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Stock Purchase Agrmt. Guar #18 .;,r II ! STOCK PURCHASE AGREEMENT GUARANTEE This STOCK PURCHASE AGREEMENT GUARANTEE (this "Guarantee") is made as of the ~ day of S~J-cn'\.beV , 1996, by the CITY OF MIAMI BEACH, a Florida municipal corpora Ion (the "Guarantor"), In favor of LOEWS HOTELS HOLDING CORPORATION, a Delaware corporation ("LHHC"). RECITALS: LHHC is contemporaneously herewith entering into that certain Stock Purchase Agreement (the "Stock Purchase Agreement"), dated as of the date hereof, between the Miami Beach Redevelopment Agency, a public body corporate and politic (the "Agency"), and LHHC, pursuant to which LHHC has agreed to purchase from the Agency all of the outstanding shares of common stock, par value $0.01 per share, of MB Redevelopment Inc., a Florida corporation, upon the terms, covenants and agreements contained in the Stock Purchase Agreement. 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 LHHC 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 Stock Purchase Agreement, are used herein with the meaning assigned to such capitalized terms in the Stock Purchase Agreement. 2. Guarantor hereby absolutely, unconditionally and irrevocably guarantees to LHHC the (i) due and punctual payment and satisfaction of all amounts required to be paid by the Agency under and in accordance with the terms and provisions of the Stock Purchase Agreement (the "Payment Obligation"), (ii) due and punctual payment, satisfaction, performance and discharge of the provisions Article 7 of the Stock Purchase Agreement pursuant to which the Agency indemnifies and holds harmless LHHC as set forth in Section 7.2(a) thereof and in the manner set forth in Section 7.2(c) thereof (the "Indemnification Obligation") and (iii) due and punctual performance of all the other terms, covenants, conditions and obligations on the part of the Agency to be discharged, performed or satisfied under and in accordance with the terms and provisions of the Stock Purchase Agreement (the "Performance Obligation"). The Payment Obligation, Indemnification Obligation and Performance Obligation being guaranteed by Guarantor pursuant to this Section 2, are sometimes hereinafter collectively referred to as the "Guaranteed Obligations". 3. If any of the Guaranteed Obligations are not duly and punctually performed, paid, satisfied or discharged by the Agency on or before the time such Guaranteed W6-MI962610.073 Obligations are to be performed, paid, satisfied or discharged by the Agency in accordance with the provisions of the Stock Purchase Agreement, then, upon demand of LHHC, Guarantor shall, perform, pay, satisfy or discharge such Guaranteed Obligations in the manner required by and in accordance with the provisions of the Stock Purchase Agreement and this Guarantee. LHHC agrees to accept performance by the Guarantor of all or any of the terms, covenants, conditions or agreements on the Agency's part to be performed under the Stock Purchase Agreement with the same force and effect as though performed by the Agency thereunder. 4. Intentionally Deleted. 5. Guarantor expressly agrees that LHHC 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 Stock Purchase Agreement; (b) modify, amend or change any provision of the Stock Purchase Agreement, or effect any release, compromise or settlement in connection therewith or (c) convey, assign, or otherwise transfer its interest in this Guarantee to LHHC's successors and permitted assigns pursuant to the Stock Purchase Agreement. Notwithstanding the foregoing, (i) Guarantor's obligations and liabilities hereunder shall be deemed to be released, affected or impaired to the extent that the Agency's obligations and liabilities under the Stock Purchase Agreement are so waived, modified, amended, changed, released, compromised, settled or in any other way altered, and (ii) no amendment or modification to the Stock Purchase Agreement which increases the liability of the Agency thereunder shall be made without the express consent of Guarantor. 6. Except as otherwise expressly set forth in the last sentence of Section 5 of this Guarantee, the obligations of Guarantor under this Guarantee shall be unconditional, absolute and irrevocable, irrespective of the genuineness, validity, regularity or enforceability of the Stock Purchase 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 Guarantor hereunder shall not be affected, impaired, modified or released by reason of (a) the making by the Agency, any Affiliate of the Agency or Guarantor of any assignment for the benefit of creditors or the bankruptcy or insolvency of the Agency, any Affiliate of the Agency or Guarantor, (b) any action taken by the Agency, any Affiliate of the Agency or Guarantor in any bankruptcy or insolvency proceeding, including, without limitation, disaffirmance of the Stock Purchase Agreement, (c) any default by the Agency under the Stock Purchase Agreement, (d) the liquidation or dissolution of the Agency, any Affiliate of the Agency or Guarantor, (e) any change in or termination of Guarantor's ownership interest in any Person or (f) the enforcement by LHHC of any of its rights under the Stock Purchase Agreement; it being agreed that in the event of any of the foregoing, the liability of Guarantor hereunder shall continue hereunder as if such event had not occurred. - 2 - W6-MI962610.073 7. Except as otherwise expressly set forth in 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 LHHC of any remedies it may have against the Agency or any other Person with respect to the Stock Purchase Agreement, or any other