GUARANTY
Exhibit
10.12
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$4,450,000
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June
26, 2007
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WHEREAS,
XXXXX
XXXXXX I REAL ESTATE, LLC,
a
Florida limited liability company, having an address at 0000 Xxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000, (the “Borrower”),
has
requested from XXXXXXX
FUNDING, INC.,
a New
Jersey corporation, having its principal place of business at Two University
Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000 (“Agent”),
as
agent for lenders identified in Schedule
A
annexed
to the Note (as hereinafter defined) (Agent and Lenders identified in Schedule
A
are hereinafter collectively referred to as “Lender”),
a
loan in the principal sum of FOUR
MILLION FOUR HUNDRED FIFTY THOUSAND ($4,450,000) DOLLARS
(the
“Loan”),
which
Loan will be evidenced by a promissory note (the “Note”)
from
Borrower to Lender, and secured by, among other things, that certain Loan and
Security Agreement (the “Loan
Agreement”)
and
that certain Mortgage and Security Agreement (the “Mortgage”) from Borrower to
Lender, all of the foregoing being of even date herewith. All capitalized terms
used herein but not defined shall have the meaning ascribed to such terms in
the
Loan Agreement;
WHEREAS,
Xxxxxx is willing to make the Loan to Borrower only if, among other things,
the
undersigned (sometimes referred to herein, individually and collectively, as
the
“Guarantor”)
executes and delivers this Guaranty of Payment (“Guaranty”)
and
guarantees payment to Lender of the Debt (as hereinafter defined) in the manner
provided herein; and
WHEREAS,
the undersigned expects to derive benefit from the Loan.
NOW,
THEREFORE, in order to induce Lender to make the Loan to Borrower, the
undersigned hereby guarantees absolutely and unconditionally to Lender the
payment of the Debt and covenants and agrees with Xxxxxx as
follows:
1. Recitals.
The
recitals set forth above are incorporated herein by reference.
2. Guaranty
Clause.
The
Guarantor hereby absolutely, irrevocably and unconditionally guaranties to
Lender the full, prompt and unconditional payment of the Debt, when and as
the
same shall become due, whether at the stated maturity date, by acceleration
or
otherwise, and the full, prompt and unconditional performance of each and every
term and condition of every transaction to be kept and performed by Borrower
under the Note. This Guaranty is a primary obligation of Guarantor and shall
be
a continuing inexhaustible guaranty. Lender may require Guarantor to pay and
perform any or all of the Guarantor’s liabilities and obligations under this
Guaranty and may proceed immediately against Guarantor without being required
or
obligated to bring any proceeding or take any action against Borrower, any
other
guarantor or any other person, entity or property prior thereto. The liability
of each Guarantor hereunder is joint and several
with all other Guarantors and all other guarantors, and is independent of and
separate from the liability of Borrower, any other guarantor, person or entity,
and is independent of the availability of any collateral security for and/or
under any documents granting Lender security for the Loan.
1
(a) The
term
“Debt”
as
used
in this Guaranty shall mean the principal sum evidenced by the Note and secured
by the Mortgage, together with interest thereon at the rate of interest
specified in the Note and all other sums which may or shall become due and
payable pursuant to the provisions of the Note, Mortgage, Loan Agreement, or
any
other agreement, document or certificate executed and/or delivered by Borrower
to Lender in connection with the Loan, including any and all modifications,
amendments, and ratifications thereto (collectively the “Loan
Documents”).
(b) The
undersigned agrees that, upon demand, the undersigned will reimburse Lender,
to
the extent that such reimbursement is not made by Xxxxxxxx, for all expenses
(including reasonable counsel fees) incurred by Xxxxxx in connection with the
collection of the Debt or any portion thereof, including any expenses incurred
in any post-judgment proceedings to collect and enforce such judgment. This
provision is separate and several and shall survive the merger of this Guaranty
into any judgment on this Guaranty.
(c) All
moneys available to Lender for application in payment or reduction of the Debt
may be applied by Lender in such manner and in such amounts and at such time
or
times and in such order and priority as Lender may see fit to the payment or
reduction of such portion of the Debt or other obligations of Borrower as Lender
may elect.
(d) This
Guaranty is an absolute, continuing, unconditional and unlimited guaranty of
payment and not merely of collection and Lender shall be entitled to payment
from the undersigned without first commencing any action against Borrower or
resorting to any security or to any credit on the books of Lender in favor
of
Xxxxxxxx. The undersigned acknowledges and agrees that this Guaranty and any
or
all other guaranties made to Lender in connection with this Loan are joint
and
several guaranties.
