Exhibit 10.62
COMPLETION
GUARANTY
COMPLETION GUARANTY, dated as of
November 30, 2006 (as amended, restated, replaced, supplemented or
otherwise modified from time to time, this “ Guaranty
”), by TROPHY HUNTER INVESTMENTS, LTD., a Florida limited
partnership (together with its successors and permitted assigns,
“ BH I Guarantor ”), having an address at c/o
Bay Harbour Management, L.C., 885 Third Avenue, New York, NY
10022 Attn: Douglas Teitelbaum; BAY HARBOUR 90-1, LTD., a
Florida limited partnership (together with its successors and
permitted assigns, “ BH II Guarantor ”), having
an address at c/o Bay Harbour Management, L.C., 885 Third Avenue,
New York, NY 10022 Attn: Douglas Teitelbaum and BAY HARBOUR
MASTER, LTD., a Cayman exempted company (together with its
successors and permitted assigns, “ BH III Guarantor
”), having an address at c/o Bay Harbour Management, L.C.,
885 Third Avenue, New York, NY 10022 Attn: Douglas Teitelbaum
and ROBERT EARL, an individual (together with his successors and
permitted assigns, “ RE Guarantor ”, and
together with BH Guarantor, BH II Guarantor and BH III Guarantor
individually or collectively as the context indicates, “
Guarantor ”), having an address at 9754 Chestnut Ridge
Drive, Windermere, Florida 34786, for the benefit of COLUMN
FINANCIAL, INC., a Delaware corporation having an address at 11
Madison Avenue, 9 th
Floor, New York, New York
10010 (together with its successors and assigns, “
Lender ”).
RECITALS :
WHEREAS, pursuant to that certain
Note, dated as of the date hereof (as the same may be amended,
restated, replaced supplemented or otherwise modified from time to
time, the “ Note ”), executed by PH Fee Owner
LLC, a Delaware limited liability company (together with its
successors and assigns, “ Fee Owner ”), and
OpBiz, L.L.C., a Nevada limited liability company (together with
its successors and assigns, “ OpBiz ” and,
together with Fee Owner, individually or collectively as the
context indicates, “ Borrower ”), and payable to
the order of Lender in the original principal amount of up to
$820,000,000 or so much thereof as is advanced, Borrower is
indebted, and may from time to time be further indebted, to Lender
with respect to a loan (the “ Loan ”) made
pursuant to that certain Loan Agreement, dated as of the date
hereof (as amended, restated, replaced, supplemented, or otherwise
modified from time to time, the “ Loan Agreement
”), between Borrower and Lender, which Loan is secured by,
inter alia , that certain Deed of Trust, Security Agreement,
Assignment of Leases and Rents, Financing Statement and Fixture
Filing, dated as of the date hereof, made by Borrower to First
American Title Insurance Company, a New York corporation, as
trustee, for the benefit of Lender, as beneficiary (as amended,
restated, replaced, supplemented, or otherwise modified from time
to time, collectively, the “ Security Instrument
”), and further evidenced, secured or governed by other
instruments and documents executed in connection with the Loan
(together with the Note, the Loan Agreement and the Security
Instrument, collectively, the “ Loan Documents
”).
WHEREAS, 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 hereinafter
defined).
WHEREAS, 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 and to extend such additional
credit as Lender may from time to time agree to extend under the
Loan Documents (as defined in the Loan Agreement), 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.
Definitions . Unless otherwise specifically provided,
capitalized terms used and not otherwise defined herein shall have
the meaning set forth in the Loan Agreement. For the purposes
hereof, the following terms shall have the respective meanings set
forth below:
“ Capital Stock ”
means, relative to any Person, any and all shares, interests,
participations or other equivalents (however designated, whether
voting or non-voting) of such Person’s capital, whether now
outstanding or issued after the Closing Date.
“ Cost Overruns ”
means collectively, all hard costs, soft costs and other
obligations, liabilities, amounts, costs and expenses arising or
incurred in connection with the completion of the Renovation
Project (whether or not set forth in the Project Budget) in excess
of the amount of any Line Items set forth in the Project Budget or
otherwise not specifically provided for in the Project Budget,
including, without limitation, interest that accrues on any cost
following the Substantial Completion of the Renovation
Project.
“ Enforcement Costs
” means all costs, expenses, liabilities, claims and amounts
required to be paid by Guarantor pursuant to Section 1.9 or
any other provision hereof.
“ Guaranteed
Obligations ” means, collectively, all obligations and
liabilities of Borrower under the Loan Agreement or any of the
other Loan Documents to:
(a)
cause Final Completion of the Renovation Project to occur in a
timely manner, in accordance with the provisions of the Loan
Agreement;
(b)
pay all Project Costs with respect to the Renovation Project,
including (without limitation) any and all obligations,
liabilities, costs and expenses incurred in connection with the
completion of the Renovation Project;
(c)
keep the Renovation Project and the Property free and clear of all
liens or claims of liens arising or incurred in connection with the
completion of the Renovation Project, other than Permitted
Encumbrances;
(d)
correct or cause
to be corrected any defect in the Renovation Project Improvements
or any material departure from the Plans and Specifications in
accordance with Section 3.3.5 of the Loan Agreement;
and
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(e)
pay any and all Enforcement Costs.
