Guaranty
Exhibit 10.7
As
of December 20, 2013, the undersigned, for value received, unconditionally and absolutely guarantee(s) to Comerica Bank ("Bank"),
payment when due, whether by stated maturity, demand, acceleration or otherwise, of all existing and future indebtedness ("Indebtedness")
to the Bank of Greektown Holdings, L.L.C. (successor by reason of merger to Greektown Superholdings, Inc.) ("Borrower")
arising under that certain Credit Agreement dated as of June 30, 2010 between the Borrower and the Bank ("Credit Agreement")
and the other Loan Documents as defined therein (as amended, modified, renewed or replaced from time to time, the "Loan Documents"),
and the "Indebtedness" as defined in the Credit Agreement. Indebtedness includes any and all obligations or liabilities
of the Borrower to the Bank arising under the Loan Documents; the "Indebtedness" as defined in the Credit Agreement;
any and all indebtedness, obligations or liabilities for which Borrower would otherwise be liable to the Bank were it not for
the invalidity, irregularity or unenforceability of them by reason of any bankruptcy, insolvency or other law or order of any
kind, or for any other reason; any and all amendments, modifications, renewals and/or extensions of any of the above; and all
costs of collecting Indebtedness, including, without limit, attorney fees. Any reference in this Guaranty to attorney fees shall
be deemed a reference to reasonable fees, charges, costs and expenses of both in-house and outside counsel and paralegals, whether
or not a suit or action is instituted, and to court costs if a suit or action is instituted, and whether attorney fees or court
costs are incurred at the trial court level, on appeal, in a bankruptcy, administrative or probate proceeding or otherwise. All
costs shall be payable immediately by the undersigned when incurred by the Bank, without demand, and until paid shall bear interest
at the highest per annum rate applicable to any of the Indebtedness, but not in excess of the maximum rate permitted by law. Notwithstanding
anything to the contrary in this Guaranty, the term `Indebtedness' shall not include any obligation of Borrower to Bank with respect
to a 'swap,' as defined in Section 1(a)(47) of the Commodity Exchange Act (`CEA'), entered into on or after October 12, 2012,
if at the time that swap is entered into, the undersigned is not an 'eligible contract participant,' as defined in Section 1(a)(18)
of the CEA.
| 1. | LIMITATION: The total obligation of the undersigned under this Guaranty
is UNLIMITED unless specifically limited in the Additional Provisions of this Guaranty, and this obligation (whether unlimited
or limited to the extent specified in the Additional Provisions) shall include, IN ADDITION TO any limited amount of principal
guaranteed, all interest on that limited amount, and all costs incurred by the Bank in collection efforts against the Borrower
and/or the undersigned or otherwise incurred by the Bank in any way relating to the Indebtedness, or this Guaranty, including without
limit attorney fees. The undersigned agree(s) that (a) this limitation shall not be a limitation on the amount of Borrower's Indebtedness
to the Bank; (b) any payments by the undersigned shall not reduce the maximum liability of the undersigned under this Guaranty
unless written notice to that effect is actually received by the Bank at, or prior to, the time of the payment; and (c) the liability
of the undersigned to the Bank shall at all times be deemed to be the aggregate liability of the undersigned under this Guaranty
and any other guaranties previously or subsequently given to the Bank by the undersigned and not expressly revoked, modified or
invalidated in writing. |
| 2. | NATURE OF GUARANTY: This is a continuing Guaranty of payment and not of
collection and remains effective whether the Indebtedness is from time to time reduced and later increased or entirely extinguished
and later reincurred. The undersigned deliver(s) this Guaranty based solely on the undersigned's independent investigation of (or
decision not to investigate) the financial condition of Borrower and is (are) not relying on any information furnished by the Bank.
The undersigned assume(s) full responsibility for obtaining any further information concerning the Borrower's financial condition,
the status of the Indebtedness or any other matter which the undersigned may deem necessary or appropriate now or later. The undersigned
knowingly accept(s) the full range of risk encompassed in this Guaranty, which risk includes, without limit, the possibility that
Borrower may incur Indebtedness to the Bank after the financial condition of the Borrower, or the Borrower's ability to pay debts
as they mature, has deteriorated. |
| 3. | APPLICATION OF PAYMENTS: The undersigned authorize(s) the Bank, either before
or after termination of this Guaranty, without notice to or demand on the undersigned and without affecting the undersigned's liability
under this Guaranty, from time to time to: (a) apply any security and direct the order or manner of sale; and (b) apply payments
received by the Bank from the Borrower to any Indebtedness in accordance with the Loan Documents. |
| 4. | SECURITY: The undersigned grant(s) to the Bank a security interest in and
the right of setoff as to any and all property of the undersigned now or later in the possession of the Bank. The undersigned further
assign(s) to the Bank as collateral for the obligations of the undersigned under this Guaranty all claims of any nature that the
undersigned now or later has (have) against the Borrower (other than any claim under a deed of trust or mortgage covering California
real property) with full right on the part of the Bank, in its own name or in the name of the |
undersigned, to collect
and enforce these claims. The undersigned agree(s) that no security now or later held by the Bank for the payment of any Indebtedness,
whether from the Borrower, any guarantor, or otherwise, and whether in the nature of a security interest, pledge, lien, assignment,
setoff, suretyship, guaranty, indemnity, insurance or otherwise, shall affect in any manner the unconditional obligation of the
undersigned under this Guaranty, and the Bank, in its sole discretion, without notice to the undersigned, may release, exchange,
enforce and otherwise deal with any security without affecting in any manner the unconditional obligation of the undersigned under
this Guaranty. The undersigned acknowledge(s) and agree(s) that the Bank has no obligation to acquire or perfect any lien on or
security interest in any asset(s), whether realty or personalty, to secure payment of the Indebtedness, and the undersigned is
(are) not relying upon any asset(s) in which the Bank has or may have a lien or security interest for payment of the Indebtedness.