2
3. Lender’s
Rights.
The
undersigned hereby consents that from time to time, before or after any default
by Borrower, with or without further notice to or assent from the undersigned,
(i) any security at any time held by or available to Lender for any obligation
of Borrower, (ii) any security at any time held by or available to Lender
for
any obligation of any other person or party secondarily or otherwise liable
for
all or any portion of the Debt, and/or (iii) any obligation arising under
any
other guaranty to Lender made in connection with the Loan, may be exchanged,
surrendered or released and any obligation of Borrower may be changed, altered,
renewed, extended, continued, surrendered, compromised, waived or released
in
whole or in part, or any default with respect thereto waived, and Lender
may
fail to set off and may release, in whole or in part,
any
balance of any credit on its books in favor of Xxxxxxxx, and may extend further
credit in any manner whatsoever to Borrower, and generally deal with Borrower
or
any such security or obligation and the undersigned shall remain bound under
this Guaranty notwithstanding any such exchange, surrender, release, change,
alteration, renewal, extension, continuance, compromise, waiver, inaction,
extension of further credit or other dealing. No invalidity, irregularity
or
unenforceability of all or any part of the Debt or the impairment or loss
of
security or obligation therefor, whether caused by any action or inactions
of
Lender or otherwise, shall affect or impair this Guaranty.
4. Guarantor
Waivers.
The
undersigned hereby waives and agrees not to assert or take advantage of any
defense based upon:
(a) Notice
of
acceptance of this Guaranty and of the making of the Loan by Xxxxxx to
Borrower;
(b) Presentment
and demand for payment of the Debt or any portion thereof;
(c) Protest
and notice of dishonor or default to the undersigned with respect to the Debt
or
any portion thereof;
(d) Notice
of
intent to accelerate, notice of acceleration and all other notices to which
the
undersigned might otherwise be entitled;
(e) Any
demand for payment under this Guaranty;
(f) The
incapacity, lack of authority, death or disability of Borrower or any other
person or entity;
(g) The
failure of Lender to commence an action against Xxxxxxxx and/or Guarantor or
to
proceed against or exhaust any security held by Xxxxxx at any time, or to pursue
any other remedy whatsoever at any time;
(h) Any
duty
on the part of Lender to disclose to the undersigned any facts Lender may now
or
hereafter know regarding Borrower, regardless of whether Xxxxxx has reason
to
believe (i) that any such facts materially increase the risk beyond that which
the undersigned intends to assume, or (ii) that such facts are unknown to the
undersigned, the undersigned acknowledging that he, she or it is fully
responsible for being and keeping informed of the financial condition and
affairs of Borrower;
3
(i) Lack
of
notice of default, demand of performance or notice of acceleration to Borrower
or any other party with respect to the Loan or Borrower’s obligations guaranteed
hereby;
(j) The
consideration for this Guaranty (or lack or inadequacy thereof);
(k) Any
acts
or omissions of Lender which vary, increase or decrease the risk on the
undersigned;
(l) Any
rights or defenses based upon an offset by the undersigned against any
obligation now or hereafter owed to the undersigned by Borrower;
(m) Any
statute of limitations affecting the liability of the undersigned hereunder,
the
liability of Borrower or Guarantor under the Loan Documents or the enforcement
hereof, to the extent permitted by law;
(n) The
application by Borrower of the proceeds of the Loan for purposes other than
the
purposes represented by Borrower to Lender and the undersigned or intended
or
understood by Xxxxxx or the undersigned;
(o) An
election of remedies by Xxxxxx, including any election to proceed against any
collateral by judicial or nonjudicial foreclosure, whether real property or
personal property, or by deed in lieu thereof, and whether or not every aspect
of any foreclosure sale is commercially reasonable, and whether or not any
such
election of remedies destroys or otherwise impairs the subrogation rights of
the
undersigned or the rights of the undersigned to proceed against Borrower or
any
guarantor by way of subrogation or for reimbursement or contribution, or all
such rights;
(p) Any
statute or rule of law which provides that the obligation of a surety must
be
neither larger in amount nor in any other aspects more burdensome than that
of
the principal obligor;
(q) Xxxxxx’s
election, in any proceeding instituted under Title 11 of the United States
Code
(the “Bankruptcy
Code”),
of
the application of Section 1111(b)(2) of the Bankruptcy Code or any successor
statute; and
(r) Any
borrowing or any grant of a security interest under Section 364 of the
Bankruptcy Code.
