intended to be a continuing guaranty of
payment of the Indebtedness, independent of and in addition to any other
guaranty, endorsement, collateral or other agreement held by the Agent or the
Banks therefor or with respect thereto, whether or not furnished by any
Guarantor. The obligation of the Guarantors to repay the Indebtedness hereunder
shall be unlimited. The Guarantors shall have no right of subrogation with
respect to any payments made by Guarantors hereunder, and hereby waive any
benefit of, and any right to participate in, any security or collateral given to
the Agent or the Banks to secure payment of the Indebtedness, until all of the
Indebtedness outstanding or contracted or committed for (whether or not
outstanding) is paid in full, and the Guarantors agree that none of them will
take any action to enforce any obligations of the Debtor to such Guarantor prior
to the Indebtedness being paid in full, provided that, in the event of the
bankruptcy or insolvency of the Debtor, the Agent, on behalf of the Banks, shall
be entitled notwithstanding the foregoing, to file in the name of any Guarantor
or in its own name a claim for any and all indebtedness owing to such Guarantor
by the Debtor, vote such claim and to apply the proceeds of any such claim to
the Indebtedness.
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(b) Except as otherwise provided for in Section 8.7 of the Unsecured
Master Loan Agreement, for the further security of the Banks and without in any
way diminishing the liability of the Guarantors, following the occurrence of an
Event of Default under the Loan Agreement and acceleration of the Indebtedness,
all debts and liabilities, present or future of the Debtor to Guarantors and all
monies received from the Debtor or for its account by Guarantors in respect
thereof shall be received in trust for the Banks and forthwith upon receipt
shall be paid over to the Agent, on behalf of the Banks, until all of the
Indebtedness has been paid in full. This assignment and postponement is
independent of and severable from this Guaranty and shall remain in full effect
whether or not any Guarantor is liable for any amount under this Guaranty.
(c) This Guaranty is absolute and unconditional and shall not be
changed or affected by any representation, oral agreement, act or thing
whatsoever, except as herein provided. This Guaranty is intended by the
Guarantors to be the final, complete and exclusive expression of the guaranty
agreement between the Guarantors, the Banks and the Agent, on behalf of the
Banks. No modification or amendment of any provision of this Guaranty shall be
effective unless in writing and signed by a duly authorized officer of the
Agent, on behalf of the Banks.
(d) In the event of the business failure of any Guarantor or if there
shall be pending any bankruptcy or insolvency case or proceeding with respect to
any Guarantor under the United States Bankruptcy Code or any other applicable
law or in connection with the insolvency of any Guarantor, or if a liquidator,
receiver, or trustee shall have been appointed for any Guarantor or any
Guarantor's properties or assets, the Agent on behalf of the Banks may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Agent on behalf of the Banks allowed in any
proceedings relative to such Guarantor, or any of such Guarantor's properties or
assets, and, irrespective of whether the Indebtedness or other Obligations of
the Debtor guaranteed hereby shall then be due and payable, by declaration or
otherwise, the Agent on behalf of the Banks shall be entitled and empowered to
file and prove a claim for the whole amount of any sums or sums owing with
respect to the Indebtedness or other Obligations of the Debtor guaranteed
hereby, and to collect and receive any moneys or other property payable or
deliverable on any such claim. Guarantors covenant and agree that upon the
commencement of a voluntary or involuntary bankruptcy proceeding by or against
the Debtor or any other Guarantor, no Guarantor shall seek a supplemental stay
or otherwise pursuant to 11 U.S.C. Section 105 or any other provision of the
United States Bankruptcy Code or any other debtor relief law (whether statutory,
common law, case law, or otherwise) of any jurisdiction whatsoever, now or
hereafter in effect, which may be or become applicable, to stay, interdict,
condition, reduce or inhibit the ability of the Agent to enforce any rights of
the Agent against Guarantors by virtue of this Guaranty or otherwise.
