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EXHIBIT 10.9
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
THIS UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE is made
as of this 30th day of October, 1997, by Ramco-Gershenson Properties Trust, a
Massachusetts real estate investment trust, having its principal place of
business and chief executive office at 27600 Northwestern Highway, Suite 200,
Southfield, Michigan 48034 (the "Guarantor"), in favor of BankBoston, N.A., as
Agent on behalf of the Banks, having an office at 100 Federal Street, Boston,
Massachusetts 02110 (the "Agent").
WHEREAS, the Guarantor is the general partner and owner of
approximately 68.77% of the partnership interests of Ramco-Gershenson
Properties, L.P., a Delaware limited partnership (the "Debtor"); and
WHEREAS, the Agent (in its capacity as agent and in its
capacity as a Bank) is entering into an Unsecured Term Loan Agreement of even
date herewith (as the same may hereafter be amended, supplemented or modified
from time to time, the "Term Loan Agreement") with the Guarantor and the Debtor,
whereby the Debtor will become liable for the "Obligations" (as that term is
defined in the Term Loan Agreement) including, without limitation, loans and
other financial accommodations from the Banks (including the Agent in its
capacity as a Bank thereunder) under the Term Loan Agreement of $45,000,000 (all
Obligations being hereinafter referred to as the "Indebtedness"); and
WHEREAS, it is a condition precedent to the effectiveness of
the Term Loan Agreement that this Guaranty be executed and delivered by the
Guarantor in favor of the Agent; and
WHEREAS, the Guarantor will derive substantial benefit and
advantage from the financial accommodations to the Debtor set forth in the Term
Loan Agreement including the loans and advances made to the Debtor thereunder,
and it will be to the Guarantor's direct interest and economic benefit to assist
the Debtor in procuring said financial accommodations from the Banks;
NOW, THEREFORE, for and in consideration of the premises and
in order to induce the Agent and the Banks to enter into the Term Loan Agreement
and the Banks to make loans thereunder, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Guarantor hereby agrees as follows (unless otherwise defined herein all
capitalized terms used herein shall have their meanings as set forth in the Term
Loan Agreement):
1. Guaranty of Payment.
(a) The Guarantor hereby unconditionally guaranties the full
and prompt payment to 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.
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(b) The Guarantor acknowledges 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 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 Guarantor agrees 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 Guarantor agrees 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 the Guarantor, (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, indorsement, collateral or other agreement held by the Agent or
the Banks therefor or with respect thereto, whether or not furnished by the
Guarantor. The obligations of the Guarantor to repay the Indebtedness hereunder
shall be unlimited. The Guarantor shall have no right of subrogation with
respect to any payments made by the Guarantor hereunder, and hereby waives 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 Guarantor agrees that it will not take any
action to enforce any obligations of the Debtor to the 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 the Guarantor or
in its own name a claim for any and all indebtedness owing to the Guarantor by
the Debtor, vote such claim and to apply the proceeds of any such claim to the
Indebtedness.
(b) Except as otherwise provided for in Section 8.7 of the
Term Loan Agreement, for the further security of the Banks and without in any
way diminishing the liability of the Guarantor, following the occurrence of an
Event of Default under the Term Loan Agreement and
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acceleration of the Indebtedness, all debts and liabilities, present or future
of the Debtor to the Guarantor and all monies received from the Debtor or for
its account by the Guarantor 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 the 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
Guarantor to be the final, complete and exclusive expression of the guaranty
agreement between the Guarantor 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 Guarantor or if
there shall be pending any bankruptcy or insolvency case or proceeding with
respect to Guarantor under federal bankruptcy law or any other applicable law or
in connection with the insolvency of Guarantor, or if a liquidator, receiver, or
trustee shall have been appointed for Guarantor or Guarantor's properties or
assets, 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 Agent on behalf of the Banks allowed in any proceedings relative to
Guarantor, or any of Guarantor's properties or assets, and, irrespective of
whether the indebtedness or other obligations of Debtor guaranteed hereby shall
then be due and payable, by declaration or otherwise, 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 Debtor guaranteed hereby, and to collect and receive any moneys
or other property payable or deliverable on any such claim. Guarantor covenants
and agrees that upon the commencement of a voluntary or involuntary bankruptcy
proceeding by or against Debtor or any other guarantor, Guarantor shall not seek
a supplemental stay or otherwise pursuant to 11 U.S.C. ss.105 or any other
provision of the Bankruptcy Reform Act of 1978, as amended, 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
Agent to enforce any rights of Agent against Guarantor by virtue of this
Guaranty or otherwise.
