Exhibit 4.5
GUARANTY
This GUARANTY ("Guaranty") is executed as of March 30, 2007, by
RAMCO-GERSHENSON PROPERTIES L.P., a Delaware limited partnership ("Guarantor"),
for the benefit of JPMORGAN CHASE BANK, N.A., a national banking association
("Lender").
A. RAMCO JACKSONVILLE LLC, a Delaware limited liability company
("Borrower") is indebted to Lender with respect to a loan ("Loan") pursuant to
that certain Amended and Restated Fixed Rate Note dated of even date herewith,
payable to the order of Lender in the original principal amount of $110,000,000
(together with all renewals, modifications, increases and extensions thereof,
the "Note"), which is secured by the liens and security interests of that
certain Amended and Restated Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing of even date herewith (as the same may be amended,
restated, extended, or otherwise modified from time to time, the "Mortgage"),
and further evidenced, secured or governed by the other Loan Documents (as
defined in the Note); and
B. Lender is not willing to make the Loan, or otherwise extend credit, to
Borrower unless Guarantor unconditionally guarantees payment and performance to
Lender of the Guaranteed Obligations (as herein defined); and
C. Guarantor is the owner of a direct or indirect interest in Borrower, and
Guarantor will directly benefit from Lender's making the Loan to Borrower.
NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower
thereunder, and to extend such additional credit as Lender may from time to time
agree to extend under the Loan Documents, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
ARTICLE I
NATURE AND SCOPE OF GUARANTY
1.1 Guaranty of Obligation. Guarantor hereby irrevocably and
unconditionally guarantees to Lender (and its successors and assigns), jointly
and severally, the payment and performance of the Guaranteed Obligations as and
when the same shall be due and payable, whether by lapse of time, by
acceleration of maturity or otherwise. Guarantor hereby irrevocably and
unconditionally covenants and agrees that it is liable for the Guaranteed
Obligations as a primary obligor, and that Guarantor shall fully perform each
and every term and provision hereof.
1.2 Definition of Guaranteed Obligations. As used herein, the term
"Guaranteed Obligations" shall mean the Debt (as defined in the Note) in the
event (i) any petition or proceeding for bankruptcy, reorganization or
arrangement pursuant to federal bankruptcy law, or any similar federal or state
law, shall be filed by Borrower or any affiliate of Borrower with respect to
Borrower (or if any such petition or proceeding was not so filed by Borrower,
but Borrower or Guarantor or their respective agents, affiliates, officers or
employees consented to,
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acquiesced in arranged or otherwise participated in bringing about the
institution of such petition or proceeding) or (ii) Borrower fails to satisfy
its obligations pursuant to Sections 1(ii)(b)(3), (4), (5) and (6) of the Note
or Section 1(ii)(c) of the Note, as applicable. In addition, the Guaranteed
Obligations shall also include and Guarantor shall also be liable for, and shall
indemnify, defend and hold Lender, its successors and assigns, and their
respective shareholders, employees, officers, directors, and agents (each an
"Indemnified Party") harmless from and against, any and all loss, cost, expense,
damage, claim or other obligation (including, without limitation, reasonable
attorney's fees and costs of defense) incurred or suffered by Lender and arising
out of or in connection with the following matters listed in subsections (a)
through (l) below, excluding any liability, loss, damage, claim or obligation to
the extent caused by or resulting from the negligent or grossly negligent acts
of an Indemnified Party:
(a) Borrower fails to obtain Lender's prior written consent to any
subordinate financing (except as permitted in Section 9(d) of the Mortgage) or
any other encumbrance on the Property, or any transfer of the Property or direct
or indirect equity interest in Borrower in violation of Section 12 of the
Mortgage;
(b) the misapplication by Borrower, its agents, affiliates, officers
or employees of any funds derived from the Property, including security
deposits, insurance proceeds and condemnation awards, in violation of the Loan
Documents;
(c) Borrower's failure to apply proceeds of rents or any other
payments in respect of the leases and other income from the Property or any
other collateral when received to the costs of maintenance and operation of the