4. Certain Rights and Obligations.
(a) The Guarantors authorize the Agent and the Banks, without notice,
demand or any reservation of rights against the Guarantors and without affecting
the Guarantors' obligations hereunder, from time to time: (i) to renew, extend,
increase, accelerate or otherwise change the time for payment of, the terms of
or the interest on the Indebtedness or any part thereof or grant other
indulgences to the Debtor or others, and to otherwise modify the terms of the
Loan Agreement and the other Loan Documents; (ii) to accept from any Person and
hold collateral for the payment of the Indebtedness or any part thereof, and to
modify, exchange,
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enforce or refrain from enforcing, or release, compromise, settle, waive,
subordinate or surrender, with or without consideration, such collateral or any
part thereof; (iii) to accept and hold any endorsement or guaranty of payment of
the Indebtedness or any part thereof, and to discharge, release or substitute
any such obligation of any such endorser or guarantor, or any Person who has
given any security interest in any collateral as security for the payment of the
Indebtedness or any part thereof, or any other Person in any way obligated to
pay the Indebtedness or any part thereof, and to enforce or refrain from
enforcing, or compromise or modify, the terms of any obligation of any such
endorser, guarantor, or Person; (iv) to dispose of any and all collateral
securing the Indebtedness in any manner as the Agent or the Banks, in their sole
discretion, may deem appropriate, and to direct the order or manner of such
disposition and the enforcement of any and all endorsements and guaranties
relating to the Indebtedness or any part thereof as the Agent or the Banks in
their sole discretion may determine; (v) except as otherwise provided in the
Loan Agreement, to determine the manner, amount and time of application of
payments and credits, if any, to be made on all or any part of any component or
components of the Indebtedness (whether principal, interest, fees, costs, and
expenses, or otherwise); and (vi) to take advantage or refrain from taking
advantage of any security or accept or make or refrain from accepting or making
any compositions or arrangements when and in such manner as the Agent or the
Banks, in their sole discretion, may deem appropriate and generally do or
refrain from doing any act or thing which might otherwise, at law or in equity,
release the liability of Guarantors as a guarantor or surety in whole or in
part, and in no case shall the Agent or the Banks be responsible, nor shall any
Guarantor be released, either in whole or in part for any act or omission in
connection with the Agent or the Banks having sold any security at an under
value.
(b) If any default shall be made in the payment of any of the
Indebtedness and any grace period has expired with respect thereto, each
Guarantor jointly and severally hereby agrees to pay the same in full to the
extent hereinafter provided: (i) without deduction by reason of any setoff,
defense (other than payment) or counterclaim of the Debtor; (ii) without
requiring presentment, protest or notice of nonpayment or notice of default to
Guarantors, to the Debtor or to any other Person, except as required pursuant to
the Loan Agreement; (iii) without demand for payment or proof of such demand or
filing of claims with a court in the event of receivership, bankruptcy or
reorganization of the Debtor; (iv) without requiring the Agent or the Banks to
resort first to the Debtor (this being a guaranty of payment and not of
collection) or to any other guaranty or any collateral which the Banks may hold;
(v) without requiring notice of acceptance hereof or assent hereto by the Agent
or the Banks; and (vi) without requiring notice that any of the Indebtedness has
been incurred, extended or continued or of the reliance by the Agent or the
Banks upon this Guaranty; all of which the Guarantors hereby waive.
