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COMPLETION GUARANTY

Completion Guarantee

COMPLETION GUARANTY | Document Parties: BH RE LLC | BAY HARBOUR 90-1, LTD | ROBERT EARL |  COLUMN FINANCIAL, INC You are currently viewing:
This Completion Guarantee involves

BH RE LLC | BAY HARBOUR 90-1, LTD | ROBERT EARL | COLUMN FINANCIAL, INC

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Title: COMPLETION GUARANTY
Governing Law: New York     Date: 4/2/2007
Law Firm: Fried, Frank, Harris, Shriver & Jacobson LLP;Proskauer Rose LLP    

COMPLETION GUARANTY, Parties: bh re llc , bay harbour 90-1  ltd , robert earl ,  column financial  inc
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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 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.

1.8.          Waivers .  Guarantor agrees to the provisions of this Guaranty 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, the Mortgage and any other security instrument, the Loan Agreement 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 an 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, and (ix)  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.

1.9.          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.  If the amount due is not paid to Lender as aforesaid within ten (10) Business Days after written demand by Lender, the same shall bear interest at the Default Rate from the date of demand until the date such amounts due hereunder have been paid in full (which interest shall be included within the meaning of Guaranteed Obligations).

1.10.        Effect of Bankruptcy .  In the event that pursuant to any insolvency, bankruptcy, reorganization, receivership or other 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 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.

1.11.        Waiver of Subrogation, Reimbursement and Contribution . Notwithstanding anything to the contrary contained in this Guaranty, until the Loan is paid in full, Guarantor hereby unconditionally and irrevocably waives, releases and abrogates any and all rights it may now or hereafter have under any agreement, at law or in equity (including, without limitation, any law subrogating Guarantor to the rights of Lender), to assert any claim against or seek

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contribution, indemnification or any other form of reimbursement from Borrower or any other party liable for payment of any or all of the Guaranteed Obligations for any payment made by Guarantor under or in connection with this Guaranty.  Nothing herein prohibits payment of the Guarantee Fee as and when Borrower is permitted to do so under the Loan Agreement and the Guarantee Fee Agreement.

ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS

Guarantor hereby consents and agrees to each of the following and agrees that Guarantor’s obligations under this Guaranty shall not be released, diminished, impaired, reduced or adversely affected by any of the following and waives any common law, equitable, statutory or other rights (including without limitation rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following:

2.1.          Modifications .  Any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the Guaranteed Obligations, the Note, the Mortgage and any other security instruments, the Loan Agreement, the other Loan Documents or any other document, instrument, contract or understanding between Borrower and Lender pertaining to the Guaranteed Obligations or any failure of Lender to notify Guarantor of any such action.

2.2.          Adjustment .  Any adjustment, indulgence, forbearance or compromise that might be granted or given by Lender to Borrower or Guarantor or any other party liable for payment of any or all of the Guaranteed Obligations.

2.3.          Condition of Borrower or Guarantor . The insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, Guarantor; or any dissolution of Borrower or Guarantor or any sale, lease or transfer of any or all of the assets of Borrower or Guarantor or any changes in the direct or indirect shareholders, partners or members of Borrower or Guarantor or any other party liable for payment of any or all of the Guaranteed Obligations; or any reorganization of Borrower or Guarantor.

2.4.          Invalidity of Guaranteed Obligations .  The invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations or any document or agreement executed in connection with the Guaranteed Obligations for any reason whatsoever, including without limitation the fact that (i) the Guaranteed Obligations or any part thereof exceeds the amount permitted by law, (ii) the act of creating the Guaranteed Obligations or any part thereof is ultra vires , (iii) the officers or representatives executing the Note, the Mortgage and any other security instruments, the Loan Agreement or the other Loan Documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (iv) the Guaranteed Obligations violate applicable usury laws, (v) the Borrower has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from Borrower, (vi) the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed

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Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible or unenforceable, or (vii) the Note, the Mortgage and any other security instruments, the Loan Agreement or any of the other Loan Documents have been forged or otherwise are irregular or not genuine or authentic, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other Person be found not liable on the Guaranteed Obligations or any part thereof for any reason.

2.5.          Release of Obligors .  Any full or partial release of the liability of Borrower on the Guaranteed Obligations or any part thereof, or of any co-guarantors, or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any part thereof, it being recognized, acknowledged and agreed by Guarantor that Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other party, and Guarantor has not been induced to enter


 
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