Property to capital expenditures for the Property and/or leasing costs, tenant
improvements and tenant allowances under leases at the Property and to the
payment of taxes, lien claims, insurance premiums, monthly payments of principal
and interest or escrow payments or other payments due under the Loan Documents
to the extent the Loan Documents require such proceeds to be then so applied;
(d) any litigation or other legal proceeding related to the Debt filed
by Borrower or any Guarantor or indemnitor that delays or impairs Lender's
ability to preserve, enforce or foreclose its lien on the Property, including,
but not limited to, the filing of a voluntary petition concerning Borrower under
the U.S. Bankruptcy Code, in which action a claim, counterclaim, or defense is
asserted against Lender, other than any litigation or other legal proceeding in
which a final, non-appealable judgment for money damages or injunctive relief is
entered against Lender;
(e) the seizure or forfeiture of the Property, or any portion thereof,
or Lender's interest therein, resulting from criminal wrongdoing by Borrower,
its agents, affiliates, officers or employees;
(f) the involuntary bankruptcy of Borrower if Borrower and any
guarantor are not using their best efforts to obtain dismissal of the bankruptcy
proceeding;
(g) waste to the Property caused by the acts or omissions of Borrower,
its agents, affiliates, officers, employees or contractors; or the removal or
disposal of any portion of the Property by Borrower, its agents, affiliates,
officers, employees or contractors after an Event
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of Default to the extent such Property is not replaced by Borrower with like
property of equivalent value, function and design;
(h) failure by Borrower to pay any or all such taxes, assessments or
premiums in accordance with the terms of the Mortgage (except for taxes and
assessment which accrue, and premiums which are payable, after either (1) the
date that Lender takes title to the Property by foreclosure, deed-in-lieu of
foreclosure or otherwise or (2) Lender obtains the appointment of a receiver or
otherwise takes possession directly as a mortgagee in possession (provided,
that, Borrower has relinquished possession and control of the Property to such
receiver or Lender and is not disputing the receivership or possession by the
receiver or Lender)), provided, however that Guarantor's liability hereunder
with respect to the failure of Borrower to pay such taxes shall be limited to
all amounts available to Borrower from the cash flow of the Property;
(i) in the event of fraud or material misrepresentation by Borrower or
Guarantor in connection with the Loan Documents or any other documents delivered
by Borrower or Guarantor to Lender in connection with the Loan;
(j) in the event the first full Monthly Installment (as defined in the
Note) is not paid when due;
(k) in the event there shall occur any material breach or default
under the provisions of Section 9 of the Mortgage (entitled "Single Purpose
Entity/Separateness"); or
(l) the breach by Borrower of any indemnification of Lender as set
forth in Section 19(c) of the Mortgage.
1.3 Nature of Guaranty. This Guaranty is an irrevocable, absolute,
continuing guaranty of payment and performance, is joint and several and is not
a guaranty of collection. This Guaranty may not be revoked by Guarantor and
shall continue to be effective with respect to any Guaranteed Obligations
arising or created after any attempted revocation by Guarantor and after (if
Guarantor is a natural person) Guarantor's death (in which event this Guaranty
shall be binding upon Guarantor's estate and Guarantor's legal representatives
and heirs). The fact that at any time or from time to time the Guaranteed
Obligations may be increased or reduced shall not release or discharge the
obligation of Guarantor to Lender with respect to Guaranteed Obligations. This
Guaranty may be enforced by Lender and any subsequent holder of the Note and
shall not be discharged by the assignment or negotiation of all or part of the
Note.
1.4 Guaranteed Obligations Not Reduced by Offset. The Guaranteed
Obligations and the liabilities and obligations of Guarantor to Lender
hereunder, shall not be reduced, discharged or released because or by reason of
any existing or future offset, claim or defense of Borrower, or any other party,
against Lender or against payment of the Guaranteed Obligations, whether such
offset, claim or defense arises in connection with the Guaranteed Obligations
(or the transactions creating the Guaranteed Obligations) or otherwise.