(c) The Guarantors' obligations hereunder shall not be affected by any
of the following, all of which the Guarantors hereby waive: (i) any failure to
perfect or continue the perfection of any security interest in or other lien on
any collateral securing payment of any of the Indebtedness or the Guarantors'
obligations hereunder; (ii) the invalidity, unenforceability, propriety of
manner of enforcement of, or loss or change in priority of any such security
interest or other lien or guaranty of the Indebtedness; (iii) any failure to
protect, preserve or insure any such collateral; (iv) failure of Guarantors to
receive notice of any intended disposition of such collateral; (v) any defense
arising by reason of the cessation from any cause whatsoever of liability of the
Debtor, including, without limitation, any failure, negligence or omission by
the Agent or the Banks in enforcing their claims against the Debtor; (vi) any
release, settlement or
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compromise of any obligation of the Debtor, other than as a result of the
payment of the Indebtedness; (vii) the invalidity or unenforceability of any of
the Indebtedness or other obligations guaranteed hereunder; (viii) any change of
ownership of the Debtor or the insolvency, bankruptcy or any other change in the
legal status of the Debtor; (ix) any change in, or the imposition of, any law,
decree, regulation or other governmental act which does or might impair, delay
or in any way affect the validity, enforceability or the payment when due of the
Indebtedness; (x) the existence of any claim, setoff or other rights which
Guarantors may have at any time against the Agent, any Bank or the Debtor in
connection herewith or any unrelated transaction; (xi) the Agent's or any Bank's
election, in any case instituted under chapter 11 of the United States
Bankruptcy Code, of the application of section 1111(b)(2) of the United States
Bankruptcy Code; (xii) any borrowing, use of cash collateral, or grant of a
security interest by the Debtor, as debtor in possession, under sections 363 or
364 of the United States Bankruptcy Code; (xiii) the disallowance of all or any
portion of any of the Agent's or any Bank's claims for repayment of the
Indebtedness under sections 502 or 506 of the United States Bankruptcy Code;
(xiv) (A) any change in the amount, interest rate or due date or other term of
any of the obligations hereby guaranteed, (B) any change in the time, place or
manner of payment of all or any portion of the obligations hereby guaranteed,
(C) any amendment or waiver of, or consent to the departure from or other
indulgence with respect to, the Loan Agreement, any other Loan Document, or any
other document or instrument evidencing or relating to any obligations hereby
guaranteed, or (D) any waiver, renewal, extension, addition, or supplement to,
or deletion from, or any other action or inaction under or in respect of, the
Loan Agreement, any of the other Loan Documents, or any other documents,
instruments or agreements relating to the obligations hereby guaranteed or any
other instrument or agreement referred to therein or evidencing any obligations
hereby guaranteed or any assignment or transfer of any of the foregoing; (xv)
any act or failure to act by Debtor or any other Person which may adversely
affect any Guarantor's subrogation rights, if any, against Debtor to recover
payments made under this Guaranty; (xvi) the incapacity, lack of authority,
death or disability of Debtor or any other Person, or the failure of Agent or
the Banks to file or enforce a claim against the estate (either in
administration, bankruptcy or in any other proceeding) of Debtor or Guarantors
or any other Person; (xvii) the dissolution or termination of existence of
Debtor, any Guarantor or any other Person; (xviii) the failure of Agent and the
Banks to give notice of the existence, creation or incurring of any new or
additional indebtedness or obligation of Debtor or of any action or nonaction on
the part of any other person whomsoever in connection with any obligation hereby
guaranteed; (xix) any failure or delay of Agent and the Banks to commence an
action against Debtor or any other Person, to assert or enforce any remedies
against Debtor under the Loan Agreement, the Notes or the other Loan Documents,
or to realize upon any security; (xx) any failure of any duty on the part of
Agent and the Banks to disclose to Guarantors any facts it may now or hereafter
know regarding Debtor or any other Person, any of their properties or any of the
improvements located thereon, whether such facts materially increase the risk to
Guarantors or not; (xxi) failure to accept or give notice of acceptance of this
Guaranty by Agent and the Banks; (xxii) failure to make or give notice of
presentment and demand for payment of any of the indebtedness or performance of
any of the obligations hereby guaranteed; (xxii) failure to make or give protest
and notice of dishonor or of default to Guarantors or to any other party with
respect to the indebtedness or performance of obligations hereby guaranteed;
(xxiv) either with or without notice to Guarantors, any renewal, extension,
modification, amendment or another changes in the Indebtedness, including but
not limited to any material alteration of the terms of payment or performance of
the Indebtedness; or (xxv) any other fact or circumstance which might otherwise
constitute grounds at law or equity for the discharge or release of a Guarantor
from its
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obligations hereunder, all whether or not Guarantors shall have had notice or
knowledge of any act or omission referred to in the foregoing clauses (i)
through (xxv) of this Paragraph 4.
