Section I Completion Guarantee
COMPLETION GUARANTEE
This COMPLETION GUARANTEE (the "Guarantee") is made as of the _ day of
,1997, by R. DONAHUE PEEBLES, a resident of Dade County, Florida,
individually (the "Guarantor"), in favor of MIAMI BEACH REDEVELOPMENT AGENCY,
a public body corporate and politic (the "Agency" or the "Owner"), and the CITY OF MIAMI
BEACH, FLORIDA, a municipal corporation of the State of Florida (the "City").
RECITALS:
A. The Agency is contemporaneously herewith entering into that certain Agreement of
Lease (the "Ground Lease"), dated as ofthe date hereof, between the Agency, as Owner, and RDP
Royal Palm Hotel Limited Partnership, a Florida limited partnership, as Tenant, pursuant to which
Developer (hereinafter defined) has agreed to lease the Land (as defined in the Ground Lease) on
which the Hotel (as defined in the Ground Lease) will be constructed.
B. The Agency is also contemporaneously herewith entering into that certain Hotel
Development Agreement (the "Hotel Development Agreement"), dated as of the date hereof,
between the Agency, as Owner, and RDP Royal Palm Hotel Limited Partnership, a Florida limited
partnership, (the "Developer"), as Developer.
C. The Agency previously entered into at certain Garage Development Agreement (the
"Garage Development Agreement"), dated as of September 20, 1996, between the Agency, and
St. Moritz Hotel Corp., Inc., a Florida corporation ("SMHC"), in order to document the respective
rights and obligations of Owner and SMHC relating to the design, development and construction of
the "Project", as defined in the Garage Development Agreement (including the Roadway Extension
(as defined in the Ground Lease), the "Garage Project").
D. Pursuant to the Ground Lease and the Hotel Development Agreement, Developer will
be required to develop, construct, furnish and equip the Hotel in accordance with the terms thereof.
In consideration of the foregoing premises and for other good and valuable consideration the
receipt and legal sufficiency of which is hereby acknowledged, Guarantor hereby agrees for the
benefit of the Agency and the City as follows:
1. Capitalized terms defined and used herein are used herein with the meanings assigned
herein to such terms. Unless the context otherwise requires, capitalized terms which are used herein
without definition and which are defined in the Hotel Development Agreement, are used herein with
the meaning assigned to such capitalized terms in the Hotel Development Agreement.
2. Provided that the Owner is not in default (beyond any applicable notice and cure
period) of any of the terms, covenants, conditions or obligations under Section 6.1 of the Hotel
Development Agreement or under Section 21.1 of the Ground Lease, Guarantor hereby absolutely,
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irrevocably, continuously and unconditionally, guarantees to the Agency and the City the
performance of the obligations of Developer to Finally Complete the Project (as hereinafter defined
in this Section 2) by the Completion Deadline. Notwithstanding anything to the contrary contained
in this Guarantee or the Hotel Development Agreement, the Project shall be deemed "Finally
Complete" for the purpose of this Guarantee if (i) the Project shall have been finally completed in
accordance with the Plans and Specifications, as certified by the Architect, and (ii) all of the
Improvements in the Project shall have been issued Final COs (as such term is defined in the Ground
Lease); provided, however, that to the extent the reason such Final COs shall not have been issued
is due to the Owner's failure to substantially complete the Garage Project, which includes, but is not
limited to, the issuance by the applicable governmental authority of a temporary certificate of
occupancy or completion or a certificate of occupancy or completion for the Garage Project so that
Owner can occupy and use the Garage Project for its intended purpose and provide Developer with
the "Easement" for the number of "Parking Spaces" in the "Facility," (as such terms are defined
in that certain Garage Easement Agreement dated as of the date hereof between Owner and
Developer), to which the Tenant is entitled pursuant to the Garage Easement Agreement, then this
clause (ii) shall be deemed satisfied. The obligations being guaranteed by Guarantor pursuant to this
Section 2, are hereinafter collectively referred to as the "Completion Obligation".
3. If the Completion Obligation is not performed by Developer by the Completion
Deadline, then, upon demand of the Agency or the City, Guarantor shall perform the Completion
Obligation in accordance with this Guarantee. The Agency and the City agree to accept performance
by the Guarantor of all or any of the covenants, conditions or agreements on the Developer's part
to be performed under the Hotel Development Agreement with the same force and effect as though
performed by the Developer thereunder.