1.5 Payment by Guarantor. If all or any part of the Guaranteed Obligations,
as limited by Section 1.2, shall not be punctually paid when due, whether at
maturity or earlier by acceleration or otherwise, Guarantor shall, immediately
upon demand by Lender, and without presentment, protest, notice of protest,
notice of non-payment, notice of intention to accelerate
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the maturity, notice of acceleration of the maturity, or any other notice
whatsoever, pay in lawful money of the United States of America, the amount due
on the Guaranteed Obligations to Lender at Lender's address as set forth herein.
Such demand(s) may be made at any time coincident with or after the time for
payment of all or part of the Guaranteed Obligations, and may be made from time
to time with respect to the same or different items of Guaranteed Obligations.
Such demand shall be deemed made, given and received in accordance with the
notice provisions hereof.
1.6 No Duty to Pursue Others. It shall not be necessary for Lender (and
Guarantor hereby waives any rights which Guarantor may have to require Lender),
in order to enforce such payment by Guarantor, first to (i) institute suit or
exhaust its remedies against Borrower or others liable on the Loan or the
Guaranteed Obligations or any other person, (ii) enforce Lender's rights against
any collateral which shall ever have been given to secure the Loan, (iii)
enforce Lender's rights against any other guarantors of the Guaranteed
Obligations, (iv) join Borrower or any others liable on the Guaranteed
Obligations in any action seeking to enforce this Guaranty, (v) exhaust any
remedies available to Lender against any collateral which shall ever have been
given to secure the Loan, or (vi) resort to any other means of obtaining payment
of the Guaranteed Obligations. Lender shall not be required to mitigate damages
or take any other action to reduce, collect or enforce the Guaranteed
Obligations.
1.7 Waivers. Guarantor agrees to the provisions of the Loan Documents, and
hereby waives notice of (i) any loans or advances made by Lender to Borrower,
(ii) acceptance of this Guaranty, (iii) any amendment or extension of the Note
or of any other Loan Documents, (iv) the execution and delivery by Borrower and
Lender of any other loan or credit agreement or of Borrower's execution and
delivery of any promissory notes or other documents arising under the Loan
Documents or in connection with the Property, (v) the occurrence of any breach
by Borrower or Event of Default, (vi) Lender's transfer or disposition of the
Guaranteed Obligations, or any part thereof, (vii) sale or foreclosure (or
posting or advertising for sale or foreclosure) of any collateral for the
Guaranteed Obligations, (viii) protest, proof of non-payment or default by
Borrower, or (ix) any other action at any time taken or omitted by Lender, and,
generally, all demands and notices of every kind in connection with this
Guaranty, the Loan Documents, any documents or agreements evidencing, securing
or relating to any of the Guaranteed Obligations and the obligations hereby
guaranteed.
1.8 Payment of Expenses. In the event that Guarantor should breach or fail
to timely perform any provisions of this Guaranty, Guarantor shall, immediately
upon demand by Lender, pay Lender all costs and expenses (including court costs
and reasonable attorneys' fees) incurred by Lender in the enforcement hereof or
the preservation of Lender's rights hereunder. The covenant contained in this
section shall survive the payment and performance of the Guaranteed Obligations.
1.9 Effect of Bankruptcy. In the event that, pursuant to any insolvency,
bankruptcy, reorganization, receivership or other action under any debtor relief
law, or any judgment, order or decision thereunder, Lender must rescind or
restore any payment, or any part thereof, received by Lender in satisfaction of
the Guaranteed Obligations, as set forth herein, any prior release or discharge
from the terms of this Guaranty given to Guarantor by Lender shall be without
effect, and this Guaranty shall remain in full force and effect. It is the
intention of Borrower and
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Guarantor that Guarantor's obligations hereunder shall not be discharged except
by Guarantor's performance of such obligations and then only to the extent of
such performance.
1.10 Deferment of Rights of Subrogation, Reimbursement and Contribution.
(a) Notwithstanding any payment or payments made by any Guarantor
hereunder, no Guarantor will assert or exercise any right of Lender or of such
Guarantor against Borrower to recover the amount of any payment made by such
Guarantor to Lender by way of subrogation, reimbursement, contribution,
indemnity, or otherwise arising by contract or operation of law, and such
Guarantor shall not have any right of recourse to or any claim against assets or
property of Borrower, whether or not the obligations of Borrower have been
satisfied, all of such rights being herein expressly waived by such Guarantor.