5. Representations, Warranties and Covenants.
(a) Guarantors further represent and warrant to the Agent and the
Banks that: (i) the Trust is a real estate investment trust duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, and has full power, authority and legal right to own its property
and assets and to transact the business in which it is engaged, and each other
Guarantor is a limited partnership or limited liability company duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, and has the full power, authority and legal right to own its
property and assets and to transact the business in which it is engaged; (ii)
each Guarantor has full power, authority and legal right to execute and deliver,
and to perform its obligations under, this Guaranty, and has taken all necessary
action to authorize the guarantee hereunder on the terms and conditions of this
Guaranty and to authorize the execution, delivery and performance of this
Guaranty; and (iii) this Guaranty has been duly executed and delivered by
Guarantors and constitutes a legal, valid and binding obligation of Guarantors
enforceable against Guarantors in accordance with its terms. In addition, each
representation and warranty that is applicable to or is made by any Subsidiary
under the Loan Agreement is hereby incorporated herein by this reference and the
Guarantors (other than the Trust) hereby make, restate and reaffirm each such
representation and warranty.
(b) Each covenant and agreement that is applicable to or is to be
performed by any Subsidiary under the Loan Agreement is hereby incorporated
herein by this reference and the Guarantors (other than the Trust) hereby agrees
to perform or abide by each such covenant and agreement.
6. Security; Assets - Negative Pledge.
Guarantors warrant and represent to and covenant with the Agent and the
Banks that: (i) each Guarantor has good, indefeasible and merchantable title to
all of its assets, and (ii) each Guarantor shall not grant a security interest
in or permit a lien, claim or encumbrance upon any of its assets in favor of any
third party.
7. Termination.
This Guaranty shall remain in full force and effect until all of the
Indebtedness shall be finally and irrevocably paid in full and the commitments
under the Loan Agreement shall have been terminated. Payment of all of the
Indebtedness from time to time shall not operate as a discontinuance of this
Guaranty. The Guarantors further agree that, to the extent that the Debtor makes
a payment or payments to the Agent or any of the Banks on the Indebtedness, or
the Agent or the Banks receive any proceeds of collateral securing the
Indebtedness which payment or receipt of proceeds or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be returned or repaid to the Debtor, its estate, trustee,
receiver, debtor in possession or any other Person, including, without
limitation, any guarantor, under any insolvency or bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such payment,
return or repayment, the obligation or part thereof which has been paid, reduced
or satisfied by such amount shall be reinstated and continued in full force and
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effect as of the date when such initial payment, reduction or satisfaction
occurred, and this Guaranty shall continue in full force notwithstanding any
contrary action which may have been taken by the Agent or the Banks in reliance
upon such payment, and any such contrary action so taken shall be without
prejudice to the Agent's or the Banks' rights under this Guaranty and shall be
deemed to have been conditioned upon such payment having become final and
irrevocable.
8. Guaranty of Performance.
The Guarantors also jointly and severally guarantee the full, prompt and
unconditional performance of all obligations and agreements of every kind owed
or hereafter to be owed by the Debtor to the Agent or the Banks. Every provision
for the benefit of the Agent or the Banks contained in this Guaranty shall apply
to the guaranty of performance given in this Paragraph 8.
9. Assumption of Liens and Indebtedness.
To the extent that any Guarantor has received or shall hereafter receive
contributions to its capital consisting of assets of the Debtor that are
subject, at the time of such contribution, to liens and security interests in
favor of the Agent or the Banks in accordance with the Loan Agreement, each
Guarantor hereby expressly agrees that (i) it shall hold such assets subject to
such liens and security interests and subject to the terms of the Loan Agreement
and (ii) it shall be liable for the payment of the Indebtedness secured thereby.
The Guarantors' obligations under this Paragraph 9 shall be in addition to their
obligations as set forth in other sections of this Guaranty and not in
substitution therefor or in lieu thereof.
