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Exhibit 10.53
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
THIS
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE (this "Guaranty")
is
made as of this 21st day of December, 2005, by RAMCO-GERSHENSON
PROPERTIES
TRUST, a Maryland real estate investment trust, having its
principal place of
business and chief executive office at 31500 Northwestern Highway,
Suite 300,
Farmington Hills, Michigan 48334 ("Trust"), and the other Persons,
if any, now
or hereafter a party hereto as a Subsidiary Guarantor (the Trust
and such other
Subsidiary Guarantors are hereinafter referred to collectively as
the
"Guarantors"), in favor of KeyBank National Association, a national
bank
organized under the laws of the United States of America, its
successors and
assigns, for itself ("KeyBank") and in its capacity as agent (the
"Agent") for
certain other lenders that may now be or may hereafter become a
party to the
"Loan Agreement" (as such term is defined below), having an office
at 1200
Abernathy Road, Suite 1550, Atlanta, Georgia 30328, Attn: Dan
Silbert. KeyBank
(except when acting as the Agent) and each other lending
institution which may
now be or may hereafter become a party to the Loan Agreement, shall
be referred
to collectively herein as the "Banks."
WHEREAS, Ramco-Gershenson Properties, L.P., a Delaware limited
partnership
(the "Debtor"), the Trust, KeyBank, the Agent, and the Banks are
parties to that
certain Unsecured Term Loan Agreement dated of even date herewith
(as the same
may be modified, amended, increased, renewed or restated, the "Loan
Agreement"),
pursuant to which the Debtor is liable for the "Obligations" (as
such term is
defined in the Loan Agreement), including without limitation, loans
and other
financial accommodations from the Banks (including the Agent in its
capacity as
a Bank thereunder) in the aggregate principal amount of up to
$22,600,000.00
(all Obligations being hereinafter referred to as the
"Indebtedness"); and
WHEREAS, it is a condition precedent to the effectiveness of the
Loan
Agreement that this Guaranty be executed and delivered by the
Guarantor in favor
of the Agent; and
WHEREAS, the Trust is the sole general partner of and the owner of
at least
a 84.17% of the ownership interests in Debtor, and the Debtor is
the owner of
all or a majority of the ownership interests in each other
Guarantor; and
WHEREAS, the Borrower and the Subsidiary Guarantors are mutually
dependent
upon each other in the conduct of their business as an integrated
operation and
each of the Guarantors will derive substantial benefit and
advantage from the
financial accommodations to the Debtor set forth in the Loan
Agreement including
the loans and advances made to the Debtor thereunder, and it will
be to the
Guarantors' direct interest and economic benefit to assist the
Debtor in
procuring said financial accommodations from the Banks by executing
and
delivering this Guaranty;
NOW,
THEREFORE, for and in consideration of the premises and in order
to
induce the Agent and the Banks to enter into the Loan Agreement and
the Banks to
make loans and provide other financial accommodations thereunder,
and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby
acknowledged, the Guarantors hereby agree as follows (unless
otherwise defined
herein all capitalized terms used herein shall have their meanings
as set forth
in the Loan Agreement):
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1.
Guaranty of
Payment.
(a) The Guarantors hereby, jointly and severally,
unconditionally
guarantee the full and prompt payment to the Banks and the Agent,
on behalf of
the Banks, when due, upon demand, at maturity or by reason of
acceleration or
otherwise and at all times thereafter, of any and all of the
Indebtedness.
(b) The Guarantors acknowledge that valuable consideration
supports
this Guaranty, including, without limitation, the consideration set
forth in the
recitals above as well as any commitment to lend, extension of
credit or other
financial accommodation, whether heretofore or hereafter made by
the Banks to
the Debtor; any extension, renewal, increase or replacement of any
of the
Indebtedness; any forbearance with respect to any of the
Indebtedness or
otherwise; any cancellation of an existing guaranty; any purchase
of any of the
Debtor's assets by the Banks; or any other valuable
consideration.
(c) The Guarantors agree that all payments under this Guaranty
shall
be made in United States currency and the same manner as provided
for the
Indebtedness.
2.
The Banks' Costs
and Expenses.
The
Guarantors jointly and severally agree to pay on demand, if not
paid by
the Debtor, all reasonable costs and expenses of every kind
incurred by the
Agent or the Banks: (a) in enforcing this Guaranty, (b) in
collecting any of the
Indebtedness from the Debtor or Guarantors, (c) in realizing upon
or protecting
any collateral for this Guaranty or for payment of any of the
Indebtedness, and
(d) for any other purpose related to the Indebtedness or this
Guaranty. "Costs
and expenses" as used in the preceding sentence shall include,
without
limitation, the actual reasonable attorneys' fees incurred by the
Agent or any
Bank in retaining counsel for advice, suit, appeal, any insolvency
or other
proceedings under the United States Bankruptcy Code or otherwise,
or for any
purpose specified in the preceding sentence.
