CONTINUING AND UNCONDITIONAL GUARANTY
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CONTINUING AND UNCONDITIONAL GUARANTY
FOR VALUE RECEIVED, and to induce NCNB National Bank of Florida, 1640
Gulf-to-Bay Boulevard, Clearwater, Florida (herein called "Bank") to make a loan or
advances or to extend credit or other financial accommodation or benefit, with or without
security, to or for the account of Chi Chi Rodriguez Youth Foundation, Inc., a Florida not-
for-profit corporation (herein called "Borrower" or the "Foundation"), the undersigned
Guarantor hereby becomes surety for and irrevocably and unconditionally guarantees to
Bank the payment when due, whether by acceleration or otherwise, of any and all liabilities
(as hereinafter defined) of Borrower to Bank. Guarantor further covenants and agrees as
follows:
1. The term "Liability" or "Liabilities" as used herein shall include,
without limitation (except as expressly set forth herein), all liabilities and obligations of
Borrower to Bank and all obligations of the undersigned hereunder, however and whenever
incurred or evidenced, whether primary, secondary, direct, indirect, absolute, contingent,
sole, joint or several, due or to become due, or which may be herein or hereafter
contracted or acquired, or incurred directly or indirectly as a result thereof, and all
extensions or renewals thereof and all sums payable under or by virtue thereof including,
without limitation, all amounts of principal and interest and all expenses (including
attorneys' fees and costs of collection incurred in the collection thereof or the
enforcement of Bank's rights), whether arising in the ordinary course of business or J
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otherwise, and whether held or to be held by Bank for its own account or 3S agent for
another or others. The term Liabilities as used herein shall include all Liabilities of any
successor entity or entities to Bank.
2. The undersigned waives notice of acceptance of this guaranty and
notice of any Liability to which it may apply, and further waives presentment, demand for
payment, protest, notice of dishonor or nonpayment of any Liabilities, and notice of any
suit or the taking of other action by Bank against Borrower and any other notice to any
party liable thereon (including the undersigned).
3. Bank may at any time and from time to time, without notice to and
without incurring responsibility to the undersigned, and without impairing, releasing or
otherwise affecting the obligations of the undersigned in whole or in part and without the
endorsement or execution by the undersigned of any additional consent, waiver or guaranty:
(a) change the manner, place or terms of payment, and change ~r extend the time of, or
renew or alter, any Liability or installment thereof, or any security therefor, and the
guaranty herein made shall apply to the Liabilities as so changed, extended, renewed, or
otherwise altered; provided, however, that in no event shall the Bank advance funds such
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that the principal amount outstanding exceeds $2,500,000; (b) sell, exchange, release,
surrender, realize upon or otherwise deal with in any manner and in any order any property
at any time pledged or mortgaged to secure the Liabilities and any offset thereagainst; (c)
exercise or refrain from exercising any rights against Borrower or others (including the
undersigned) or act or refrain from acting in any other manner; (d) settle or compromise
any Liability or any security therefor, and may subordinate the payment of all or any part
thereof to the payment of any Liability (whether or not due) of Borrower to creditors of
Borrower other than Bank and the undersigned; and (e) apply any sums from any sources to
any Liability without regard to any Liabilities remaining unpaid.
4. No invalidity, irregularity or unenforceability of all or any part of the
Liabilities or of any security therefor shall affect, impair or be a defense to this guaranty,
and this guaranty is a primary and absolute obligation of the undersigned.
5. This guaranty is a continuing one and all Liabilities to which it applies
or may apply under the terms hereof shall be conclusively presumed to have been created
in reliance hereon. No purported notice by Guarantor of revocation or termination hereof
shall affect in any manner rights arising under this guaranty with respect to Liabilities that
shall have been created, contracted, assumed or incurred prior to receipt by Bank of
written notice of such revocation or termination, or Liabilities that shall have been
created, contracted for, assumed or incurred after receipt of such written notice pursuant
to any agreement entered into by Bank prior to receipt of such notice, and the sole effect
of such notice of revocation or termination "hereof shall be to exclude from this guaranty
Liabilities thereafter arising that are unconnected with Liabilities theretofore arising or
transactions theretofore entered into.
6. All notices provided to be given to Bank herein shall be sent by
registered or certified mail, return receipt requested, to the address shown in the preamble
to this guaranty agreement.
7. Any and all rights and claims of the undersigned against Borrower or
any of its property shall be subordinate and subject in right of payment to the prior
payment in full of all Liabilities to Bank.