| 5. | OTHER GUARANTORS: If any Indebtedness is guaranteed by two or more guarantors,
the obligation of the undersigned shall be several and also joint, each with all and also each with any one or more of the others,
and may be enforced at the option of the Bank against each severally, any two or more jointly, or some severally and some jointly.
The Bank, in its sole discretion, may release any one or more of the guarantors for any consideration which it deems adequate,
and may fail or elect not to prove a claim against the estate of any bankrupt, insolvent, incompetent or deceased guarantor; and
after that, without notice to any guarantor, the Bank may extend or renew any or all Indebtedness and may permit the Borrower to
incur additional Indebtedness, without affecting in any manner the unconditional obligation of the remaining guarantor(s). The
undersigned acknowledge(s) that the effectiveness of this Guaranty is not conditioned on any or all of the Indebtedness being guaranteed
by anyone else. |
| 6. | TERMINATION: Upon the repayment in full of the Indebtedness and termination
of the Credit Agreement (other than those provisions expressly stated to survive such termination), the obligations of the guarantors
hereunder shall terminate (subject to the provisions of Section 7 hereof), all without delivery of any instrument or performance
of any act by any party. Furthermore, any of the undersigned may terminate their obligation under this Guaranty as to future Indebtedness
(except as provided below) by (and only by) delivering written notice of termination to an officer of the Bank and receiving from
an officer of the Bank written acknowledgment of delivery; provided, however, the termination shall not be effective until the
opening of business on the fifth (5th) day ("effective date") following written acknowledgment of delivery. Any termination
shall not affect in any way the unconditional obligations of the remaining guarantor(s), whether or not the termination is known
to the remaining guarantor(s). Any termination shall not affect in any way the unconditional obligations of the terminating guarantor(s)
as to any Indebtedness existing at the effective date of termination or any Indebtedness created after that pursuant to any commitment
or agreement of the Bank or pursuant to any Borrower loan with the Bank existing at the effective date of termination (whether
advances or readvances by the Bank after the effective date of termination are optional or obligatory), or any modifications, extensions
or renewals of any of this Indebtedness, whether in whole or in part, and as to all of this Indebtedness and modifications, extensions
or renewals of it, this Guaranty shall continue effective until the same shall have been fully paid. The Bank has no duty to give
notice of termination by any guarantor(s) to any remaining guarantor(s). The undersigned shall indemnify the Bank against all claims,
damages, costs and expenses, including, without limit, attorney fees, incurred by the Bank in connection with any suit, claim or
action against the Bank arising out of any modification or termination of a Borrower loan or any refusal by the Bank to extend
additional credit in connection with the termination of this Guaranty. |
| 7. | REINSTATEMENT: Notwithstanding any prior revocation, termination, surrender
or discharge of this Guaranty (or of any lien, pledge or security interest securing this Guaranty) in whole or in part, the effectiveness
of this Guaranty, and of all liens, pledges and security interests securing this Guaranty, shall automatically continue or be reinstated
in the event that any payment received or credit given by the Bank in respect of the Indebtedness is returned, disgorged or rescinded
under any applicable state or federal law, including, without limitation, laws pertaining to bankruptcy or insolvency, in which
case this Guaranty, and all liens, pledges and security interests securing this Guaranty, shall be enforceable against the undersigned
as if the returned, disgorged or rescinded payment or credit had not been received or given by the Bank, and whether or not the
Bank relied upon this payment or credit or changed its position as a consequence of it. In the event of continuation or reinstatement
of this Guaranty and the liens, pledges and security interests securing it, the undersigned agree(s) upon demand by the Bank, to
execute and deliver to the Bank those documents which the Bank determines are appropriate to further evidence (in the public records
or otherwise) this continuation or reinstatement, although the failure of the undersigned to do so shall not affect in any way
the reinstatement or continuation. If the undersigned do(es) not execute and deliver to the Bank upon demand such documents, the
Bank and each Bank officer is irrevocably |
appointed (which appointment
is coupled with an interest) the true and lawful attorney of the undersigned (with full power of substitution) to execute and deliver
such documents in the name and on behalf of the undersigned.