If any amount shall nevertheless be paid to a Guarantor by Borrower or another
Guarantor prior to payment in full of the Obligations (hereinafter defined),
such amount shall be held in trust for the benefit of Lender and shall forthwith
be paid to Lender to be credited and applied to the Obligations, whether matured
or unmatured. The provisions of this section shall survive the termination of
this Guaranty, and any satisfaction and discharge of Borrower by virtue of any
payment, court order or any applicable law.
(b) Notwithstanding the provisions of Section 1.10(a), each Guarantor
shall have and be entitled to (1) all rights of subrogation otherwise provided
by applicable law in respect of any payment it may make or be obligated to make
under this Guaranty, and (2) all claims it would have against Borrower or any
other Guarantor in the absence of Section 1.10(a) and to assert and enforce
same, in each case on and after, but at no time prior to, the date (the
"Subrogation Trigger Date") which is 91 days after the date on which all sums
owed to Lender under the Loan Documents (the "Obligations") have been paid in
full, if and only if (x) no Event of Default of the type described in Sections
22(f) or 22(g) of the Mortgage with respect to Borrower or any other Guarantor
has existed at any time on and after the date of this Guaranty to and including
the Subrogation Trigger Date and (y) the existence of each Guarantor's rights
under this Section 1.10(b) would not make such Guarantor a creditor (as defined
in the Bankruptcy Code, as such term is hereinafter defined) of Borrower or any
other Guarantor in any insolvency, bankruptcy, reorganization or similar
proceeding commenced on or prior to the Subrogation Trigger Date.
1.11 Bankruptcy Code Waiver. It is the intention of the parties that no
Guarantor shall be deemed to be a "creditor" or "creditors" (as defined in
Section 101 of the United States Bankruptcy Code (the "Bankruptcy Code")) of
Borrower, or any such Guarantor, by reason of the existence of this Guaranty, in
the event that Borrower or any such Guarantor, becomes a debtor in any
proceeding under the Bankruptcy Code, and in connection herewith, such Guarantor
hereby waives any such right as a "creditor" under the Bankruptcy Code. This
waiver is given to induce Lender to make the Loan evidenced by the Note to
Borrower. After the Loan is paid in full and there shall be no obligations or
liabilities under this Guaranty outstanding, this waiver shall be deemed to be
terminated.
1.12 Borrower. The term "Borrower" as used herein shall include any new or
successor corporation, association, partnership (general or limited), joint
venture, trust or other
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individual or organization formed as a result of any merger, reorganization,
sale, transfer, devise, gift or bequest of Borrower or any interest in Borrower.
ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR'S OBLIGATIONS
Guarantor hereby consents and agrees to each of the following, and agrees
that Guarantor's obligations under this Guaranty shall not be released,
diminished, impaired, reduced or adversely affected by any of the following, and
waives any common law, equitable, statutory or other rights (including without
limitation rights to notice) which Guarantor might otherwise have as a result of
or in connection with any of the following:
2.1 Modifications. Any renewal, extension, increase, modification,
alteration or rearrangement of all or any part of the Guaranteed Obligations,
Note, Loan Documents, or other document, instrument, contract or understanding
between Borrower and Lender, or any other parties, pertaining to the Guaranteed
Obligations or any failure of Lender to notify Guarantor of any such action.
2.2 Adjustment. Any adjustment, indulgence, forbearance or compromise that
might be granted or given by Lender to Borrower or any Guarantor.
2.3 Condition of Borrower or Guarantor. The insolvency, bankruptcy,
arrangement, adjustment, composition, liquidation, disability, dissolution or
lack of power of Borrower, Guarantor or any other party at any time liable for
the payment of all or part of the Guaranteed Obligations or the Debt; or any
dissolution of Borrower or Guarantor, or any sale, lease or transfer of any or
all of the assets of Borrower or Guarantor, or any changes in the shareholders,
partners or members of Borrower or Guarantor; or any reorganization of Borrower
or Guarantor.