“ Net Worth ”
shall mean, with respect to Guarantor for any period, assets less
liabilities of Guarantor and its Subsidiaries determined on a
consolidated basis in accordance with accounting principles
reasonably acceptable to Lender and consistent with the accounting
principles used to generate the financial information delivered to
Lender in connection with its underwriting of the Loan,
consistently applied.
“ Required Net Worth
” shall have the meaning ascribed thereto in Section
4.10 hereof.
“ Subsidiaries ”
means, relative to any Person, any corporation, partnership or
other business entity of which more than 50% of the outstanding
Capital Stock having ordinary voting power to elect the board of
directors, managers or other voting members of the governing body
of such Person (irrespective of whether at the time Capital Stock
(or other ownership interest) of any other class or classes of such
Person shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such
Person, by such Person and one or more other Subsidiaries of such
Person, or by one or more other Subsidiaries of such
Person.
1.2.
Guaranteed Obligations . Subject to Section
1.2(b) , Guarantor hereby irrevocably, absolutely and
unconditionally guarantees to Lender (including, without limitation
its respective successors and assigns) the payment and performance
of the Guaranteed Obligations as and when the same shall be due and
payable or otherwise. Guarantor hereby irrevocably and
unconditionally covenants and agrees that it is liable for the
Guaranteed Obligations as a primary obligor and not merely as a
surety.
(b)
Notwithstanding anything
contained herein to the contrary, the maximum aggregate liability
of Guarantor hereunder (excluding Enforcement Costs with respect to
which there shall be no limit hereunder), shall not exceed the
greater of (i) thirty-five million dollars ($35,000,000), and (b)
in the event that Cost Overruns exceed at any time fifteen million
dollars ($15,000,000) in the aggregate, an amount equal to
twenty-four percent (24%) of the aggregate amount of all paid or
unpaid Project Costs as set forth in the Project Budget for the
Renovation Project as approved by Lender from time to time in
accordance with the terms of the Loan Agreement.
(c)
Notwithstanding anything to the contrary, if at any time Guarantors
are comprised of more than one Person, the obligations and
liabilities of each such Person under this Guaranty shall be joint
and several.
1.3.
Nature of Guaranty . This Guaranty is an irrevocable,
unconditional, absolute, continuing guaranty of payment and
performance and 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 the
Guaranteed
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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 (other than payment in full) 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.
Lender’s Right to Perform . In the event that
Guarantor shall fail or refuse to observe, perform and satisfy all
of Borrower’s obligations, duties, covenants and agreements
under the Loan Agreement, the other Loan Documents and the Project
Documents with respect to Final Completion of the Renovation
Project (or fail or refuse to cause Borrower to so observe, perform
and satisfy) or shall otherwise fail or refuse to pay or perform
any of the Guaranteed Obligations, in each case fully, completely
and punctually, Lender may, from and after the occurrence of an
Event of Default and during the continued existence thereof at its
option, observe, perform and/or satisfy any of such obligations,
duties, covenants and agreements (or cause any of such obligations
to be so observed, performed and/or satisfied) or otherwise pay or
perform or cause the payment and performance of any of the
Guaranteed Obligations and in connection therewith, take possession
of the Project and cause Final Completion of the Renovation
Project, in which case Guarantor, upon demand by Lender, shall (x)
pay any and all costs, expenses, liabilities and claims with
respect thereto, (y) cause any claim or Lien in connection
therewith to be bonded, discharged, released or paid and (z)
reimburse Lender in lawful money of the United States for all sums
paid and all costs, expenses or liabilities incurred by Lender in
connection therewith (which payments shall be included within the
meaning of Guaranteed Obligations hereunder).
1.6.
Payment by Guarantor . If all or any part of the
Guaranteed Obligations shall not be punctually paid and performed
when due, Guarantor shall, immediately upon demand by Lender and
without presentment, protest, notice of protest, notice of
non-payment or any other notice whatsoever, pay in lawful money of
the United States of America the amount due on the Guaranteed
Obligations (including, without limitation, any amounts due
pursuant to Section 1.5 hereof) to Lender at Lender’s
address as set forth herein. Such demand(s) may be made at
any time coincident after the time for payment and performance 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 made, given and received in
accordance with the notice provisions hereof. If the amount
due on the Guaranteed Obligations (including, without limitation,
any amounts due pursuant to Section 1.5 hereof) is not paid
to Lender within ten (10) Business Days after demand by Lender, the
same shall bear interest at the Default Rate from the date of
demand until the date all of the Guaranteed Obligations (including,
without limitation, any amounts due pursuant to Section 1.5
hereof) have been paid (which interest shall be included within the
meaning of Guaranteed Obligations).
1.7.
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 the
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obligations of Guarantor hereunder,
first to (i) institute suit or exhaust its remedies
against