EXHIBIT 10.5
LIMITED RECOURSE
GUARANTY
THIS LIMITED RECOURSE GUARANTY (this “ Guaranty
”), made as of December 20, 2007, by CYPRESS EQUITIES I,
LP, a Texas limited partnership, having an address at 15601 Dallas
Parkway, Suite 400, Addison, Texas 75001, Attention:
Rick Bower (“ Guarantor ”) in favor of BEHRINGER
HARVARD RI LENDER, LLC, a Delaware limited liability company
(“ Behringer ”).
WITNESSETH:
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WHEREAS, Royal Island Bahamas Ltd., a Bahamian
company (“ RIBL ”), Royal Island Golf Club
Bahamas Ltd., a
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Bahamian company, and RIBL US Borrower LLC, a
Delaware limited liability company (collectively, “
Borrower ”) have entered into that certain Credit
Agreement, dated as of December 20, 2007 (as amended, amended
and restated, extended, supplemented or otherwise modified from
time to time, the “ Credit Agreement ”), by and
among, Borrower, the Lenders from time to time party thereto, and
iStar Financial Inc., a Maryland corporation, as agent for the
Lenders from time to time party thereto. Except as otherwise
defined herein, capitalized terms used but not defined herein have
the meanings given such terms in the Credit Agreement;
WHEREAS, the Loans are secured by, among other
things, the RIBL’s interest in the Real Property Collateral
as evidenced by that certain Debenture dated of even date herewith,
executed in connection with the Credit Agreement (the “
Mortgage ”);
WHEREAS, Guarantor will derive significant
financial benefits from the making of the Loan;
WHEREAS, as a condition precedent to the making
of the Loans, Guarantor has agreed to deliver to Behringer this
Guaranty; and
WHEREAS, Behringer has declined to be one of
the Lenders unless this Guaranty is duly executed by Guarantor and
delivered to Behringer.
NOW, THEREFORE, in consideration for, and as an
inducement to, Behringer being one of the Lenders, and for Ten
Dollars ($10) and other good and valuable consideration the legal
sufficiency of which and receipt thereof are hereby acknowledged,
and notwithstanding any provision to the contrary contained in the
Loan Documents, including without limitation, any
“non-recourse” provision, Behringer and Guarantor do
hereby agree as follows:
1.
Guarantor, on behalf of itself and its successors and assigns
(collectively, “ Successors ”) does hereby
absolutely, unconditionally, irrevocably and
personally:
(i) guaranty to Behringer
the full and punctual payment of the “Guaranteed
Amount” (as hereinafter defined) to Lender by Guarantor upon
the maturity of the Loan or upon any earlier acceleration of the
Loan. For purposes herein, “ Guaranteed Amount
” shall mean, collectively, (a) fifty percent (50.0%) of
the principal amount funded under
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Tranche B, less any principal
payments made on Tranche B, together with (b) all accrued and
unpaid interest on Tranche B, together with (c) the sum of all
Development Fees (as defined in the Services Agreement) previously
paid to Guarantor under that certain Development Services
Agreement, between RIBL and Guarantor, dated May 2, 2007 (the
“ Services Agreement ”); and
(ii) agrees to reimburse
Behringer for, and hold Behringer harmless from and against, any
and all costs and expenses (including reasonable attorneys’
fees) incurred, suffered or sustained by Behringer and/or its
successors and assigns to enforce this Guaranty not later than ten
(10) days following Guarantor’s receipt of a Payment
Demand (defined below) (the obligations of Guarantor under clause
(i) and this clause (ii) being referred to hereinafter,
collectively, as “ Guarantor’s Obligation
”).
Any
demand for payment under this Guaranty (a “ Payment
Demand ”) shall be in writing, shall specify the amount
of the Guarantor’s Obligation as of the date of the Payment
Demand, and shall provide in reasonable detail the calculation of
the amount of the Guarantor’s Obligation. Upon payment
in full of the Guarantor’s Obligation within ten
(10) days following Guarantor’s receipt of the Payment
Demand, Guarantor shall have no further liability under this
Guaranty.
2.
This is an irrevocable, absolute, continuing guaranty of payment
and performance. It is agreed that the obligations of
Guarantor hereunder shall be primary and this Guaranty shall be
enforceable against Guarantor and its Successors without the
necessity for any suit or proceeding of any kind or nature
whatsoever brought by Behringer against Borrower or its successors
or assigns or any other party under the Credit Agreement or against
any security for the payment of Guarantor’s Obligation and
without the necessity of any notice of non-payment or
non-observance or of any notice of acceptance of this Guaranty or
of any notice of demand to which Guarantor might otherwise be
entitled hereunder (including, without limitation, diligence,
presentment, notice of maturity, extension of time, protest, notice
of dishonor or default, change in nature or form of
Guarantor’s Obligation, acceptance of further security,
release of further security, imposition or agreement arrived at as
to the amount of or the terms of Guarantor’s Obligation), all
of which Guarantor hereby expressly waives. Guarantor hereby
expressly agrees that the validity of this Guaranty and the
obligations of Guarantor hereunder shall in no way be terminated,
affected, diminished, modified or impaired by reason of the
assertion of or the failure to assert by Behringer, Agent or Lender
against Borrower, or its successors or assigns, any of the rights
or remedies reserved to Behringer, Agent or Lender pursuant to the
provisions of the Credit Agreement, the Tranche B Note, the
Mortgage or any other Loan Documents.