2.4 Invalidity of Guaranteed Obligations. The invalidity, illegality or
unenforceability of all or any part of the Guaranteed Obligations, or any
document or agreement executed in connection with the Guaranteed Obligations,
for any reason whatsoever, including without limitation the fact that (i) the
Guaranteed Obligations, or any part thereof, exceed the amount permitted by law,
(ii) the act of creating the Guaranteed Obligations or any part thereof is ultra
vires, (iii) the officers or representatives executing the Note or the other
Loan Documents or otherwise creating the Guaranteed Obligations acted in excess
of their authority, (iv) the Guaranteed Obligations violate applicable usury
laws, (v) Borrower has valid defenses, claims or offsets (whether at law, in
equity or by agreement) which render the Guaranteed Obligations wholly or
partially uncollectible from Borrower, (vi) the creation, performance or
repayment of the Guaranteed Obligations (or the execution, delivery and
performance of any document or instrument representing part of the Guaranteed
Obligations or executed in connection with the Guaranteed Obligations, or given
to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible
or unenforceable, or (vii) the Note or any of the other Loan Documents have been
forged or otherwise are irregular or not genuine or authentic, it being agreed
that
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Guarantor shall remain liable hereon regardless of whether Borrower or any other
person be found not liable on the Guaranteed Obligations or any part thereof for
any reason.
2.5 Release of Obligors. Any full or partial release of the liability of
Borrower on the Guaranteed Obligations, or any part thereof, or of any
co-guarantors, or any other person or entity now or hereafter liable, whether
directly or indirectly, jointly, severally, or jointly and severally, to pay,
perform, guarantee or assure the payment of the Guaranteed Obligations, or any
part thereof, it being recognized, acknowledged and agreed by Guarantor that
Guarantor may be required to pay the Guaranteed Obligations in full without
assistance or support of any other party, and Guarantor has not been induced to
enter into this Guaranty on the basis of a contemplation, belief, understanding
or agreement that other parties will be liable to pay or perform the Guaranteed
Obligations, or that Lender will look to other parties to pay or perform the
Guaranteed Obligations.
2.6 Other Collateral. The taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any part of
the Guaranteed Obligations.
2.7 Release of Collateral. Any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including without limitation
negligent, willful, unreasonable or unjustifiable impairment) of any collateral,
property or security, at any time existing in connection with, or assuring or
securing payment of, all or any part of the Guaranteed Obligations.
2.8 Care and Diligence. The failure of Lender or any other party to
exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such
collateral, property or security, including but not limited to any neglect,
delay, omission, failure or refusal of Lender (i) to take or prosecute any
action for the collection of any of the Guaranteed Obligations, or (ii) to
foreclose, or initiate any action to foreclose, or, once commenced, prosecute to
completion any action to foreclose upon any security therefor, or (iii) to take
or prosecute any action in connection with any instrument or agreement
evidencing or securing all or any part of the Guaranteed Obligations.
2.9 Unenforceability. The fact that any collateral, security, security
interest or lien contemplated or intended to be given, created or granted as
security for the repayment of the Guaranteed Obligations, or any part thereof,
shall not be properly perfected or created, or shall prove to be unenforceable
or subordinate to any other security interest or lien, it being recognized and
agreed by Guarantor that Guarantor is not entering into this Guaranty in
reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations.
2.10 Offset. The Note, the Guaranteed Obligations and the liabilities and
obligations of Guarantor to Lender hereunder, shall not be reduced, discharged
or released because of or by reason of any existing or future right of offset,
claim or defense of Borrower against Lender, or any other party, or against
payment of the Guaranteed Obligations, whether such right of offset, claim or
defense arises in connection with the Guaranteed Obligations (or the
transactions creating the Guaranteed Obligations) or otherwise.
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2.11 Merger. The reorganization, merger or consolidation of Borrower into
or with any other corporation or entity.
2.12 Preference. Any payment by Borrower to Lender is held to constitute a
preference under bankruptcy laws, or for any reason Lender is required to refund
such payment or pay such amount to Borrower or someone else.
