Exhibit
10.16
GUARANTY AGREEMENT
------------------
Dated as of December 28, 2005
THIS
GUARANTY AGREEMENT
("this Guaranty") is made by TIERRA DEL SOL RESORT
(PHASE 1),
LTD., a Florida limited partnership, with
an address at 2462 Sand
Lake Road,
Orlando, Florida 32809 ("Guarantor"), in
favor of PCL CONSTRUCTION
ENTERPRISES, INC., a Colorado corporation (the "Lender").
RECITALS
--------
A.
The Lender has agreed to make a loan in the principal amount of
$4,000,000.00 (the
"Loan") to TDS Development, LLC, a Florida limited liability
company (the
"Borrower"),
pursuant to, and as evidenced by a
Promissory Note
from Borrower
in favor of Lender, dated of even
date herewith in the original
principal amount
of $4,000,000.00
(together with any renewals or modifications
thereof and substitutions therefore, the "Note").
B.
The obligations of the Borrower under the Note are
secured by, among
other things, a Pledge and Security Agreement dated of even date
herewith by and
between the Guarantor
and the Lender (as amended or restated from time to time,
together with any
renewals or modifications thereof or substitutions therefore,
the "Security
Agreement").
The Note and the
Security Agreement, together with
all the documents,
instruments and agreements evidencing, securing or otherwise
relating to the Loan, as such other documents, instruments and
agreements may be
amended, modified,
restated, renewed or substituted for from
time to time are
referred to herein and collectively as the "Loan Documents").
C.
The Guarantor is part of an operating
group of companies that includes
the Borrower and the Guarantor's business interests are closely
intertwined with
those of Borrower. Accordingly, the Guarantor will
benefit substantially from
the Lender's credit extension to the Borrower.
D.
The Lender's agreement to make the Loan to the
Borrower is contingent
upon the Guarantor's execution and delivery of this Guaranty.
AGREEMENTS
----------
NOW,
THEREFORE,
in consideration of the premises and other good and
valuable consideration
(the receipt and adequacy of which are hereby
acknowledged) and in
order to induce the Lender to make the Loan, the Guarantor
agrees as follows:
Section 1.
Guaranty. The Guarantor hereby irrevocably, absolutely and
--------
unconditionally guarantees to Lender: (i) the punctual payment when
due, whether
at stated maturity, by acceleration or otherwise, of all obligations
of the
Borrower to
the Lender now or
hereafter existing or arising under or evidenced
by the Note and all other Loan Documents, whether for principal,
interest, fees,
commissions,
indemnities, expenses or otherwise, all at the times and place
and
at the rate described in the Note and other Loan Documents, and
otherwise
according to
the terms of the Note and the other Loan
Documents and (ii) the
prompt, punctual and
faithful performance when due, whether by reason of stated
<PAGE>
maturity, acceleration
or otherwise, of all other
obligations of the Borrower
and any other party to Lender now or hereafter outstanding under
the Note or the
other Loan
Documents (such obligations and liabilities referred to in
this
Section 1 being "the
Obligations" or "Obligations"). In addition, the Guarantor
agrees to pay any and all expenses (including counsel fees
and expenses at
whatever level)
incurred by the Lender in enforcing any rights under
this
Guaranty.
Section 2. Guaranty Absolute. The Guarantor guarantees that the
Obligations
-----------------
will be paid and performed strictly in accordance with the terms of
the Note and
other Loan Documents regardless of any law, regulation or order now
or hereafter
in effect in any jurisdiction affecting any
of such terms or the rights of the
Lender with respect
thereto. The liability of the Guarantor under this Guaranty
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability
of any payment provisions
of
the Note and any of the other Loan Documents;
(b) any change in the time, manner or
place of payment of, or in any
other term
of, all or any of the Obligations, or any
other amendment or
waiver of or any consent to departure from any of the Loan
Documents;
(c) any exchange, release or nonperfection
of any collateral for any
of
the Obligations, any limitation as to the amount of the
Obligations
secured by any of the Loan Documents, any invalidity of, release,
amendment
or
waiver of or consent to departure from, any
other guaranty for all or
any
of the Obligations or any failure to
obtain any guaranty contemplated
by
the Loan Documents or any related commitment letter;
(d)
the voluntary or involuntary bankruptcy of Borrower, or any
assignment for
the benefit of creditors, reorganization,
receivership,
liquidation or
other similar
proceedings affecting the Borrower or any of
its
assets;
(e) any present or future action of any governmental authority
amending, varying, reducing or otherwise affecting, or purporting
to amend,
vary, reduce
or otherwise affect,
any of the Obligations, any of the Loan
Documents or this Guaranty;
(f) any other event or circumstance which might otherwise
constitute a
defense available to, or a discharge of, the Borrower or a
guarantor.
Nothing herein to the
contrary withstanding, this Guaranty shall continue to be
effective or
be reinstated, as the case may be, if
at any time any payment of
any of the Obligations
is rescinded or must otherwise be returned by the Lender
upon the insolvency, bankruptcy or reorganization of the Borrower
otherwise, all
as though such payments had not been made.
Section 3. Waiver. The Guarantor hereby unconditionally waives:
------
<PAGE>
(a) promptness,
diligence, notice of acceptance and all other notices
with
respect to any of the Obligations, this Guaranty or any disposition
of
collateral;
(b) any requirement that the Lender protect, secure, perfect or
insure
any
security inte