10. Miscellaneous.
(a) The terms "Debtor" and "Guarantor" as used in this Guaranty shall
include: (i) any successor individual or individuals, association, partnership
or corporation to which all or a substantial part of the business or assets of
the Debtor or a Guarantor shall have been transferred and (ii) any other entity
into or with which the Debtor or a Guarantor shall have been merged,
consolidated, reorganized, or absorbed. Nothing herein shall be deemed to modify
any restrictions regarding assignments, transfers, mergers, consolidations or
reorganizations set forth in the Loan Agreement. Notwithstanding anything herein
to the contrary, Guarantor shall not assign or transfer any of its rights or
obligations under this Guaranty without the prior written consent of each of the
Banks.
(b) Without limiting any other right of the Agent or the Banks,
whenever the Agent or the Banks have the right to declare any of the
Indebtedness to be immediately due and payable (whether or not it has been so
declared), subject to the notice requirements and other limitations set forth in
Section 13 of the Loan Agreement, the Agent and the Banks at their sole election
without notice to any of the undersigned may appropriate and set off against the
Indebtedness: (i) any and all indebtedness or other moneys due or to become due
to a Guarantor by the Agent or the Banks in any capacity and (ii) any credits or
other property belonging to a Guarantor (including all account balances, whether
provisional or final and whether or not collected or available) at any time held
by or coming into the possession of the Agent or any of the Banks, or any
affiliate of the Agent or any of the Banks, whether for deposit or otherwise,
whether or not the Indebtedness or the obligation to pay such moneys owed by the
Agent or Banks is then due, and the Agent or the Banks shall be deemed to have
exercised such right of
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set off immediately at the time of such election even though any charge therefor
is made or entered on the Agent's or the Banks' records subsequent thereto.
(c) The Guarantors' obligation hereunder is to pay the Indebtedness in
full when due according to the Loan Agreement to the extent provided herein, and
shall not be affected by any stay or extension of time for payment by the Debtor
resulting from any proceeding under the United States Bankruptcy Code or any
similar law.
(d) No course of dealing between the Debtor or any Guarantor and the
Agent or the Banks and no act, delay or omission by the Agent or the Banks in
exercising any right or remedy hereunder or with respect to any of the
Indebtedness shall operate as a waiver thereof or of any other right or remedy,
and no single or partial exercise thereof shall preclude any other or further
exercise thereof or the exercise of any other right or remedy. The Agent or the
Banks may remedy any default by the Debtor under any agreement with the Debtor
or with respect to any of the Indebtedness in any reasonable manner without
waiving the default remedied and without waiving any other prior or subsequent
default by the Debtor. All rights and remedies of the Agent and the Banks
hereunder are cumulative.
(e) The term "Banks" as used herein shall have the same meaning as in
the Loan Agreement and this Agreement shall inure to the benefit of the Agent
and such Banks.
(f) Captions of the paragraphs of this Guaranty are solely for the
convenience of the Agent, the Banks and the Guarantors, and are not an aid in
the interpretation of this Guaranty.
(g) If any provision of this Guaranty is unenforceable in whole or in
part for any reason, the remaining provisions shall continue to be effective.
(h) THIS GUARANTY IS A CONTRACT UNDER THE LAWS OF THE STATE OF
MICHIGAN AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE
OF LAW). EACH GUARANTOR AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
GUARANTY MAY BE BROUGHT IN THE COURTS OF THE STATE OF MICHIGAN OR THE STATE OF
OHIO OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING
MADE UPON SUCH GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN THE OPENING
PARAGRAPH HEREOF. EACH GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
(i) Each notice, demand, election or request provided for or permitted
to be given pursuant to this Guaranty (hereinafter in this paragraph referred to
as "Notice") must be in writing and shall be deemed to have been properly given
or served by personal delivery or by sending same by overnight courier or by
depositing same in the United States Mail, postpaid and
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registered or certified, return receipt requested, or as expressly permitted
herein, by telegraph, telecopy, telefax or telex, and addressed as follows:
If to the Agent or the Banks:
KeyBank National Association, as Agent
1200 Abernathy Road, N.E.
Suite 1550
Atlanta, Georgia 30328
Attn: Daniel Silbert
Telecopy No.: (770) 510-2195
With a copy to:
McKenna Long & Aldridge LLP
5300 SunTrust Plaza
303 Peachtree Street
Atlanta, Georgia 30308
Attn: William F. Timmons, Esq.