3.
Nature of
Guaranty: Continuing, Absolute and Unconditional.
(a) This Guaranty is and is intended to be a continuing guaranty
of
payment of the Indebtedness, independent of and in addition to any
other
guaranty, endorsement, collateral or other agreement held by the
Agent or the
Banks therefor or with respect thereto, whether or not furnished by
any
Guarantor. The obligation of the Guarantors to repay the
Indebtedness hereunder
shall be unlimited. The Guarantors shall have no right of
subrogation with
respect to any payments made by Guarantors hereunder, and hereby
waive any
benefit of, and any right to participate in, any security or
collateral given to
the Agent or the Banks to secure payment of the Indebtedness, until
all of the
Indebtedness outstanding or contracted or committed for (whether or
not
outstanding) is paid in full, and the Guarantors agree that none of
them will
take any action to enforce any obligations of the Debtor to such
Guarantor prior
to the Indebtedness being paid in full, provided that, in the event
of the
bankruptcy or insolvency of the Debtor, the Agent, on behalf of the
Banks, shall
be entitled notwithstanding the foregoing, to file in the name of
any Guarantor
or in its own name a claim for any and all indebtedness owing to
such Guarantor
by the Debtor, vote such claim and to apply the proceeds of any
such claim to
the Indebtedness.
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(b) Except as otherwise provided for in Section 8.7 of the
Unsecured
Master Loan Agreement, for the further security of the Banks and
without in any
way diminishing the liability of the Guarantors, following the
occurrence of an
Event of Default under the Loan Agreement and acceleration of the
Indebtedness,
all debts and liabilities, present or future of the Debtor to
Guarantors and all
monies received from the Debtor or for its account by Guarantors in
respect
thereof shall be received in trust for the Banks and forthwith upon
receipt
shall be paid over to the Agent, on behalf of the Banks, until all
of the
Indebtedness has been paid in full. This assignment and
postponement is
independent of and severable from this Guaranty and shall remain in
full effect
whether or not any Guarantor is liable for any amount under this
Guaranty.
(c) This Guaranty is absolute and unconditional and shall not
be
changed or affected by any representation, oral agreement, act or
thing
whatsoever, except as herein provided. This Guaranty is intended by
the
Guarantors to be the final, complete and exclusive expression of
the guaranty
agreement between the Guarantors, the Banks and the Agent, on
behalf of the
Banks. No modification or amendment of any provision of this
Guaranty shall be
effective unless in writing and signed by a duly authorized officer
of the
Agent, on behalf of the Banks.
(d) In the event of the business failure of any Guarantor or if
there
shall be pending any bankruptcy or insolvency case or proceeding
with respect to
any Guarantor under the United States Bankruptcy Code or any other
applicable
law or in connection with the insolvency of any Guarantor, or if a
liquidator,
receiver, or trustee shall have been appointed for any Guarantor or
any
Guarantor's properties or assets, the Agent on behalf of the Banks
may file such
proofs of claim and other papers or documents as may be necessary
or advisable
in order to have the claims of the Agent on behalf of the Banks
allowed in any
proceedings relative to such Guarantor, or any of such Guarantor's
properties or
assets, and, irrespective of whether the Indebtedness or other
Obligations of
the Debtor guaranteed hereby shall then be due and payable, by
declaration or
otherwise, the Agent on behalf of the Banks shall be entitled and
empowered to
file and prove a claim for the whole amount of any sums or sums
owing with
respect to the Indebtedness or other Obligations of the Debtor
guaranteed
hereby, and to collect and receive any moneys or other property
payable or
deliverable on any such claim. Guarantors covenant and agree that
upon the
commencement of a voluntary or involuntary bankruptcy proceeding by
or against
the Debtor or any other Guarantor, no Guarantor shall seek a
supplemental stay
or otherwise pursuant to 11 U.S.C. Section 105 or any other
provision of the
United States Bankruptcy Code or any other debtor relief law
(whether statutory,
common law, case law, or otherwise) of any jurisdiction whatsoever,
now or
hereafter in effect, which may be or become applicable, to stay,
interdict,
condition, reduce or inhibit the ability of the Agent to enforce
any rights of
the Agent against Guarantors by virtue of this Guaranty or
otherwise.