THIS
IS
AN UNCONDITIONAL AND IRREVOCABLE WAIVER OF ANY RIGHTS AND DEFENSES THE
UNDERSIGNED MAY HAVE BECAUSE XXXXXXXX’S DEBT IS SECURED BY INTERESTS IN REAL
PROPERTY.
5. Collection
and Enforcement.
(a) LENDER
MAY COLLECT FROM THE UNDERSIGNED WITHOUT FIRST FORECLOSING ON ANY REAL OR
PERSONAL PROPERTY COLLATERAL PLEDGED BY BORROWER; AND
4
(b) IF
LENDER
FORECLOSES ON ANY REAL PROPERTY COLLATERAL PLEDGED BY BORROWER:
i. THE
AMOUNT OF THE DEBT MAY BE REDUCED ONLY BY THE PRICE FOR WHICH THAT COLLATERAL
IS
SOLD AT A FORECLOSURE SALE, EVEN IF THE COLLATERAL IS WORTH MORE THAN THE SALE
PRICE; AND
ii. XXXXXX
MAY COLLECT FROM THE UNDERSIGNED EVEN IF LENDER, BY FORECLOSING ON THE REAL
PROPERTY COLLATERAL, HAS DESTROYED ANY RIGHT THE UNDERSIGNED MAY HAVE TO COLLECT
FROM BORROWER.
6. Successors
and Assigns.
Each
reference herein to Lender shall be deemed to include its successors and
assigns, in whose favor the provisions of this Guaranty shall also inure. Each
reference herein to the undersigned shall be deemed to include the heirs,
executors, administrators, legal representatives, successors and assigns of
the
undersigned, all of whom shall be bound by the provisions of this
Guaranty.
7. Limitation.
Notwithstanding anything herein to the contrary, the obligation of Xxxxxxx
X.
Xxxxxx shall be limited to any deficiency that exists upon liquidation of any
real or personal property collateral and exercise of all rights against
Borrower, American Leisure Holdings, Inc. and TDS Amenities, Inc., provided,
however, that the Borrower and/or Guarantor, their agents, servants and/or
employees take no action to hinder, frustrate or delay the Lender in its efforts
to enforce any right to collect the outstanding Debt from any of the real or
personal property pledged as collateral for the Loan in the event of default
by
the Borrower, except that the Borrower shall have the right to contest a
non-monetary default.
8. No
Waiver.
No
delay on the part of Lender in exercising any rights hereunder or failure to
exercise the same shall operate as a waiver of such rights; no notice to or
demand on the undersigned shall be deemed to be a waiver of the obligation
of
the undersigned or of the right of Lender to take further action without notice
or demand as provided herein; nor in any event shall any modification or waiver
of the provisions of this Guaranty be effective unless in writing nor shall
any
such waiver be applicable except in the specific instance for which such waiver
is given.
9. Representations
and Warranties.
To
further induce Lender to make the Loan to Borrower, the Guarantor makes the
following warranties and representations, with the knowledge that Lender will
rely on the veracity thereof:
5
(a) The
execution and delivery by the Guarantor of this Guaranty and any other document
executed and/or delivered by the Guarantor to Lender in connection therewith
(collectively, the “Guaranty
Documents”),
and
the performance of the obligations thereunder, do not and will not: (a) violate
any provision of law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to
the
Guarantor; or (b) result in any breach of or constituteany
default under any indenture or loan or credit agreement or any other agreement,
lease or instrument to which the Guarantor is a party or by which the Guarantor
or his/her/their/its properties may be bound or affected, and the Guarantor
is
not in default under any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or any such indenture, agreement,
lease or instrument.
(b) There
is
no material action, suit, proceeding, inquiry or investigation, at law or in
equity, or before any court, governmental instrumentality, public board or
arbitrator pending or threatened against or affecting the Guarantor or any
of
his properties or rights, wherein an unfavorable decision, ruling or finding
would (i) to the extent not covered by insurance as to which the insurer has
not
disclaimed coverage, result in any material adverse change in the financial
condition, business, properties or operations of the Guarantor; (ii) materially
or adversely effect the Guaranty; or (iii) adversely effect the validly or
enforceability of the Guaranty Documents.
(c) The
Guarantor is in compliance with all applicable laws.