Telecopy No.: (404) 527-4198
If to the Guarantors:
c/o Ramco-Gershenson Properties Trust
Suite 300
31500 Northwestern Highway
Farmington Hills, Michigan 48334
Attn: Chief Financial Officer
Telecopy No.: (248) 350-9925
With a copy to:
Honigman Miller Schwartz & Cohn LLP
Suite 100
38500 Woodward Avenue
Bloomfield Hills, Michigan 48304-5048
Attn: Alan M. Hurvitz, Esq.
Telecopy No.: (248) 566-8455
Each Notice shall be effective upon being personally delivered or upon being
sent by overnight courier or upon being deposited in the United States Mail as
aforesaid, or if transmitted by facsimile, upon being sent and confirmation of
receipt. The time period in which a response to such Notice must be given or any
action taken with respect thereto (if any), however, shall commence to run from
the date of receipt if personally delivered or sent by overnight courier, or if
so deposited in the United States Mail, the earlier of three (3) Business Days
following such deposit or the date of receipt as disclosed on the return
receipt, or if sent by facsimile, upon receipt or the next Business Day if
received after 5:00 p.m. (Cleveland time) or on a day that is not a Business
Day. Rejection or other refusal to accept or the inability to deliver because of
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changed address for which no notice was given shall be deemed to be receipt of
the Notice sent. By giving at least fifteen (15) days prior Notice thereof, the
Guarantors or Agent shall have the right from time to time and at any time
during the term of this Agreement to change their respective addresses and each
shall have the right to specify as its address any other address within the
United States of America.
11. Waivers.
(a) EACH GUARANTOR WAIVES THE BENEFIT OF ALL VALUATION, APPRAISAL AND
EXEMPTION LAWS.
(b) IN THE EVENT OF A DEFAULT UNDER THE LOAN AGREEMENT, EACH GUARANTOR
HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE
BY THE AGENT OR THE BANKS OF ANY OF THEIR RIGHTS AND REMEDIES UNDER THE LOAN
AGREEMENT OR ANY OTHER LOAN DOCUMENT, INCLUDING WITHOUT LIMITATION ANY OF THEIR
RIGHTS TO REPOSSESS ANY COLLATERAL WITHOUT JUDICIAL PROCESS OR TO REPLEVY,
ATTACH OR LEVY UPON ANY COLLATERAL OR OTHER ASSETS OF DEBTOR OR ANY GUARANTOR
WITHOUT PRIOR NOTICE OR HEARING. EACH GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN
ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS TRANSACTION AND THIS
GUARANTY.
(c) EACH GUARANTOR ACKNOWLEDGES THAT THE TIME AND EXPENSE REQUIRED FOR
TRIAL BY JURY EXCEED THE TIME AND EXPENSE REQUIRED FOR A BENCH TRIAL AND HEREBY
WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY, ANY OBJECTION BASED ON
FORUM NON CONVENIENS, ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER,
AND WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR
THIS WAIVER, BE REQUIRED OF THE AGENT OR THE BANKS.
