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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