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
2
(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
3
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
4
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
5
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
6
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