12. Trust Exculpation.
Subject to the terms of this Paragraph 12, all persons having a claim
against the Trust (as a Guarantor or general partner of Debtor), hereunder or in
connection with any matter that is the subject hereof, shall look solely to (i)
the Trust's interest and rights in Debtor (as a general partner or limited
partner), (ii) the amount of any Net Offering Proceeds not contributed to the
Debtor, (iii) all accounts receivable, including the amount of any Distributions
received by the Trust from the Debtor and not distributed to shareholders of the
Trust as permitted by the Loan Agreement, (iv) all rights and claims (including
amounts paid under) the Tax Indemnity Agreement, (v) all cash and Short-term
Investments in an amount in excess of $500,000.00, (vi) any other assets which
the Trust may now own or hereafter acquire with the consent of Agent pursuant to
Section 7.17 of the Unsecured Master Loan Agreement, (vii) all documents and
agreements in favor of the Trust in connection with any of the foregoing, (viii)
all claims and causes of action arising from or otherwise related to any of the
foregoing, and all rights and judgments related to any legal actions in
connection with such claims or causes of action, and (ix) all extensions,
additions, renewals and replacements, substitutions, products or proceeds of
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any of the foregoing (the "Attachable Assets"), and in no event shall the
obligation of the Trust be enforceable against any shareholder, trustee,
officer, employee or agent of the Trust personally. In no event shall any person
have any claim against: (i) the cash, Short-term Investments of the Trust and
the property described in Schedule 6.29 to the Unsecured Master Loan Agreement,
all under the heading of "Other Permitted Assets", (ii) all documents and
agreements in favor of the Trust in connection with any of the foregoing, (iii)
all claims and causes of action arising from or otherwise related to any of the
foregoing, and all rights and judgments related to any legal actions in
connection with such claims or causes of action, and (iv) all extensions,
additions, renewals and replacements, substitutions, products or proceeds of any
of the foregoing (the "Other Permitted Assets"). The Agent and the Banks have
agreed to the terms of this Paragraph 12 solely based upon the representation
and covenant of Debtor and the Trust that the Trust does not and will not own
any assets other than the Attachable Assets and the Other Permitted Assets.
Notwithstanding anything in this Paragraph 12 to the contrary, the foregoing
limitation on liability and recourse to the Trust (as a Guarantor or general
partner of Debtor) shall be null and void and of no force and effect, and Agent
and the Banks shall have full recourse against the Trust, individually as a
Guarantor and in its capacity as general partner of Debtor, and to all of its
assets (including, without limitation, the Other Permitted Assets) in the event
that the Trust shall now or at any time hereafter own any asset other than or in
addition to the Other Permitted Assets and the Attachable Assets. Nothing herein
shall limit the rights of the Agent and the Banks against the Debtor.
13. Release of Guarantors.
Under certain circumstances described in Section 5.2(b) of the Loan
Agreement, certain Subsidiaries of the Debtor may obtain from the Agent a
written release from this Guaranty pursuant to the provisions of such section,
and upon obtaining such written release, any such Subsidiary shall no longer be
a Guarantor hereunder. Each other Guarantor consents and agrees to any such
release and agrees that no such release shall affect its obligations hereunder.
14. Joint and Several Obligations.
All of the representations, warranties, covenants, obligations and
liabilities of the Guarantors hereunder shall be joint and several.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be executed
as of the day and year first written above.
TRUST:
RAMCO-GERSHENSON PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ Richard J. Smith
------------------------------------
Name: Richard J. Smith
Title: Chief Financial Officer
[SEAL]
SUBSIDIARY GUARANTORS:
ROSSFORD DEVELOPMENT LLC,
a Delaware limited liability company
By: Ramco-Gershenson Properties, L.P.,
a Delaware limited partnership,
its Sole Member
By: Ramco-Gershenson Properties Trust,
a Maryland real estate investment
trust, its General Partner
By: /s/ Richard J. Smith
------------------------------------
Name: Richard J.Smith
Its: Chief Financial Officer
[SEAL]
RAMCO ROSEVILLE PLAZA LLC,
a Michigan limited liability company
By: Ramco-Gershenson Properties, L.P.,
a Delaware limited partnership,
its Sole Member
By: Ramco-Gershenson Properties
Trust, a Maryland real estate
investment trust, its General
Partner
By: /s/ Richard J. Smith
------------------------------------
Name: Richard J.Smith
Its: Chief Financial Officer
[SEAL]
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