UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE

 

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                                                                    Exhibit 10.2

 

                UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE

 

     THIS UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE (this "Guaranty") is

made as of this 13th 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 (including the Swing Line Lender and the Issuing Bank)

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 (including the Swing Line Lender and the

Issuing Bank), 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 Master 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 $250,000,000.00

(as the Total Commitment and the Obligations may be increased to $350,000,000.00

as provided in the Loan Agreement) (all Obligations, as the same may be

increased pursuant to the Loan Agreement, 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, issue Letters of Credit and provide other financial accommodations

thereunder, and for other good and valuable consideration, the receipt and

sufficiency of which are hereby acknowledged, the

 

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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, issuance

of Letter 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

 

 

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such 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 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

 

 

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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, 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

 

 

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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 r