4.
Certain Rights
and Obligations.
(a) The Guarantors authorize the Agent and the Banks, without
notice,
demand or any reservation of rights against the Guarantors and
without affecting
the Guarantors' obligations hereunder, from time to time: (i) to
renew, extend,
increase, accelerate or otherwise change the time for payment of,
the terms of
or the interest on the Indebtedness or any part thereof or grant
other
indulgences to the Debtor or others, and to otherwise modify the
terms of the
Loan Agreement and the other Loan Documents; (ii) to accept from
any Person and
hold collateral for the payment of the Indebtedness or any part
thereof, and to
modify, exchange,
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enforce or refrain from enforcing, or release, compromise, settle,
waive,
subordinate or surrender, with or without consideration, such
collateral or any
part thereof; (iii) to accept and hold any endorsement or guaranty
of payment of
the Indebtedness or any part thereof, and to discharge, release or
substitute
any such obligation of any such endorser or guarantor, or any
Person who has
given any security interest in any collateral as security for the
payment of the
Indebtedness or any part thereof, or any other Person in any way
obligated to
pay the Indebtedness or any part thereof, and to enforce or refrain
from
enforcing, or compromise or modify, the terms of any obligation of
any such
endorser, guarantor, or Person; (iv) to dispose of any and all
collateral
securing the Indebtedness in any manner as the Agent or the Banks,
in their sole
discretion, may deem appropriate, and to direct the order or manner
of such
disposition and the enforcement of any and all endorsements and
guaranties
relating to the Indebtedness or any part thereof as the Agent or
the Banks in
their sole discretion may determine; (v) except as otherwise
provided in the
Loan Agreement, to determine the manner, amount and time of
application of
payments and credits, if any, to be made on all or any part of any
component or
components of the Indebtedness (whether principal, interest, fees,
costs, and
expenses, or otherwise); and (vi) to take advantage or refrain from
taking
advantage of any security or accept or make or refrain from
accepting or making
any compositions or arrangements when and in such manner as the
Agent or the
Banks, in their sole discretion, may deem appropriate and generally
do or
refrain from doing any act or thing which might otherwise, at law
or in equity,
release the liability of Guarantors as a guarantor or surety in
whole or in
part, and in no case shall the Agent or the Banks be responsible,
nor shall any
Guarantor be released, either in whole or in part for any act or
omission in
connection with the Agent or the Banks having sold any security at
an under
value.
(b) If any default shall be made in the payment of any of the
Indebtedness and any grace period has expired with respect thereto,
each
Guarantor jointly and severally hereby agrees to pay the same in
full to the
extent hereinafter provided: (i) without deduction by reason of any
setoff,
defense (other than payment) or counterclaim of the Debtor; (ii)
without
requiring presentment, protest or notice of nonpayment or notice of
default to
Guarantors, to the Debtor or to any other Person, except as
required pursuant to
the Loan Agreement; (iii) without demand for payment or proof of
such demand or
filing of claims with a court in the event of receivership,
bankruptcy or
reorganization of the Debtor; (iv) without requiring the Agent or
the Banks to
resort first to the Debtor (this being a guaranty of payment and
not of
collection) or to any other guaranty or any collateral which the
Banks may hold;
(v) without requiring notice of acceptance hereof or assent hereto
by the Agent
or the Banks; and (vi) without requiring notice that any of the
Indebtedness has
been incurred, extended or continued or of the reliance by the
Agent or the
Banks upon this Guaranty; all of which the Guarantors hereby
waive.
(c) The Guarantors' obligations hereunder shall not be affected by
any
of the following, all of which the Guarantors hereby waive: (i) any
failure to
perfect or continue the perfection of any security interest in or
other lien on
any collateral securing payment of any of the Indebtedness or the
Guarantors'
obligations hereunder; (ii) the invalidity, unenforceability,
propriety of
manner of enforcement of, or loss or change in priority of any such
security
interest or other lien or guaranty of the Indebtedness; (iii) any
failure to
protect, preserve or insure any such collateral; (iv) failure of
Guarantors to
receive notice of any intended disposition of such collateral; (v)
any defense
arising by reason of the cessation from any cause whatsoever of
liability of the
Debtor, including, without limitation, any failure, negligence or
omission by
the Agent or the Banks in enforcing their claims against the
Debtor; (vi) any
release, settlement or
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compromise of any obligation of the Debtor, other than as a result
of the
payment of the Indebtedness; (vii) the invalidity or
unenforceability of any of
the Indebtedness or other obliga