4. Certain Rights and Obligations.
(a) The Guarantor authorizes the Agent and the Banks, without
notice, demand or any reservation of rights against the Guarantor and without
affecting the Guarantor's 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 partthereof or grant
other indulgences to the Debtor or others; (ii) to accept from any Person and
hold collateral for the payment of the Indebtedness or any part thereof, and to
modify, exchange, enforce or refrain from enforcing, or release, compromise,
settle, waive, subordinate or surrender, with or without
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consideration, such collateral or any part thereof; (iii) to accept and hold any
indorsement or guaranty of payment of the Indebtedness or any part thereof, and
to discharge, release or substitute any such obligation of any such indorser 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 indorser, guarantor, or Person; (iv) to dispose of
any and all collateral securing the Indebtedness in any manner as 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 Banks in
their sole discretion may determine; (v) except as otherwise provided in the
Term 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 Guarantor as a guarantor or surety in whole or in part,
and in no case shall the Agent or the Banks be responsible or shall the
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, the
Guarantor 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 the Guarantor, to the
Debtor or to any other Person, except as required pursuant to the Term 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 Guarantor hereby waives.
(c) The Guarantor's obligation hereunder shall not be affected
by any of the following, all of which the Guarantor hereby waives: (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
Guarantor's obligation hereunder; (ii) the invalidity, unenforceability,
propriety of manner of enforcement of, or loss or change in priority of any such
security interestor other lien or guaranty of the Indebtedness; (iii) any
failure to protect, preserve or insure any such collateral; (iv) failure of the
Guarantor 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,
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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 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; (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 the Guarantor may have at
any time against the Agent, any Bank or the Debtor in connection herewith or any
unrelated transaction; (xi) the Banks' 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 Banks' claims for
repayment of the Indebtedness under sections 502 or 506 of the United States
Bankruptcy Code; or (xiv) any other fact or circumstance which might otherwise
constitute grounds at law or equity for the discharge or release of the
Guarantor from its obligations hereunder, all whether or not the Guarantor shall
have had notice or knowledge of any act or omission referred to in the foregoing
clauses (i) through (xiv) of this paragraph.
5. Representations and Warranties.
The Guarantor further represents and warrants to the Agent and
the Banks that: (i) it is a business 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; (ii) it 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 the Guarantor and constitutes a legal,
valid and binding obligation of the Guarantor enforceable against the Guarantor
in accordance with its terms.
6. Security; Assets - Negative Pledge.
The Guarantor warrants and represents to and covenants with
the Agent and the Banks that: (i) the Guarantor has good, indefeasible and
merchantable title to all of its assets, and (ii) the 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 Term Loan Agreement shall have been terminated. Payment of
all of the Indebtedness from time to time shall not operate
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as a discontinuance of this Guaranty. The Guarantor further agrees 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 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 Guarantor also guaranties 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.
9. Assumption of Liens and Indebtedness.
To the extent that the 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 Term Loan
Agreement, the 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 Term Loan Agreement and (ii) it shall be liable for the payment of the
Indebtedness secured thereby. The Guarantor's obligations under this Section 9
shall be in addition to its 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 the "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 the Guarantor shall have been
transferred and (ii) any other corporation into or with which the Debtor or the
Guarantor shall have been merged, consolidated, reorganized, or absorbed.
(b) Without limiting any other right of the Banks, whenever
the Agentor the Banks have the right to declare any of the Indebtedness to be
immediately due and payable
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(whether or not it has been so declared), subject to the notice requirements and
other limitations set forth in Section 13 of the Term Loan Agreement, the Banks
at their sole election without notice to the undersigned may appropriate and set
off against the Indebtedness: (i) any and all indebtedness or other moneys due
or to become due to the Guarantor by the Agent or the Banks in any capacity and
(ii) any credits or other property belonging to the 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 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 Guarantor's obligation hereunder is to pay the
Indebtedness in full when due according to the Term 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 the Guarantor
and the Agent or the Banks and no act, delay or omission by 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 Banks hereunder are
cumulative.
(e) The term "Banks" as used herein shall have the same
meaning as in the Term Loan Agreement and this Agreement shall inure to the
benefit of the Agent and such Banks.
(f) Captions of the sections of this Guaranty are solely for
the convenience of the Agent, the Banks and the Guarantor, 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). THE GUARANTOR AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS GUARANTY
MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS
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TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON THE GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN THE
OPENING PARAGRAPH HEREOF. THE 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.
11. Waivers.
(A) THE GUARANTOR WAIVES THE BENEFIT OF ALL VALUATION,
APPRAISAL AND EXEMPTION LAWS.
(B) IN THE EVENT OF A DEFAULT UNDER THE TERM LOAN AGREEMENT,
THE GUARANTOR HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR
TO THE EXERCISE BY THE AGENT OR THE BANKS OF THEIR RIGHTS TO REPOSSESS THE
COLLATERAL WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE
COLLATERAL WITHOUT PRIOR NOTICE OR HEARING. THE GUARANTOR ACKNOWLEDGES THAT IT
HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS TRANSACTION AND
THIS GUARANTY.
(C) THE 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.
All persons having a claim against the Guarantor, the general
partner of the Debtor whose signature is affixed hereto as said general partner,
hereunder or in connection with any matter that is subject hereof shall look
solely to the trust assets of the trust, and in no event shall the obligations
of the Guarantor be enforceable against any shareholder, trustee, officer,
employee or agent of the Guarantor personally.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be executed as of the day and year first written above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /S/ Dennis Gershenson, President
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Dennis Gershenson, President
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