(d) Borrower
is a pre-existing entity actively engaged in the operation of its business
and
has not been created as a vehicle to obtain the Loan. The proceeds of the Loan
will be used by Borrower solely to (a) discharge or release liens upon the
real
property encumbered by the Mortgage (the “Property”)
or for
other business purposes directly related to the Property, and (b) pay fees
and
other amounts related thereto or to the making of the Loan, and the proceeds
of
the Loan will not be paid over or diverted by Borrower to any member, officer,
director or shareholder of Borrower, the Guarantor, any other guarantors of
the
Loan or any other person.
(e) On
the
date hereof, (i) the assets of the Guarantor exceed his liabilities, and (b)
the
Guarantor is paying his debts as they become due.
10. No
Subrogation.
Notwithstanding any payments made by the undersigned pursuant to the provision
of this Guaranty, the undersigned shall have no right of subrogation in and
to
the Note, or any other security held by or available to Lender for the Debt
or
the payment thereof until the Debt has been paid in full to Lender.
11. Limitation
of Remedies.
The
Guarantor is hereby prohibited from exercising against Lender or Agent any
right
or remedy which it might otherwise be entitled to exercise against any one
or
more (but less than all) of the individual parties constituting Lender,
including, without limitation, any right of set-off or any defense.
12. Miscellaneous.
6
(a) Governing
Law.
This
Guaranty is, and shall be deemed to be, a contract entered into under and
pursuant to the laws of the State of New Jersey and shall be in all respects
governed, construed, applied and enforced in accordance with the
lawsof
said
state without regard to conflicts of laws considerations; and this Guaranty
shall be construed without regard to any presumption or rule requiring
construction against the party causing such instrument or any portion thereof
to
be drafted; and no defense given or allowed by the laws of any other state
or
country shall be interposed in any action or proceeding hereon unless such
defense is also given or allowed by the laws of the State of New Jersey.
The
undersigned agrees to submit to personal jurisdiction in the State of New
Jersey
in any action or proceeding arising out of this Guaranty and, in furtherance
of
such agreement, the undersigned hereby agrees and consents that without limiting
other methods of obtaining jurisdiction, personal jurisdiction over the
undersigned in any such action or proceeding may be obtained within or without
the jurisdiction of any court located in New Jersey and that any process
or
notice of motion or other application to any such court in connection with
any
such action or proceeding may be served upon the undersigned by registered
mail
to or by personal service at the last known address of the undersigned, whether
such address be within or without the jurisdiction of any such
court.
(b) Waivers.
The
Guarantor hereby waives any claim, right or remedy which the Guarantor may
now
have or hereafter acquire against Borrower that arises hereunder and/or from
the
performance by the Guarantor hereunder, including, without limitation, any
claim, remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right or remedy of Lender
against Borrower or any security which Lender now has or hereafter acquires,
whether or not such claim, right or remedy arises in equity, under contract,
by
statute, under common law or otherwise. The foregoing waiver by the Guarantor
shall terminate and be of no further force or effect at such time as the entire
Debt has been fully and indefeasibly paid to and received by
Lender.
(c) Severability.
A
determination that any portion of this Guaranty is unenforceable or invalid
shall not affect the enforceability or validity of any other provision, and
any
determination that the application of any provision of this Guaranty to any
circumstance is illegal or unenforceable shall not affect the enforceability
or
validity of such provision as it may apply to other circumstances.
(d) Notices.
All
notices, consents, approvals and requests required or permitted hereunder or
under any other Loan Document shall be given in writing and shall be effective
for all purposes if hand delivered or sent by (a) certified or registered United
States mail, postage prepaid, return receipt requested or (b) expedited prepaid
delivery service, either commercial or United States Postal Service, with proof
of attempted delivery, and by telecopier (with answer back acknowledged),
addressed as follows (or at such other address and a person as shall be
designated from time to time by any party hereto, as the case may be, in a
written notice to the other parties hereto in the manner provided for in this
Section):
7
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If
to Lender:
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Xxxxxxx
Funding, Inc.
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Two
University Plaza, Suite 402
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Hackensack,
New Jersey 07601
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Attention:
Xxxxxxx Xxxxxx
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Facsimile
No. (000) 000-0000
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With
a copy to:
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Xxxx,
Xxxxxx, Xxxxxx, Xxxxxx & Xxxxxxx P.A.
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00
Xxxx Xxxxxx
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Hackensack,
New Jersey 07602-0800
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Attention:
Xxxxxxx X. Xxxxxxxx, Esq.
