Exhibit 10.16
GUARANTY AGREEMENT
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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 0000 Xxxx
Xxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 ("Guarantor"), in favor of PCL CONSTRUCTION
ENTERPRISES, INC., a Colorado corporation (the "Lender").
RECITALS
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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
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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
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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
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
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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:
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(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 interest or lien on any property subject thereto or exhaust
any right or take any action against the Borrower or any other person or
entity or any collateral;
(c) any defense based on any event or circumstances described in
Sec.2; and
(d) any duty of the Lender to advise the Guarantor of any information
known to the Lender regarding the financial condition of the Borrower or
any other circumstance affecting the Borrower's ability to perform its
obligations to the Lender, it being agreed that the Guarantor assumes
responsibility for being and keeping informed regarding such condition or
any such circumstance.
Section 4. Subrogation. The Guarantor shall not exercise any rights which
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it may acquire by way of subrogation under this Guaranty, by any payment made
hereunder or otherwise, until all the Obligations shall have been paid in full.
If any amount shall be paid to the Guarantor on account of such subrogation
rights at any time when all the Obligations shall not have been paid in full,
such amount shall be held in trust for the benefit of the Lender and shall
forthwith be paid to the Lender to be credited and applied upon the Obligations,
whether matured or unmatured, in accordance with the terms of the Note.
Section 5. Representations and Warranties. The Guarantor hereby represents
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and warrants as follows:
(a) The execution, delivery and performance by the Guarantor of this
Guaranty do not contravene law or any contractual restriction binding on or
affecting the Guarantor.
(b) No authorization or approval or other action by, and no notice to
or filing with, any person or any governmental authority or regulatory
body, is required for the due execution, delivery and performance by the
Guarantor of this Guaranty.
(c) The Guarantor has received adequate consideration and equivalent
value for executing and delivering this Guaranty, and this Guaranty is the
legal, valid and binding obligation of the Guarantor enforceable against it
in accordance with its terms.
(d) The Guarantor is a limited partnership validly existing and in
good standing under the laws of the jurisdiction in which it was organized,
and the Guarantor's execution, delivery and performance of this Guaranty do
not contravene or conflict with its charter, by-laws or other
organizational documents.
(e) There is no pending or threatened action or proceeding affecting
the Guarantor before any court, governmental agency or arbitrator, which
may materially adversely affect the Guarantor's financial condition.
(f) Attached hereto as Exhibit A is a true and correct copy of the
Agreement of Limited Partnership of the Guarantor as in effect as of the
date hereof (the "Partnership Agreement").
Section 6. Covenants. Until the Note is satisfied in full, the Guarantor
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hereby covenants to the Lender as follows:
(a) The Guarantor will utilize its Net Cash Flow (as defined in the
Partnership Agreement) to repay the outstanding amount due under the Note.
(c) The Guarantor will not mortgage, pledge hypothecate, assign, grant
any lien or otherwise encumber in any manner its Net Cash Flow.
(d) The Guarantor will not modify any of the provisions of the
Partnership Agreement without the prior written consent of the Lender.
(d) The Guarantor will not make any distributions to any of the
partners of the Guarantor.
Section 7. Notices. All notices, requests, approvals, consents or other
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communications provided for under this Agreement shall be in writing and mailed
or hand-delivered to the applicable party at the addresses indicated below:
If to the Lender:
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If to the Guarantor: the address set forth at the
head of this Guaranty (or, if no address
is set forth there, the address of the
Guarantor in the Lender's records)
All such communication shall, when hand-delivered, be in effective when received
and, when mailed, be effective three (3) business days after being deposited in
the mails, addressed as aforesaid except that mailed notices to Lender shall not
be effective unless and until received by Lender.
Section 8. No Waiver; Remedies. No failure on the part of the Lender to
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exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 9. Continuing Guaranty. This Guaranty is a continuing guaranty and
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shall (i) remain in full force and effect until payment in full of the
Obligations and all other amounts payable under this Guaranty and satisfaction
of the Note; (ii) be binding upon the Guarantor and its successors and assigns,
and (iii) inure to the benefit of and be enforceable by the Lender and its
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), the Lender may assign or otherwise transfer the Note to
any other person or entity, and such other person or entity shall thereupon
become vested with all the rights in respect thereof granted to the Lender
herein or otherwise.
Section 10. Default. Upon the occurrence of an Event of Default (as defined
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in the Note), all the Guarantor's obligations hereunder shall immediately be due
and payable in full without notice.
Section 11. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED
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IN ACCORDANCE WITH THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY
CONFLICT-OF-LAW RULE OR PRINCIPLE THAT WOULD GIVE EFFECT TO THE LAW OF ANOTHER
JURISDICTION.
Section 12. Terminology. As used herein, "hereof," "hereunder," "hereby"
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and "herein" refer to this Guaranty as a whole and not merely the paragraph in
which they appear. As used herein, masculine pronouns shall be read as neuter
pronouns if and as appropriate.
Section 13. Severability. If any provision of this Guaranty shall be held
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invalid under any applicable law, such invalidity shall not affect any other
provision of this Guaranty that can be given effect without the invalid
provision, and, to that end, the provision hereof are severable.
Section 14. Submission to Jurisdiction. The Guarantor hereby irrevocably
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(a) submits, in any legal proceeding relating to this Guaranty, to the
non-exclusive in personam jurisdiction of any state or United States court of
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competent jurisdiction sitting in the State of Florida and agrees to suit being
brought in any such court; (b) waives any objection that it may now or hereafter
have to the venue of such proceeding in any such court located in Orange County,
Florida, or that such proceeding was brought in an inconvenient court; (c)
agrees to service of process in any such legal proceeding by mailing of copies
thereof (by registered or certified mail, if practicable) postage prepaid, to
the Guarantor's address specified at the head of this Guaranty or such other
address of which the Lender shall have been notified in writing; (d) agrees that
nothing herein shall affect the right of the Lender to effect service of process
in any other manner permitted by law; and (e) agrees that the Lender shall have
the right to bring any legal proceedings (including a proceeding for enforcement
of a judgment entered by any of the aforementioned courts) against the Guarantor
in any other court or jurisdiction in accordance with applicable law.
Section 15. Waiver of Jury Trial. GUARANTOR AND (BY ACCEPTANCE HEREOF) THE
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LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER OF
THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING ANY
COUNTERCLAIM) BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, THE LOAN, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER OR
THE GUARANTOR. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE
LOAN.
Section 16. Joint and Severally Liability. Guarantor shall be jointly and
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severally liable to Lender with any and all other guarantors which execute a
guaranty at any time in favor of Lender with respect to the Note or any other
Loan Document.
IN WITNESS WHEREOF, the Guarantor has duly executed and delivered this
Guaranty as of the date first above written.
TIERRA DEL SOL RESORT
(PHASE 1) LTD., a Florida
limited partnership
By: TDS Management, LLC, a Florida
limited liability company, its
General Partner
By:/s/Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Its: Manager