4. Guarantor shall not be deemed to have failed to perform his obligations under Section
2 hereof until Guarantor shall have failed to perform the Completion Obligation within the cure
period provided to Developer under the Hotel Development Agreement and all cure periods provided
to Guarantor shall run concurrently with the cure periods provided to Developer under the Hotel
Development Agreement.
5. Guarantor expressly agrees that the Agency or the City, as the case may be, may, in
its sole and absolute discretion, without notice to or further assent of Guarantor and without in any
way releasing, affecting or impairing the obligations and liabilities of Guarantor hereunder: (a) waive
compliance with, or any default under, or grant any other indulgences with respect to the Hotel
Development Agreement; (b) modify, amend or change any provision of the Hotel Development
Agreement, or effect any release, compromise or settlement in connection therewith; or (c) assign
its entire interest in this Guarantee and the Hotel Development Agreement to the City or any
instrumentality ofthe Agency or, in accordance with the Ground Lease, any other Person, or the City
which succeeds to the rights of the Agency under the Ground Lease in accordance with the terms
thereof. Notwithstanding the foregoing, (i) Guarantor's obligations and liabilities hereunder shall
be deemed to be released, affected or impaired to the extent that Developer's obligations and
liabilities under the Hotel Development Agreement are so waived, modified, amended, changed,
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released, compromised, settled or in any other way altered, and (ii) no amendment or modification
to the Hotel Development Agreement which increases the liability of Developer thereunder shall be
made without the express consent of the Guarantor.
6. Except as otherwise expressly set forth in Section 2 and the last sentence of Section
5 of this Guarantee, the obligations of Guarantor under this Guarantee shall be unconditional,
absolute, continuing and irrevocable, irrespective of the genuineness, validity, regularity or
enforceability of the Hotel Development Agreement or any security which may have been given
therefor or in connection therewith or any other circumstances which might otherwise constitute a
legal or equitable discharge of a surety or guarantor. This Guarantee and the obligations of the
Guarantor hereunder shall not be affected, impaired, modified or released by reason of (a) the
making by Developer, any Affiliate of Developer or Guarantor of any assignment for the benefit of
creditors or the bankruptcy or insolvency of Developer, any Affiliate of Developer or Guarantor, (b)
any action taken by Developer, any Affiliate of Developer or Guarantor in any bankruptcy or
insolvency proceeding, including, without limitation, disaffirmance of the Hotel Development
Agreement or the Ground Lease, (c) any default by Developer under the Hotel Development
Agreement or the Ground Lease, (d) the liquidation or dissolution of Developer, any Affiliate of
Developer or Guarantor, (e) any change in or termination of the Guarantor's ownership interest in
Developer, (f) the enforcement by the Agency or the City of any of its rights under the Hotel
Development Agreement or the Ground Lease, or (g) the sale, conveyance, transfer or assignment
by Developer of all or any portion of its interest under the Hotel Development Agreement or the
Ground Lease; it being agreed that in the event of any of the foregoing, the liability of the Guarantor
hereunder shall continue hereunder as if such event had not occurred. Guarantor understands that
the Hotel may be refinanced from time to time and agrees that such refinancings shall not affect his
obligations hereunder, regardless of the amount of such refinancings.
7. Except as otherwise expressly set forth in Section 2 and the last sentence of Section
5 of this Guarantee, the liability of Guarantor under this Guarantee shall be primary, direct and
immediate, and not conditional or contingent upon pursuit by the Agency or the City of any remedies
Guarantor may have against Developer or any other Person with respect to the Hotel Development
Agreement, any of the Project Agreements (as such term is defined in the Ground Lease), or any
other agreement, whether pursuant to the terms thereof or by law or pursuant to any other security
agreement or guaranty. Guarantor and the Agency each acknowledge and agree that this Guarantee
is a guarantee of performance in respect of the Completion Obligation. Anyone or more successive
or concurrent actions may be brought hereon against Guarantor with respect to the Completion
Obligation, either in the same action or proceeding, if any, brought against Developer or any other
Person, or in separate actions as often as the Agency or the City, in its sole discretion, may deem
advisable. Guarantor may be joined in any action against Developer in connection with the Hotel
Development Agreement solely with respect to the Completion Obligation. With respect to the
Completion Obligation, recovery may be had against Guarantor in such action or in any independent
action against Guarantor without the Agency or the City first pursuing or exhausting any remedy or
claim against Developer or any other Person, as the case may be, or their respective successors or
assigns. Until termination of this Guarantee in accordance with the provisions hereof, the liability
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of Guarantor under this Guarantee shall continue after (i) any assignment or transfer by Developer,
or any subsequent developer under the Hotel Development Agreement, of its interest under the Hotel
Development Agreement or (ii) any assignment or transfer by Developer, or any subsequent tenant
under the Ground Lease, of its interest under the Ground Lease.