agreement, whether pursuant to the terms thereof or by law or pursuant to any other security agreement or guaranty. Guarantor and LHHC each acknowledge and agree that this Guarantee is a guarantee of payment and performance and not of collection in respect of any Guaranteed Obligations. Anyone or more successive or concurrent actions may be brought hereon against Guarantor with respect to the Guaranteed Obligations, either in the same action or proceeding, if any, brought against the Agency or any other Person, or in separate actions as often as LHHC, in its sole discretion, may deem advisable. Guarantor may be joined in any action against the Agency in connection with the Stock Purchase Agreement solely with respect to the Guaranteed Obligations. With respect the Guaranteed Obligations, recovery may be had against Guarantor in such action or in any independent action against Guarantor, without LHHC first pursuing or exhausting any remedy or claim against the Agency or any other Person, as the case may be, or their respective successors or assigns. 8. 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 Stock Purchase Agreement; (d) demand for observance or performance of, or enforcement of, any terms and provisions of this Guarantee or the Stock Purchase Agreement; and (e) all other notices and demands otherwise required by law which Guarantor may lawfully waive. Guarantor also waives, but only if and to the extent that Guarantor may lawfully so do, trial by jury in any action brought on or with respect to this Guarantee. ~:' 9. Guarantor shall not enforce any right of subrogation it may now or hereafter have against the Agency by reason of any payments or acts of performance by Guarantor in compliance with the obligations of Guarantor hereunder, and Guarantor shall not enforce any remedy which Guarantor now or hereafter shall have against the Agency 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 paid, 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 payment and/or performance of the Guaranteed Obligations) shall be available to Guarantor in any action or proceeding brought by LHHC to enforce the Guaranteed Obligations; 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 LHHC hereunder, nor shall the - 3 - W6-MI962610.073 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 LHHC in any separate action or proceeding. Guarantor agrees that if at any time all or any part of any amounts at any time received by LHHC from the Agency, Guarantor, any Affiliate of the Agency or Guarantor, or any other Person, as the case may be, for or with respect to the Guaranteed Obligations is or must be rescinded or returned by LHHC by reason of any judgment or decree of any court having jurisdiction (including, without limitation, by reason of the insolvency, bankruptcy or reorganization of the Agency, Guarantor, any Affiliate of the Agency 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 LHHC and the obligation guaranteed hereunder which was to have been discharged by such rescinded or restored amount shall continue to be effective or reinstateo, as the case may be, to the extent of such amount. 11. The rights and remedies afforded to LHHC 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 LHHC 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 LHHC 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 LHHC, 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. If the Guarantor does not perform, pay, satisfy or discharge the Guaranteed Obligations in accordance with the provisions of the Stock Purchase Agreement and this Guarantee, Guarantor acknowledges and agrees that all remedies available to LHHC under the Stock Purchase Agreement in the event of a default by the Agency under the Stock Purchase Agreement shall be available to LHHC hereunder and enforceable against Guarantor hereunder. 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. 13. This Guarantee shall inure solely to the benefit of LHHC its successors and permitted assigns pursuant to the Stock Purchase Agreement and, with respect to the Indemnification Obligation, to the parties described in Section 7.2(a) thereof that are entiltled to indemnification under Sections 7.2(a) and (c) thereof; and, shall be binding solely upon Guarantor, its successors and assigns. - 4 - W6-MI962610.073 14. This Guarantee shall be governed by and construed in accordance with the laws of the State of Florida 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 LHHC 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 LHHC to enter into this Guarantee, Guarantor represents and warrants to LHHC that as of the date hereof: (i) Guarantor is a municipal corporation duly validly existing, and in good standing under the laws of the State of Florida; (ii) Guarantor has the requisite power and authority to enter into and carry out the terms and provisions of this Guarantee, and the execution, delivery, and performance of this Guarantee have been duly authorized and approved by all requisite action; (iii) 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); (iv) Guarantor's execution and performance of this Guarantee will not result in a breach or violation of, or default under, any Requirements applicable to Guarantor or any agreement, order, commitment, judgment, or decree by which Guarantor is bound; (v) The person executing this Guarantee on behalf of Guarantor has all requisite authority to do so, as a duly authorized signatory of Guarantor; and (vi) 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 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, - 5 - W6-MI962610.073 return receipt requested, (ii) personal