8. The undersigned shall be in default hereunder upon: (a) non-payment
of any Liability when due; (b) failure of Borrower or the undersigned to petform any
agreement creating or otherwise affecting any Liability or any provision hereof, or to pay
in full, when due, any other obligation of Borrower or the undersigned; (c) the dissolution,
termination of existence, insolvency, or business failure of Borrower or the undersigned,
appointment of a receiver of any part of the property of any such party, assignment for the
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benefit of creditors by or the commencement of any proceedings in bankruptcy or
insolvency by or against Borrower or the undersigned; (d) the entry of a judgment against
Borrower not satisfied or transferred to bond within thirty (30) days; (e) the issuing of any
attachment or garnishment, or the filing of any lien against any property of Borrower; (f)
the merger, consolidation or reorganization of Borrower; (g) the determination by Bank that
any material, adverse change not otherwise approved in writing by Bank has occurred in the
financial condition of Borrower or the undersigned from the conditions set forth in the
financial statements of any such party heretofore furnished to Bank or from the condition
of such party as heretofore most recently disclosed to Bank in any manner; or (h) falsity
in any material respect of, or any material omission in, any representation or statement
made to Bank by or on behalf of Borrower or the undersigned in connection with any
Liability of such parties.
9. Upon the occurrence of any default hereunder, Bank shall have all of
the remedies of a creditor and, to the extent applicable, of a secured party, under all
applicable law. Without limiting the generality of the foregoing, Bank may at its option
and without notice or demand: (a) declare any Liability accelerated and due and payable
at once; and (b) take possession of any collateral securing any Liability wherever located,
and sell, resell, assign, transfer and deliver all or any part of said property of Borrower or
the undersigned, at any broker's board or exchange or at any public or private sale, for cash
or on credit or for future delivery, and in connection therewith Bank may grant options and J
may impose reasonable conditions such as requiring any purchaser of any stock so sold to
represent that such stock is purchased for investment purposes only, and, upon any such
sale, Bank, unless prohibited by law the provisions of which cannot be waived, may purchase
all or any part of said property to be sold, free from and discharge of all trusts, claims,
right of redemption and equities of the undersigned whatsoever.
10. The undersigned shall pay all costs of collection and reasonable
attorneys' fees, including reasonable attorneys' fees of any suit, out of court, in trial, on
appeal, in bankruptcy proceedings or otherwise, incurred or paid by Bank in enforcing the
payment of any Liability or enforcing or preserving any right or interest of Bank hereunder,
including the collection, sale or delivery of any collateral security from time to time
pledged hereunder, if any, and after deducting such fees, costs and expenses from the
proceeds of sale or collection, Bank may apply any residue to pay any of the Liabilities, and
the undersigned shall continue to be liable for any defiCiency with interest, which shall
remain a Liability.
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11. If claim is ever made upon Bank for repayment or recovery of any
amount or amounts received by Bank in payment or on account of any of the Liabilities,
and Bank repays all or part of said amount by reason of any judgment, decree or order of
any court or administrative body having jurisdiction over Bank or any of its property or any
settlement or compromise of any such claim effected by Bank with any such claimant
(including Borrower), then the undersigned agree that any such judgment, decree, order,
settlement or compromise shall be binding upon the undersigned, notwithstanding any
revocation hereof or the cancellation of any note or other instrument evidencing any
Liability, and the undersigned shall be and remain liable to Bank hereunder for the amount
so repaid or recovered to the same extent as if such amount had never originally been
received by Bank.
12. Any acknowledgement, new promise, payment of principal or interest,
or otherwise, whether by Borrower or others (including the undersigned), with respect to
any of the Liabilities shall, if the statute of limitations in favor of the undersigned against
Bank shall have commenced to run, toll the running of such statute of limitations and, if
the period of such statute of limitations shall have expired, prevent the operation of such
statute of limitations.
13. Bank shall not be bound to take any steps necessary to preserve any
rights in any of the property of the undersigned against prior parties who may be liable in
connection therewith, and the undersigned hereby agree to take any such steps. Bank may
nevertheless at anytime: (a) take any action it may deem appropriate for the care or
preservation of such property or of any rights of the undersigned or Bank therein; (b)
demand, sue for, collect or receive any money or property at any time due, payable or
receivable on account of or in exchange for any property of the undersigned; (c)
compromise and settle with any person liable on such property; or (d) extend the time of
payment or otherwise change the terms thereof as to any party liable thereon, all without
notice to, 'without incurring responsibility to, and without affecting any of the obligations
of the undersigned.