| 8. | WAIVERS: The undersigned , to the extent not expressly prohibited
by applicable law, waive(s) any right to require the Bank to: (a) proceed against any person or property; (b) give notice of the
terms, time and place of any public or private sale of personal property security held from the Borrower or any other person, or
otherwise comply with the provisions of Sections 9-611 or 9-621 of the Michigan or other applicable Uniform Commercial Code, as
the same may be amended, revised or replaced from time to time; or (c) pursue any other remedy in the Bank's power. The undersigned
waive(s) notice of acceptance of this Guaranty and presentment, demand, protest, notice of protest, dishonor, notice of dishonor,
notice of default, notice of intent to accelerate or demand payment of any Indebtedness, any and all other notices to which the
undersigned might otherwise be entitled, and diligence in collecting any Indebtedness, and agree(s) that the Bank may, once or
any number of times, modify the terms of any Indebtedness, compromise, extend, increase, accelerate, renew or forbear to enforce
payment of any or all Indebtedness, or permit the Borrower to incur additional Indebtedness, all without notice to the undersigned
and without affecting in any manner the unconditional obligation of the undersigned under this Guaranty. |
The undersigned unconditionally
and irrevocably waive(s) each and every defense and setoff of any nature which, under principles of guaranty or otherwise, would
operate to impair or diminish in any way the obligation of the undersigned under this Guaranty, and acknowledge(s) that each such
waiver is by this reference incorporated into each security agreement, collateral assignment, pledge and/or other document from
the undersigned now or later securing this Guaranty and/or the Indebtedness, and acknowledge(s) that as of the date of this Guaranty
no such defense or setoff exists.
| 9. | WAIVER OF SUBROGATION: The undersigned waive(s) any and all rights
(whether by subrogation, indemnity, reimbursement, or otherwise) to recover from the Borrower any amounts paid by the undersigned
pursuant to this Guaranty. |
| 10. | SALE/ASSIGNMENT: The undersigned acknowledge(s) that the Bank has
the right to sell, assign, transfer, negotiate, or grant participations in all or any part of the Indebtedness and any related
obligations, including, without limit, this Guaranty, without notice to the undersigned and that the Bank may disclose any documents
and information which the Bank now has or later acquires relating to the undersigned or to the Borrower in connection with such
sale, assignment, transfer, negotiation, or grant. The undersigned agree(s) that the Bank may provide information relating to this
Guaranty or relating to the undersigned to the Bank's parent, affiliates, subsidiaries and service providers. |
| 11. | GENERAL: This Guaranty and the Pledge and Security Agreement between
the undersigned and the Bank constitute the entire agreement of the undersigned and the Bank with respect to the subject matter
of this Guaranty. No waiver, consent, modification or change of the terms of the Guaranty shall bind any of the undersigned or
the Bank unless in writing and signed by the waiving party or an authorized officer of the waiving party, and then this waiver,
consent, modification or change shall be effective only in the specific instance and for the specific purpose given. This Guaranty
shall inure to the benefit of the Bank and its successors and assigns and shall be binding on the undersigned and the undersigned's
heirs, legal representatives, successors and assigns including, without limit, any debtor in possession or trustee in bankruptcy
for any of the undersigned. The undersigned has (have) knowingly and voluntarily entered into this Guaranty in good faith for the
purpose of inducing the Bank to extend credit or make other financial accommodations to the Borrower. If any provision of this
Guaranty is unenforceable in whole or in part for any reason, the remaining provisions shall continue to be effective. THIS GUARANTY
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF MICHIGAN, WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES. |
| 12. | HEADINGS: Headings in this Agreement are included for the convenience
of reference only and shall not constitute a part of this Agreement for any purpose. |
| 13. | ADDITIONAL PROVISIONS: N/A |
| 14. | JURY TRIAL WAIVER: THE UNDERSIGNED AND BANK ACKNOWLEDGE THAT THE RIGHT
TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY
TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY |
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VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT
OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, IN ANY WAY RELATED TO , THIS
GUARANTY OR THE INDEBTEDNESS. |
IN WITNESS
WHEREOF, Guarantor(s) has (have) signed and delivered this Guaranty the day and year first written above.
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GUARANTORS: |
| WITNESSES
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/s/
XXXXXXX XXXXXXX |
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By: |
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XXXX XXXXXXXX |
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SIGNATURE
OF Xxxxxxx Xxxxxxx |
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SIGNATURE
OF Xxxx Xxxxxxxx |
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Its: |
President |
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SIGNATURE
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CONTRACT
BUILDERS CORPORATION |
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By: |
/s/
XXXX XXXXXXXX |
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SIGNATURE
OF Xxxx Xxxxxxxx |
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Its: |
President |
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REALTY
EQUITY COMPANY, INC. |
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By: |
/s/
XXXX XXXXXXXX |
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SIGNATURE
OF Xxxx Xxxxxxxx |
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Its: |
President |
