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 "
the Project shall have been fmally completed
Finally Complete" for the purpose of this Guarantee if ( i)
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
for the Garage Project so
of occupancy or completion or a certificate of occupancy or completion
purpose
its
that Owner can occupy and use the Garage Project for
and provide Developer
intended
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
shall be deemed satisfied. The obligations being guaranteed by Guarantor pursuant to
this clause ( ii)
Section 2,
this
are hereinafter collectively referred to as the "
If
3.
the Completion
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
provided to Guarantor
to Developer
and all cure periods
shall
run concurrently
with
released,
to the
liability
no
amendment
or
modification
otherwise
constitute
been
given therefor or
a legal
or equitable
in
obligations of the Guarantor hereunder shall not be affected, impaired, modified or released by reason
the making by Developer, any Affiliate of Developer or Guarantor of any assignment for
of a)
(
the benefit of creditors or the bankruptcy or insolvency of Developer, any Affiliate of Developer
shall
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 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. (
hereby expressly
notice of all
notice of acceptance of this Guarantee and of presentment, demand and protest; ( c)
demand for observance
indulgences under the Hotel Development Agreement or the Ground Lease; ( d)
performance of, or enforcement of,any terms and provisions of this Guarantee or the
or
b)
WAIVER OF JURY
i)
NEIlHER GUARANTOR, NOR ANY
ASSIGNEE,SUCCESSOR, HEIR,
HERETO;
BE
iii)THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN
FULLY NEGOTIATED BY lHE PARTIES HERETO, AND lHESE PROVISIONS SHALL HAVE
NO EXCEPTIONS.lHEPARTIESHEREBY ACKNOWLEDGE THAT lHEY HAVE EACH
BEEN REPRESENTED BY COUNSEL IN SUCH
WAIVED;
iv)
NEIlHER lHE GUARANTOR, lHE AGENCY, NOR lHE CITY HAS
IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OlHER PARTY THAT
WILL NOT BE FULLY ENFORCED
b)
lHE PROVISIONS OF THIS SECTION 8(
NEGOTIATION.
IN ALL
THIS PROVISION IS A MATERIAL INDUCEMENT FOR lHE
AND v)
AGENCY TO ENTER INTO THE GROUND LEASE AND lHE HOTEL
INSTANCES;
or
obligations of Guarantor
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.
of the
Completion Obligation;
the
rescinded
or
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
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
continue to be effective or
reinstated,
as
the
the termination
or remedy. 12.
If any provision
of
this
Guarantee or any
portion
is
declared or
such
and
from this Guarantee,and the
be unenforceable or null
thereof
void,
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
the
Agency
or
personal
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
This Guarantee
representatives. 14.
with the
Agency
be modified
executed by
all of
In
the parties hereto. 16.
into this
Guarantee, Guarantor
of
constitutes a
valid and
of
law
or
H)
equity);
Guarantor' s execution and performance of this Guarantee
breach or violation of,or default under, any Requirements (
Guarantor is
bound;
of Guarantor' s
general
of
partner
not
be
rendered insolvent
by
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
Second
100 S. E.
Street
Suite 4650
Miami, FL 33131 with
copy to:
Holland &
Knight
LLP 701
Brickell Avenue
30th
Floor Miami, FL
Esq.if
33131
to the
Agency:Miami Beach
Redevelopment Agency
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
Miami,
FL 33131 Attn:Joel N.
A.
Minsker,P.
if to
the City: City
of
Miami Beach,