8. (a) Except as otherwise expressly set forth in this Guarantee, Guarantor hereby
expressly waives: (a) presentment and demand for payment and protest of non-payment; (b) notice
of acceptance of this Guarantee and of presentment, demand and protest; (c) notice of all indulgences
under the Hotel Development Agreement or the Ground Lease; (d) demand for observance or
performance of, or enforcement of, any terms and provisions of this Guarantee or the Hotel
Development Agreement or the Ground Lease; and (e) all other notices and demands otherwise
required by law which Guarantor may lawfully waive.
(b) WAIVER OF JURY TRIAL. BY THE EXECUTION HEREOF, THE GUARANTOR
HEREBY KNOWINGLY, VOLUNT ARIL Y AND INTENTIONALLY AGREES THAT:
(i) NEITHER GUARANTOR, NOR ANY ASSIGNEE, SUCCESSOR, HEIR, OR
LEGAL REPRESENTATIVE OF ANY OF THE SAME SHALL SEEK A JURY TRIAL IN ANY
LA WSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE
ARISING FROM OR BASED UPON THIS GUARANTY OR ANY OF THE OBLIGATIONS
WHICH ARE SECURED HEREBY, OR THE DEALINGS OR RELATIONSHIP BETWEEN OR
AMONG THE PARTIES HERETO;
(ii) NEITHER GUARANTOR, NOR THE AGENCY OR THE CITY WILL SEEK
TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED,
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT BE
WAIVED;
(iii) THE PROVISIONS OF THIS P ARAGRAPH HAVE BEEN FULLY
NEGOTIATED BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL HAVE NO
EXCEPTIONS. THE PARTIES HEREBY ACKNOWLEDGE THAT THEY HAVE EACH BEEN
REPRESENTED BY COUNSEL IN SUCH NEGOTIATION.
(iv) NEITHER THE GUARANTOR, THE AGENCY, NOR THE CITY HAS IN
ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE
PROVISIONS OF THIS SECTION 8(b) WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES; AND
(v) THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENCY TO
ENTER INTO THE GROUND LEASE AND THE HOTEL DEVELOPMENT AGREEMENT.
9. Guarantor shall not enforce any right of subrogation he may now or hereafter have
against Developer by reason of any payments or acts of performance by Guarantor in compliance
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with the obligations of Guarantor hereunder, and Guarantor shall not enforce any remedy which
Guarantor now or hereafter shall have against Developer by reason of anyone or more payments or
acts of performance in compliance with the obligations of Guarantor hereunder unless and until all
of the obligations of Guarantor hereunder have been fully discharged, performed and satisfied,
whereupon Guarantor shall have such subrogation rights as may be allowed under applicable law.
10. No setoff, counterclaim or crossclaim, reduction or diminution of an obligation or any
defense of any kind or nature (other than performance of the Completion Obligation) shall be
available to Guarantor in any action or proceeding brought by Owner to enforce the Completion
Obligation; provided, however, that the foregoing shall not be deemed a waiver of the right of
Guarantor to assert any compulsory counterclaim arising from a claim brought by Owner hereunder,
nor shall the foregoing be deemed a waiver of or prejudice in any manner whatsoever, of Guarantor's
right to assert any claim which constitutes a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against Owner in any separate action or proceeding. Guarantor agree that if at any time
all or any part of any amounts at any time received by the Agency or the City from Developer,
Guarantor, any Affiliate of Developer or Guarantor, or any other Person, as the case may be, for or
with respect to the Completion Obligations are or must be rescinded or returned by the Agency by
reason of any judgment or decree of any court having jurisdiction (including, without limitation, by
reason of the insolvency, bankruptcy or reorganization of Developer, Guarantor, any Affiliate of
Developer or Guarantor, or any other Person), then Guarantor's obligations hereunder shall, to the
extent of the amount rescinded or restored, be deemed to have continued in existence
notwithstanding such previous receipt by the Agency or the City and the obligation guaranteed
hereunder which was to have been discharged by such rescinded or restored amount shall continue
to be effective or reinstated, as the case may be, to the extent of such amount, whether or not this
Guarantee has terminated, and the obligations of the Guarantor in this sentence shall survive the
termination hereof.