3.
Guarantor waives, and covenants and agrees that it will not at any
time insist upon, plead or in any manner whatsoever claim or take
the benefit or advantage of, any and all appraisal, valuation,
stay, extension, marshaling-of-assets or redemption laws, or right
of homestead or exemption, whether now or at any time hereafter in
force, that may delay, prevent or otherwise affect the performance
by Guarantor of its obligations under, or the enforcement by
Behringer of, this Guaranty. Guarantor further covenants and
agrees not to set up or claim any defense, counterclaim,
cross-claim, offset, set-off, right of recoupment, or other
objection of any kind to any action, suit or proceeding in law,
equity or otherwise, or to any demand or claim that
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may be instituted or made by
Behringer hereunder other than the defense of the actual timely
performance of Guarantor’s Obligations hereunder.
Guarantor represents, warrants and agrees that, as of the date
hereof, its obligations under this Guaranty are not subject to any
counterclaims, cross-claims, rights of recoupment, offsets or
affirmative or other defenses of any kind against
Behringer.
4.
Guarantor agrees that any notice or directive given at any time by
Guarantor to Behringer that is inconsistent with any waiver
contained in this Guaranty shall be void and may be ignored by
Behringer, and, in addition, may not be pleaded or introduced as
evidence in any litigation relating to this Guaranty for the reason
that such pleading or introduction would be at variance with the
written terms of this Guaranty, unless Behringer has specifically
agreed otherwise in a writing, signed by a duly authorized
officer. Guarantor specifically acknowledges and agrees that
the foregoing waivers are of the essence of the Loan transaction
and that, but for this Guaranty and such waivers, Behringer would
not make the Loan.
5.
This Guaranty shall be a continuing guaranty for so long as the
Obligations remain outstanding and except for modifications,
waivers and releases of liabilities of Guarantor hereunder
expressly granted in a written instrument which is in accordance
with Section 22 hereof, the liability of Guarantor hereunder
shall in no way be terminated, affected, modified, impaired or
diminished (to the extent permitted by law) by reason of the
happening, from time to time, of any of the following, although
without notice or the further consent of Guarantor:
(a)
any assignment, amendment, modification or waiver of or change in
any of the terms, covenants, conditions or provisions of the Credit
Agreement, the Note, the Mortgage or any of the other Loan
Documents or the invalidity or unenforceability of any of the
foregoing; or
(b)
any extension of time that may be granted by Behringer, Guarantor
or the Successors; or
(c)
any action that Behringer, Agent, Lenders, or Guarantor may take or
fail to take under or in respect of any of the Loan Documents or by
reason of any waiver of, or failure to enforce any of the rights,
remedies, powers or privileges available to Behringer under this
Guaranty or available to Behringer, Agent or Lenders at law, equity
or otherwise, or any action on the part of Behringer, Agent or
Lenders granting indulgence or extension in any form whatsoever;
or
(d)
any dealing, transaction, matter or thing occurring between
Behringer, Agent, Lenders, Guarantor or the Successors;
or
(e)
any sale, exchange, release, or other disposition of any property
pledged, mortgaged or conveyed, or any property in which Behringer,
Agent or Lenders have been granted a lien or security interest to
secure any indebtedness of Guarantor to Behringer,
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Agent or Lenders pursuant to
the Credit Agreement; or
(f)
any release of any person or entity who may be liable in any manner
for the payment and collection of any amounts owed by Guarantor to
Behringer, Agent or Lenders; or
(g)
any Event of Default, whether or not Behringer, Agent or Lenders
have exercised any of its rights and remedies as set forth in the
Credit Agreement or the Mortgage upon the happening of any such
Event of Default; or
(h)
Guarantor’s voluntary or involuntary liquidation,
dissolution, sale of all or substantially all of its assets and
liabilities, appointment of a trustee, receiver, liquidator,
sequestrator or conservator for all or any part of
Guarantor’s assets, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition
or readjustment, or the commencement of other similar proceedings
affecting Guarantor or any of the assets of it; or
(i)
any change in or termination of the ownership interest of Guarantor
(whether direct or indirect) in Borrower; or
(j)
any conveyance of all or any portion of the Real Property
Collateral, whether or not pursuant to a foreclosure sale, a deed
in lieu of foreclosure, a transfer through bankruptcy, or
otherwise.
6.
The liability of Guarantor hereunder shall be reinstated and
revived, and the rights of the Behringer shall continue, with
respect to any amount at any time paid on account of the
Gu
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