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Facsimile
No.: (000) 000-0000
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If
to Guarantor:
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0000
Xxxx Xxxx Xxxx Xxxxxxx, Xxxxxxx
00000
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Xxxxxxx
Xxxxxx
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xxxx
xxxx xxxxx xxxxxxx xxxx xxxxx
xxxxxx,
xxxxxxx xxxxx
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TDS
Amenities, Inc.
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0000
Xxxx Xxxx Xxxx
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Orlando,
Florida 32809
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With
a copy to:
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Xxxxx
X. Xxxxxxxx, Esq.
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0000
Xxxx Xxxx Xxxx
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Orlando,
Florida 32809
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Facsimile
No.: (000) 000-0000
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With
a copy to:
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Xxxxxx
X. Xxxxx, Esq.
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Xxxxxx
X. Xxxxx, P.A.
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00
X. Xxxx Xxxxxx
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Orlando,
Florida 32801
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Facsimile
No.: (000) 000-0000
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A
notice
shall be deemed to have been given: in the case of hand delivery, at the time
of
delivery; in the case of registered or certified mail, when delivered or the
first attempted delivery on a business day; or in the case of expedited prepaid
delivery and telecopy, upon the first attempted delivery on a business
day.
8
(e) Jury
Trial Waiver.
THE
UNDERSIGNED AGREES THAT ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR
COUNTERCLAIM, BROUGHT BY THE UNDERSIGNED OR LENDER ON OR WITH RESPECT
TOTHIS
GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE PARTIES WITH RESPECT
HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. XXXXXX
AND
THE UNDERSIGNED EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY
RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER, THE
UNDERSIGNED WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT,
ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE UNDERSIGNED
ACKNOWLEDGES AND AGREES THAT THIS PARAGRAPH IS A SPECIFIC AND MATERIAL ASPECT
OF
THIS GUARANTY AND THAT XXXXXX WOULD NOT EXTEND CREDIT TO BORROWER IF THE WAIVERS
SET FORTH IN THIS PARAGRAPH WERE NOT A PART OF THIS GUARANTY.
[Remainder
of this page intentionally left blank.]
9
IN
WITNESS WHEREOF, the undersigned has executed this Guaranty as of the date
first
above set forth.
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WITNESS:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
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GUARANTOR:
/s/
Xxxxxxx X. Xxxxxx
XXXXXXX
X. XXXXXX
Residence
Address:
xxxx
xxxx xxxxx xxxxxxx xxxx xxxxx
xxxxxx,
xxxxxxx xxxxx
Social
Security Number: xxx-xx-xxxx
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WITNESS:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
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GUARANTOR:
AMERICAN
LEISURE HOLDINGS, INC.
a
Nevada corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Chief Executive Officer
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WITNESS:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
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GUARANTOR:
TDS
AMENITIES, INC.
a
Florida corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Chief Executive Officer
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10
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STATE
OF FLORIDA
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)
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)
ss.:
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COUNTY
OF ORANGE
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)
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I
certify
that on June 20th, 2007, Xxxxxxx X. Xxxxxx came before me in person and
stated to my satisfaction that he/she:
(a)
made
the
attached instrument; and
(b)
was
authorized to and did execute this instrument on behalf of and as Chief
Executive Officer of AMERICAN LEISURE HOLDINGS, INC., a Nevada corporation
(the
“Company”), the entity named in this instrument, as the free act and deed of the
Company, by virtue of the authority granted by its bylaws and its board of
directors.
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/s/ X.X. Xxxxxx
NOTARY PUBLIC
#DD459074
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STATE
OF FLORIDA
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)
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|
)
ss.:
|
|
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COUNTY
OF ORANGE
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)
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On
the 20th day of June, 2007, before me personally came Xxxxxxx X.
Xxxxxx, who being by me duly sworn, did depose and say that he signed, sealed
and delivered this instrument as his voluntary act and deed.
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/s/ X.X. Xxxxxx
NOTARY PUBLIC
#DD459074
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11
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STATE
OF FLORIDA
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)
|
|
)
ss.:
|
|
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COUNTY
OF ORANGE
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)
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I
certify
that on June 20th, 2007, Xxxxxxx X. Xxxxxx came before me in person and
stated to my satisfaction that he/she:
(a) made
the
attached instrument; and
(b) was
authorized to and did execute this instrument on behalf of and as Chief
Executive Officer of TDS AMENITIES, INC., a Florida corporation (the “Company”),
the entity named in this instrument, as the free act and deed of the Company,
by
virtue of the authority granted by its bylaws and its board of
directors.
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/s/ X.X. Xxxxxx
NOTARY PUBLIC
#DD459074
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12