2.13 Other Actions Taken or Omitted. Any other action taken or omitted to
be taken with respect to the Loan Documents, the Guaranteed Obligations, or the
security and collateral therefor, whether or not such action or omission
prejudices Guarantor or increases the likelihood that Guarantor will be required
to pay the Guaranteed Obligations pursuant to the terms hereof, it is the
unambiguous and unequivocal intention of Guarantor that Guarantor shall be
obligated to pay the Guaranteed Obligations when due, notwithstanding any
occurrence, circumstance, event, action, or omission whatsoever, whether or not
contemplated, and whether or not otherwise or particularly described herein,
which obligation shall be deemed satisfied only upon the full and final payment
and satisfaction of the Guaranteed Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Loan Documents and extend credit to
Borrower, Guarantor represents and warrants to Lender as follows:
3.1 Benefit. Guarantor is an affiliate of Borrower, is the owner of a
direct or indirect interest in Borrower, and has received, or will receive,
direct or indirect benefit from the making of this Guaranty with respect to the
Guaranteed Obligations.
3.2 Familiarity and Reliance. Guarantor is familiar with, and has
independently reviewed books and records regarding, the financial condition of
Borrower and is familiar with the value of any and all collateral intended to be
created as security for the payment of the Note or Guaranteed Obligations;
however, Guarantor is not relying on such financial condition or the collateral
as an inducement to enter into this Guaranty.
3.3 No Representation by Lender. Neither Lender nor any other party has
made any representation, warranty or statement to Guarantor in order to induce
Guarantor to execute this Guaranty.
3.4 Guarantor's Financial Condition. As of the date hereof, and after
giving effect to this Guaranty and the contingent obligation evidenced hereby,
Guarantor is, and will be, solvent, and has and will have assets which, fairly
valued, exceed its obligations, liabilities (including contingent liabilities)
and debts, and has and will have property and assets sufficient to satisfy and
repay its obligations and liabilities.
3.5 Legality. The execution, delivery and performance by Guarantor of this
Guaranty and the consummation of the transactions contemplated hereunder do not,
and will not, contravene or conflict with any law, statute or regulation
whatsoever to which Guarantor is subject or constitute a default (or an event
which with notice or lapse of time or both would
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constitute a default) under, or result in the breach of, any indenture,
mortgage, deed of trust, charge, lien, or any contract, agreement or other
instrument to which Guarantor is a party or which may be applicable to
Guarantor. This Guaranty is a legal and binding obligation of Guarantor and is
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to the enforcement of
creditors' rights.
3.6 Survival. All representations and warranties made by Guarantor herein
shall survive the execution hereof.
3.7 Review of Documents. Guarantor has examined the Note and all of the
Loan Documents.
3.8 Litigation. Except as otherwise disclosed to Lender, there are no
proceedings pending or, so far as Guarantor knows, threatened before any court
or administrative agency which, if decided adversely to Guarantor, would
materially adversely affect the financial condition of Guarantor or the
authority of Guarantor to enter into, or the validity or enforceability of, this
Guaranty.
3.9 Tax Returns. Guarantor has filed all required federal, state and local
tax returns and has paid all taxes as shown on such returns as they have become
due. To the best of Guarantor's knowledge after due investigation and inquiry,
no claims have been assessed and are unpaid with respect to such taxes.
ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
4.1 Subordination of All Guarantor Claims. As used herein, the term
"Guarantor Claims" shall mean all debts and liabilities of Borrower to
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligations of Borrower thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such debts or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by Guarantor. The Guarantor Claims shall include without limitation
all rights and claims of Guarantor against Borrower (arising as a result of
subrogation or otherwise) as a result of Guarantor's payment of all or a portion
of the Guaranteed Obligations to the extent the provisions of Section 1.10
hereof are unenforceable. Upon the occurrence and during the continuance of an
Event of Default or the occurrence and continuance of an event which would, with
the giving of notice or the passage of time, or both, constitute an Event of
Default, Guarantor shall not receive or collect, directly or indirectly, from
Borrower or any other party any amount upon the Guarantor Claims.