14. No delay on the part of Bank in exercising any of its options, powers
or rights, or partial or single exercise thereof, shall constitute a waiver thereof. No waiver
of any of its rights hereunder, and no modification or amendment of this guaranty, shall
be deemed to be made by Bank unless the same shall be in writing, duly signed on behalf
of Bank, and each such waiver, if any, shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of Bank or the obligations of the undersigned
to Bank in any other respect at any other time.
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15. Bank shall not be required to proceed first against Borrower, or any
other person, firm or corporation, whether primarily or secondarily liable, or against any
collateral security held by it, before resorting to the undersigned for payment, and the
undersigned shall not be entitled to assert as a defense to the enforceability of the
guaranty set forth herein any defense of Borrower with respect to any Liability other than
the defense that payment has been made, in whole or in part, if such is the case.
16. The term "undersigned" wherever used herein shall mean the
undersigned or anyone or more of them. Anyone executing this guaranty shall be bound
by the terms hereof without regard to execution by anyone else. This guaranty is binding
upon the undersigned, his, their or its executors, administrators, successors and assigns, and
shall inure to the benefit of Bank, its successors, endorsees or assigns.
17. This agreement has been delivered in the State of Florida and shall be
construed in accordance with the laws of Florida. Wherever possible, each provision of this
agreement shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions of this
agreement. To the extent permitted by applicable law, the undersigned hereby waive any
provision of law that renders any provision hereof prohibited or unenforceable in any
respect. Any litigation arising hereunder or related hereto shall be tried by the state
courts for the county or the federal court oT the United States federal district where the
branch office of Bank stated in the preamble hereto is located, whichever is applicable.
18. The following special provisions shall apply to this Guaranty. In the
event of any conflict between the body of the Guaranty and these special provisions, these
special provisions shall control.
A. Duration and Assignability of Guaranty, This Guaranty shall
remain in full force and effect so long as NCNB, or its successors or assigns, is the holder
of the underlying obligation guaranteed hereby. Notwithstanding the above language, the
City's Guaranty shall be limited to a total aggregate sum not to exceed One Million Dollars
($1,000,000.00) for the first nine (9) years from the date of the original promissory note.
Thereafter, so long as the underlying obligation is not in default, Guarantor's obligation
hereunder shall decrease annually by an amount equal to One Hundred Sixty-Six Thousand
Six Hundred Sixty-Six Dollars and 67/100 ($166,666.67), it being the intent of the parties
that Guarantor's guaranty hereunder shall decrease by $166,666.67 per year until the end
of the fifteenth year, whereupon Guarantor no longer shall be obligated.
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In the event that NCNB elects not to renew the loan at any
time prior to the end of the fifteenth year, in accordance with the Loan Documents,
Guarantor nevertheless covenants and agrees to guaranty the Foundation's loan with any
other state or federally chartered financial institution, reputable insurance company, or
credit union. The City's covenant shall be deemed to run in favor of both the Foundation
and NCNB. In the event the Foundation desires to borrow from an entity other than NCNB
and other than any other state or federally chartered financial institution, reputable
insurance company, or credit union, the City shall have the right, in its sole discretion, to
determine whether it desires to guaranty the Foundation's obligations to said entity.
B. Ground Lease Terms. Guarantor acknowledges that it is the
owner of certain real property subject to a ground lease in favor of Borrower, which
property is more particularly described in that certain Agreement dated November 12,
1985, which Agreement was amended on March 5,1987, February 16, 1988, November 20,
1989, and November 1, 1990 (the Agreement, as amended, shall hereafter be referred to
as the "Ground Lease"). The City understands that Borrower has delivered to Bank, as
additional security for repayment of the Loan, a Leasehold Mortgage and Security
Agreement of even date herewith. Although the City is not willing to subordinate its fee
simple interest in the Property to Bank, the City is willing to give Bank certain additional
rights, which rights currently may not exist under the terms of the Ground Lease. The City
understands that Bank would not extend financing to the Borrower in the absence of such
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additional consideration and these additional provisions are a necessary condition for the
loan from Bank to Borrower. These provisions shall remain in full force and effect so long
as this Guaranty is in effect.
1. Notwithstanding any language in the Ground Lease, the City
shall provide to Bank written notice of any default by Borrower under the Ground Lease.
In addition to any cure period contained in the Ground Lease, if any, Bank shall be entitled
to an additional thirty (30) days to cure any alleged defaults. In the event of a default
which, because of its nature, cannot be cured within the additional 3D-day period, but which
can be cured within a reasonable time, Bank shall be entitled to such additional time so
long as it is actively attempting to cure the default.
2. Notwithstanding any language in the Ground Lease, the Ground
Lease shall not be terminated based upon a default by Borrower without the prior written
consent of Bank.