11. The rights and remedies afforded to the Agency and the City in this Guarantee are
cumulative and are not exclusive of any other right or remedy against Guarantor or any other Person
provided by law, in equity or under any other agreement or instrument and all such rights and
remedies may be exercised singly or concurrently. No delay or omission by the Agency or the City
in exercising any such right or remedy shall operate as a waiver thereof. No waiver of any right or
remedy hereunder shall be deemed made by the Agency or the City unless in writing and shall apply
only to the particular instance specified therein and shall not impair the further exercise of such right
or remedy or of any other right or remedy of the Agency or the City, and no single or partial exercise
of any right or remedy hereunder shall preclude any other or further exercise thereof or of any other
right or remedy.
12. If any provision of this Guarantee or any portion thereof is declared or found by a
court of competent jurisdiction to be unenforceable or null and void, such provision or portion
thereof shall be deemed stricken and severed from this Guarantee, and the remaining provisions and
portions thereof shall continue in full force and effect.
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13. This Guarantee shall inure solely to the benefit of the Agency and the City, or any
instrumentality of the Agency or the City or any other Person which succeeds to the rights of the
Agency or the City under the Ground Lease and in accordance with the terms thereof, and shall be
binding solely upon Guarantor, his successors, assigns, heirs, administrators and personal
representatives.
14. This Guarantee shall be governed by and construed in accordance with the laws of
the State of Florida (without regard to principles of conflicts oflaw) applicable to agreements made
and to be wholly performed within the State of Florida.
15. This Guarantee shall constitute the entire agreement of Guarantor with the Agency
and the City with respect to the subject matter hereof. This Guarantee may not be modified or
amended, except by an agreement in writing executed by all of the parties hereto.
16. In order to induce the Agency and the City to enter into this Guarantee, Guarantor
represents and warrants to the Agency and the City that as of the date hereof:
(i) This Guarantee constitutes a valid and binding obligation of Guarantor
enforceable against Guarantor in accordance with its terms (subject to any
bankruptcy, insolvency, reorganization, receivership, moratorium or similar
laws affecting the rights and remedies of creditors generally, and subject to
the effect of general principles of equity, whether applied by a court of law
or equity);
(ii) Guarantor's execution and performance of this Guarantee will not result in
a breach or violation of, or default under, any Requirements (as such term is
defined in the Ground Lease), applicable to Guarantor or any agreement,
order, commitment, judgment, or decree by which Guarantor is bound;
(iii) Guarantor is an Affiliate of Developer by virtue of Guarantor's ownership
interest in and voting control of the corporate general partner of the
Developer; and
(iv) Guarantor is solvent and will not be rendered insolvent by reason of this
Guarantee.
17. Whenever it is provided herein that notice, demand, request, consent, approval or
other communication shall or may be given to, or served upon, either of the parties by the other, or
whenever either of the parties desires to give or serve upon the other any notice, demand request,
consent, approval or other communication with respect hereto, each such notice, demand, request,
consent, approval or other communication (herein referred to in this Section 17 as a "Notice") shall
be in writing and shall be effective for any purpose only if given or served by (i) certified or
registered U.S. Mail, postage prepaid, return receipt requested, (ii) personal delivery with a signed
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receipt or (iii) a recognized national courier service, addressed as follows (or to such other addresses
as a party may direct by a Notice to the other party hereto; provided, however, that the number of
parties to receive such Notice, together with copies thereof, shall not be increased):
if to Guarantor:
R. Donahue Peebles
701 Brickell Avenue
Suite 2040
Miami, FL 33131
with a copy to:
Holland & Knight LLP
701 Brickell Avenue
30th Floor
Miami, FL 33131
Attn: Stuart K. Hoffman, Esq.
if to the Agency:
Miami Beach Redevelopment Agency
1700 Convention Center Drive
4th Floor
Miami Beach, Florida 33139
Attn: Executive Director
with a copies to:
Miami Beach Redevelopment Agency
1700 Convention Center Drive
4th Floor
Miami Beach, FL 33139
Attn: General Counsel
and
Bloom & Minsker
800 Brickell Avenue
Suite 1100
Miami, FL 33131
Attn: Joel N. Minsker, P.A.
if to the City:
City of Miami Beach, Florida
1700 Convention Center Drive
4th Floor
Miami Beach, Florida 33139
Attn: City Manager
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with a copies to:
City of Miami Beach, Florida
1700 Convention Center Drive
4th Floor
Miami Beach, FL 33139
Attn: City Attorney
and
Bloom & Minsker
800 Brickell Avenue
Suite 1100
Miami, FL 33131
Attn: Joel N. Minsker, P.A.