4.2 Claims in Bankruptcy. In the event of receivership, bankruptcy,
reorganization, arrangement, debtor's relief, or other insolvency proceedings
involving Borrower as debtor, Lender shall have the right to prove its claim in
any such proceeding so as to establish its rights hereunder and receive directly
from the receiver, trustee or other court custodian dividends and payments which
would otherwise be payable upon the Guarantor Claims. Guarantor hereby
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assigns such dividends and payments to Lender. Should Lender receive, for
application upon the Guaranteed Obligations, any such dividend or payment which
is otherwise payable to Guarantor, and which, as between Borrower and Guarantor,
shall constitute a credit upon the Guarantor Claims, then upon payment to Lender
in full of the Guaranteed Obligations, Guarantor shall become subrogated to the
rights of Lender to the extent that such payments to Lender on the Guarantor
Claims have contributed toward the liquidation of the Guaranteed Obligations,
and such subrogation shall be with respect to that portion of the Guaranteed
Obligations which would have been unpaid if Lender had not received dividends or
payments upon the Guarantor Claims.
4.3 Payments Held in Trust. In the event that, notwithstanding anything to
the contrary in this Guaranty, Guarantor should receive any funds, payment,
claim or distribution which is prohibited by this Guaranty, Guarantor agrees to
hold in trust for Lender an amount equal to the amount of all funds, payments,
claims or distributions so received, and agrees that it shall have absolutely no
dominion over the amount of such funds, payments, claims or distributions so
received except to pay them promptly to Lender, and Guarantor covenants promptly
to pay the same to Lender.
4.4 Liens Subordinate. Guarantor agrees that any liens, security interests,
judgment liens, charges or other encumbrances upon Borrower's assets securing
payment of the Guarantor Claims shall be and remain inferior and subordinate to
any liens, security interests, judgment liens, charges or other encumbrances
upon Borrower's assets securing payment of the Guaranteed Obligations,
regardless of whether such encumbrances in favor of Guarantor or Lender
presently exist or are hereafter created or attach. Without the prior written
consent of Lender, Guarantor shall not (i) exercise or enforce any creditor's
right it may have against Borrower, or (ii) foreclose, repossess, sequester or
otherwise take steps or institute any action or proceedings (judicial or
otherwise, including without limitation the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any liens, mortgages, deeds of trust, security interests,
collateral rights, judgments or other encumbrances on assets of Borrower held by
Guarantor.
ARTICLE V
MISCELLANEOUS
5.1 Waiver. No failure to exercise, and no delay in exercising, on the part
of Lender, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right. The rights of Lender hereunder shall
be in addition to all other rights provided by law. No modification or waiver of
any provision of this Guaranty, nor consent to departure therefrom, shall be
effective unless in writing and no such consent or waiver shall extend beyond
the particular case and purpose involved. No notice or demand given in any case
shall constitute a waiver of the right to take other action in the same, similar
or other instances without such notice or demand.
5.2 Notices. Any notice, demand, statement, request or consent made
hereunder shall be in writing and shall be deemed to be received by the
addressee on the day such notice is tendered to a nationally recognized
overnight delivery service or on the third day following the
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day such notice is deposited with the United States Postal Service first class
certified mail, return receipt requested, in either instance, addressed to the
address, as set forth below, of the party to whom such notice is to be given, or
to such other address as either party shall in like manner designate in writing.
The addresses of the parties hereto are as follows:
Guarantor:
RAMCO-GERSHENSON PROPERTIES L.P.
31500 Northwestern Highway, Suite 300
Farmington Hills, MI 48334
Attn: Dennis Gershenson, President
Fax: (248) 350-9925
with a copy to:
Honigman Miller Schwartz and Cohn LLP
38500 Woodward Avenue, Suite 100
Bloomfield Hills, MI 48304
Attn: Alan M. Hurvitz, Esq.
Fax: (248) 566-8455
Lender:
JPMorgan Chase Bank, N.A.
c/o ARCap Servicing, Inc.
5221 N O'Connor Blvd., Suite 600
Irving, Texas 75039
Attention: Wesley Wolfe
Facsimile No.: (972) 868-5493
with a copy to:
Alston & Bird LLP
90 Park Avenue
New York, New York 10016
Attention: Carson Leonard, Esq.