3. Notwithstanding any language in the Ground Lease to the
contrary, in the event of a default under the Ground Lease by Borrower, Bank shall have
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the right to assume Borrower's rights and obligations under the Ground Lease and City
hereby approves Bank as a successor lessee under the Ground Lease. In such event, the
City's guaranty shall remain in full force and effect until fully satisfied.
4. The Ground Lease shall not be amended without the prior
written consent of Bank.
5. In the event that Bank assumes or otherwise acquires Borrower's
interest in the Ground Lease, through judicial foreclosure or otherwise, Bank shall be
entitled to any rental proceeds and all other revenues derived from the Property including,
but not limited to, greens fees, cart fees, professional golf lessons, and any rental income
from the portion of the Property currently operated as the PGA Family Golf Center.
6. Notwithstanding any language in the Ground Lease to the
contrary, Bank may appoint a receiver or trustee to operate the Property in the event that
Bank assumes or otherwise acquires Borrower's interest in the Ground Lease, (or is in the
process of assuming or acquiring Borrower's interest) through judicial foreclosure or
otherwise. Furthermore, upon the happening of such an event, Bank shall have the right
to assign its rights under the Ground Lease and this Guaranty pursuant to paragraph 18A
above.
7. In the event that the City terminates the Ground Lease for
"superior public purposes," as provided in paragraph 32 of the Ground Lease, and in addition
to any compensation which the City may owe to the Borrower, and notwithstanding any,
limitation otherwise contained herein, the- City shall fully satisfy the entire outstanding
debt owed to Bank by Borrower.
8. Through its execution of this Guaranty, and notwithstanding any
language in the Ground Lease to the contrary, the City hereby acknowledges and confirms
that Borrower has met all conditions imposed upon it by the City with respect to the
leasehold financing for which this Guaranty is given, including any and all construction and
equity contribution requirements, and that the City approves the use of Bank's loan
proceeds for the purposes set forth in Bank's commitment letter to Borrower dated
February 19, 1992. By its execution hereof, the City acknowledges and confirms that
Borrower is not in default under the Ground Lease and that Borrower has performed all
obligations currently due under the Ground Lease including, but not limited to, development
and construction of certain educational and rehabilitative facilities (with the exception of
the middle school, which shall be constructed with proceeds from the loan of even date
herewith), a supplementary PGA tour family golf center and driving range and all other
improvements required under the Ground Lease.
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9. Notwithstanding anything in this Guaranty to the contrary, the
City shall have thirty (30) days following written demand from bank to pay under this
Guaranty.
10. Notwithstanding anything in the Ground Lease to the contrary,
the City acknowledges and approves that a portion of the loan proceeds shall be used to
construct a middle school and entrance/driveway.
C. Limitations.
1. As set forth in subparagraph 18(A) above, the City's guaranty
shall be limited to One Million Dollars ($1,000,000.00). This figure shall include interest,
collection costs, attorneys' fees, etc. such that, regardless of what Borrower may owe, the
City's liability shall not exceed the sum of One Million Dollars; provided, however, that the
City shall be responsible for any costs of collection, including reasonable attorneys' fees
and costs, in the event it becomes necessary for NCNB to pursue collection efforts against
the City.
2. The obligations of the City hereunder shall not constitute a
general obligation or a pledge of the full faith and credit or the taxing power of the City
of Clearwater, or a lien upon any property owned by the City. Any obligation of the City
hereunder shall be a limited special obligation payable solely from funds of the City,
excluding ad valorem tax revenues, available for such payment under the annual operating
budget of the City in the fiscal year in which payment is to be made. No person shall have
the right to require or compel the levy by the City of ad valorem taxes on any property to
pay any obligation of the City hereunder. Nothing herein shall be deemed a covenant or
agreement of any officer, agent, or employee of the City in his or her individual capacity.
Dated: .Lj /, I q -:L--
GUARANTOR:
CITY OF CLEARWATER
By:t1{l~ .~
Michael wrighU
City manager
Attest: r, ..'A--L-~ Z-~. /J", D .
~lerk
Approved as to form and
correct s: /'
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This Guaranty is joined in by the Borrower to acknowledge and consent to the terms
of Guaranty, especially those terms contained in paragraph 18 which concern the Ground
Lease agreement between the Borrower and Guarantor.
CHI CHI RODRIGUEZ YO TH FOUNDATION,
INC. ? '-
By: It. ..-V2--
Its:
Attest: !:: &~<
Its: Sfflfi. 'aN
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[SEAL]
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