delivery with a signed 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: City of Miami Beach City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 with a copy to: City of Miami Beach City Attorney 1700 Convention Center Drive Miami Beach, florida 33139 and with a copy to: Squire, Sanders & Dempsey Two Renaissance Square Phoenix, Arizona 85004 Attention: Richard f. Ross, Esq. if to LHHC: Loews Hotels Holding Corporation 667 Madison Avenue New York, New York 10021 Attention: Corporate Secretary with a copy to: Hughes Hubbard & Reed 201 S. Biscayne Boulevard, Suite 2500 Miami, Florida 33131 Attention: William A. Weber, Esq. Any such 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. - 6 - W6-MI962610.073 18. The acceptance by LHHC of this Guarantee shall constitute its acceptance of the terms and provisions hereof. 19. Notwithstanding anything to the contrary contained in this Guarantee, if, and only if, the Requirements so require, the obligations of Guarantor under this Guarantee shall be required to be satisfied solely from Non-Ad Valorem Funds (as hereinafter defined) budgeted and appropriated by the City on an annual basis as described in this Section 19. In which event, Guarantor hereby covenants and agrees, to appropriate in its annual budget, or by amendment thereto, if necessary, from Non-Ad Valorem Funds lawfully available in each fiscal year, amounts sufficient to satisfy all of its obligations under this Guarantee. Such covenant and agreement on the part of the Guarantor to budget and appropriate such amounts of Non-Ad Valorem Funds shall be cumulative to the extent not paid, and shall continue until such Non-Ad Valorem Funds or other legally available funds in amounts sufficient to satisfy all of Guarantor's obligations under this Guarantee shall have been budgeted, appropriated and actually paid. Subject to the provisions of this Section 19, such covenant and agreement on the part of the Guarantor to budget and appropriate such amount of Non-Ad Valorem Funds as security for the performance of all of its obligations under this Guarantee shall in no way be construed as limiting the liability of Guarantor under this Guarantee. Notwithstanding the foregoing covenant and agreement of the Guarantor, the Guarantor does not covenant to maintain any services or programs now provided or maintained by the Guarantor, which generate Non-Ad Valorem Funds. Such covenant and agreement to budget and appropriate does not create any lien upon or pledge of such Non-Ad Valorem Funds, nor does it preclude the Guarantor from pledging in the future its Non-Ad Valorem Funds, nor does it require the Guarantor to levy and collect any particular Non-Ad Valorem Funds, nor does it give LHHC a prior claim on the Non-Ad Valorem Funds as opposed to claims of general creditors of the Guarantor. Such covenant and agreement to appropriate Non-Ad Valorem Funds is subject in all respects to the payment of obligations secured by a pledge of all or portions of the Non-Ad Valorem Funds heretofore or hereinafter entered into (including the payment of debt service on bonds and other debt instruments). However, the covenant and agreement to budget and appropriate in its general annual budget or amendment thereto for the purposes and in the manner stated herein shall have the effect of making available in the manner described herein Non-Ad Valorem Funds and placing on the Guarantor a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of Section 166.241 (3), Florida Statutes, which provides, in part, that the governing body of each municipality make appropriations for each fiscal year which, in anyone year, shall not exceed the amount to be received from taxation or other revenue sources; and subject further, to the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the City or which are legally mandated by applicable law. To the extent Requirements do not require that the obligations of Guarantor hereunder be satisfied solely from Non Ad-Valorem Funds as described in this Section 19, Tenant shall have - 7 - W6-MI962610.073 all the rights and remedies available at law or in equity under the laws of the State of r:.Jrida. ... The term "Non Ad-Valorem Funds" shall mean all revenues of the Guarantor derived from any source other than ad valorem taxation on real or personal property, which are legally available to make the payments required herein, but only after provision has been made by the Guarantor for the payment of all essential or legally mandated services. 20. This Guarantee and the obligations of Guarantor hereunder are solely corporate obligations of the Guarantor, and no personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers, members, partners, holders of other ownership interests, directors, elected or appointed officials (including, without limitation, the Mayor and commissioners of the Guarantor) or employees of the Guarantor, or of any successor corporation or other successor entity, or any of them, under or by reason of the obligations, covenants or agreements contained in this Guarantee or implied therefrom; and any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer, member, partner, holder of other ownership interest, director or employee, as such, or under or by reason of the obligations, covenants or agreements contained in this Guarantee or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution and delivery of this Guarantee by Guarantor. EXECUTED as of the day and year first above written. ATTEST: ByJ~ D~J f~ Robert Parcher Name: ~0.beR..* VOJzc,h 'f f2- City Clerk rORM APPROVED By L~~?~ Date q /~d 19.6 . - 8 - W6-MI962610.073