Any Notice may be given, in the manner provided in this Section, on behalf of any party by
such party's attorneys as designed by such party by Notice hereunder. Every Notice shall be
effective on the date actually received, as indicated on the receipt therefor or on the date delivery
thereof is refused by the recipient thereof.
18. The acceptance by the Agency and the City of this Guarantee shall constitute their
acceptance of the terms and provisions hereof.
19. This Guarantee shall terminate, and Guarantor shall be released from any and all
further obligations and liabilities hereunder, at the earlier of (a) such time as the Completion
Obligation has been performed (except as otherwise provided in Section 9 or Section 10 hereof), or
(b) such time as neither the Agency nor the City own the fee simple title to the Land.
20. From and after the date of the Guarantee, and for so long as this Guarantee is in
effect, the Guarantor shall make updated personal financial statements of the Guarantor available
for inspection by duly authorized representatives of the Agency and the City on an annual basis, and
shall advise the Agency and the City, in writing, of any material adverse change in the financial
condition of the Guarantor, promptly, as soon as such change becomes known to Guarantor,
including, but not limited to, material adverse changes as reflected on such personal financial
statements. Whenever financial statements are required to be made available for inspection by the
Agency and the City pursuant to this Section 20, such personal financial statements shall be made
available at a location within Dade County, Florida, during normal business hours.
21. Guarantor hereby agrees that time is of the essence in the performance of his
obligations under this Guarantee.
22. Events of Default. Guarantor shall be in default under this Guarantee upon the
happening of any of the following events, circumstances or conditions:
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(a) the Project is not Finally Complete by the Completion Deadline; or
(b) breach of any material representation, warranty or covenant contained herein, including,
but not limited to, failure to make available the financial statements or to advise the Agency or the
City of any material adverse change in the financial condition of the Guarantor in accordance with
Section 20 hereof; or
(c) death, insolvency, business failure, appointment of a receiver of any part of the property
of, assignment for the benefit of creditors by, or the commencement of any proceeding under any
State or Federal bankruptcy or insolvency laws by or against Guarantor; or
(d) upon entry of any monetary judgment or the assessment and/or filing of any tax lien,
and/or the issuance of any writ or garnishment or attachment against any property of, debts due or
rights of a Guarantor, and/or commencement of any action or proceeding to seize moneys or assets
of a Guarantor, against Guarantor in any amount in excess of $50,000.
Notwithstanding anything to the contrary contained herein, in the event of any default
described in subsections (b), (c) or (d) of this Section 22, the Guarantor and/or the Developer shall
have the right to cure any default under such subsections by delivering to the Agency and the City
within fifteen (15) calendar days of the receipt of written notice of such default from the Agency or
the City, a substitute completion guarantee (the "Substitute Guarantee") from a person or business
entity having a minimum net worth at least equal to the net worth of the Guarantor as of the date of
this Completion Guarantee. Such Substitute Guarantee shall contain the same provisions as this
Completion Guaranty and shall be modified only insofar as may be necessary in the event that the
guarantor thereunder is a business entity, such as a corporation, partnership or limited liability
partnership. The acceptance of such Substitute Guaranty shall be in the reasonable discretion of the
Agency and the City.
23. The Agency and the City may avail themselves of all remedies at law or in equity to
remedy any default hereunder.
24: This Guarantee represents the entire agreement between the parties, and no waivers
or modifications shall be valid unless they given in writing, signed by the party to be charged
thereby, and expressly approved in writing by a duly authorized officer of the Agency or the City.
EXECUTED as of the day and year first above written.
ES, a resident of Dade County,
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STATE OF FLORIDA
ss:
COUNTY OF DADE
On the .(!2:.o.lday of ~{lj.-f)k ,199~sonallY appeared belore me, the undersigned
authority, R. DONAH PEEBLES, who IS _ known to me personally to be the person who is
subscribed to the within instrument _ who produced a valid drivers license and
acknOWle~e that he executed the within instrument in the space provide bov on this ~
day of 997.
NOTARY PUBLIC, :A.TE OF FLORIDA
My commission expires:
~t1'V Pile. SHERRIL E. PALMER
:i~ ~ COMMISSION # CC 6044922
f!1 ~ EXI"ltES JUL '.2001
'f~ ~ IONCEO THRU
OF ~ ATl.ANTIC leNDING CO., INC.
~
1', \ATTO\LEVL\HOTEL\COMPLGTY. FIN
10/21/97
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