Fax.: 212-210-9444
5.3 Governing Law; Jurisdiction. This Guaranty shall be governed by and
construed in accordance with the laws of the State in which the real property
encumbered by the Mortgage is located, without regard to conflict of law
provisions that would otherwise require the application of the laws of another
jurisdiction, and the applicable laws of the United States of America. Guarantor
hereby irrevocably submits to the jurisdiction of any court of competent
jurisdiction located in the state in which the Property is located in connection
with any proceeding out of or relating to this Guaranty.
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5.4 Invalid Provisions. If any provision of this Guaranty is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term of this Guaranty, such provision shall be fully severable and this
Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Guaranty, unless such continued effectiveness of this
Guaranty, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed herein.
5.5 Amendments. This Guaranty may be amended only by an instrument in
writing executed by the party or an authorized representative of the party
against whom such amendment is sought to be enforced.
5.6 Parties Bound; Assignment. This Guaranty shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns and legal representatives, provided, however, that Guarantor may not,
without the prior written consent of Lender, assign any of its rights, powers,
duties or obligations hereunder.
5.7 Headings. Section headings are for convenience of reference only and
shall in no way affect the interpretation of this Guaranty.
5.8 Recitals. The recital and introductory paragraphs hereof are a part
hereof, form a basis for this Guaranty and shall be considered prima facie
evidence of the facts and documents referred to therein.
5.9 Counterparts. To facilitate execution, this Guaranty may be executed in
as many counterparts as may be convenient or required. It shall not be necessary
that the signature or acknowledgment of, or on behalf of, each party, or that
the signature of all persons required to bind any party, or the acknowledgment
of such party, appear on each counterpart. All counterparts shall collectively
constitute a single instrument. It shall not be necessary in making proof of
this Guaranty to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, and the respective
acknowledgments of, each of the parties hereto. Any signature or acknowledgment
page to any counterpart may be detached from such counterpart without impairing
the legal effect of the signatures or acknowledgments thereon and thereafter
attached to another counterpart identical thereto except having attached to it
additional signature or acknowledgment pages.
5.10 Financial Statements. Guarantor shall furnish or cause to be furnished
to Lender the following:
(a) within one hundred twenty (120) days after the close of each
fiscal year of Guarantor, a balance sheet of Guarantor dated as of the close of
such fiscal year; and
(b) from time to time, such additional financial statements and
financial information as Lender shall require.
All financial statements shall include, among other things, a balance
statement, a statement of profit and loss, disclosure of all contingent
liabilities and changes in financial
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condition and a statement of net worth, together with such supporting schedules
and documentation as Lender shall require. Notwithstanding the foregoing or
anything herein to the contrary, Guarantor may deliver the financial statements
of its majority owner, Ramco-Gershenson Properties Trust, a Maryland real estate
trust, in lieu of delivery of its individual financial statements. All financial
statements shall be certified by Guarantor.
5.11 Intentionally Omitted.
5.12 Rights and Remedies. If Guarantor becomes liable for any indebtedness
owing by Borrower to Lender, by endorsement or otherwise, other than under this
Guaranty, such liability shall not be in any manner impaired or affected hereby
and the rights of Lender hereunder shall be cumulative of any and all other
rights that Lender may ever have against Guarantor. The exercise by Lender of
any right or remedy hereunder or under any other instrument, or at law or in
equity, shall not preclude the concurrent or subsequent exercise of any other
right or remedy.
5.13 ENTIRETY. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF
GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR'S GUARANTY OF THE GUARANTEED
OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND LENDER AS A
FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF
DEALING BETWEEN GUARANTOR AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE
PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE
USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY
AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LENDER.
5.14 WAIVER OF RIGHT TO TRIAL BY JURY. GUARANTOR AND LENDER HEREBY AGREE
NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES
ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE MORTGAGE, OR THE OTHER LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY GUARANTOR AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY
EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD
OTHERWISE ACCRUE. EITHER PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY GUARANTOR AND
LENDER.
(SIGNATURE PAGE FOLLOWS)
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EXECUTED as of the day and year first above written.
GUARANTOR:
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust,
Maryland real estate investment
trust, its General Partner
By: /s/ Richard J. Smith
------------------------------------
Name: Richard J. Smith
Title: Chief Financial Officer
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