AMENDED AND RESTATED GUARANTY AGREEMENT
Exhibit
10.54
AMENDED AND RESTATED GUARANTY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AGREEMENT (this “Guaranty”)
is made as of the day of December 2006, by XXXXXXXX
HOMEBUILDING COMPANIES, INC., a Delaware corporation (the “ Guarantor”) in favor of BANK
OF AMERICA, N.A., a national banking association (the “Lender”), and its successors and
assigns.
RECITALS:
WHEREAS, pursuant to the terms of that certain Revolving Master Loan Agreement dated
as of January 16, 2004, by and between Lender and Xxxxxx Xxxxxxxx Homes, Inc., a Georgia
corporation (“PC, Inc.”) (as the same may be amended, renewed, supplemented or restated
from time to time, the “Loan Agreement”), Lender made a loan (the “Loan”) to PC, Inc. in
the original maximum principal amount of Seven Million Five Hundred Thousand and No/100
Dollars ($7,500,000.00), as evidenced by that certain Real Estate Note dated January 16,
2004 made by PC, inc. payable to the order of Lender (as the same may be amended, renewed,
supplemented or restated from time to time, the “Note”); and
WHEREAS, pursuant to the terms of the Loan Agreement, the Loan is comprised of (i) a
revolving construction loan in the maximum principal amount of Five Million Five Hundred
and No/100 Dollars ($5,500,000.00) (the “Revolving Facility”) and (ii) a lot acquisition
loan in the maximum principal amount of Two Million and No/100 Dollars ($2,000,000.00)
(the “Acquisition Facility”).
WHEREAS, pursuant to the terms of a certain modification to the Loan dated February
16, 2005, the principal amount of the Loan was increased to a maximum principal amount of
Ten Million and No/100 Dollars ($10,000,000.00) whereby the Revolving Facility was
increased to a maximum principal amount of Eight Million and No/100 Dollars ($8,000,000.00)
and the maximum principal amount of the Acquisition Facility remained Two Million and
No/100 Dollars ($2,000,000.00).
WHEREAS, pursuant to the terms of a certain Amendment to Promissory Note and Other
Loan Documents dated July 1, 2005, by and between PC, Inc., Xxxxxx-Xxxxxxxx Homes South
Carolina, LLC, a South Carolina limited liability company (“PC South”) and Lender, PC
South was added as a Borrower under the Loan.
WHEREAS, PC, Inc. is now known as Xxxxxxxx Homes of Atlanta, LLC, a Georgia limited
liability company (“Xxxxxxxx Atlanta”) and PC South is now known as Xxxxxxxx Homes of
Myrtle Beach, LLC (“Myrtle”) (Xxxxxxxx Atlanta, PC, Inc., PC South and Myrtle are
hereinafter collectively referred to as “Borrower”).
WHEREAS, Borrower’s obligations under the Note are secured by, among other things, a
Deed to Secure Debt and Security Agreement dated as of January 16, 2004, from Borrower for
the benefit of Lender, and originally recorded among the land records of Xxxxxxx County,
Georgia in the Superior Court of Xxxxxxx County, Georgia on February 4, 2004 in Deed Book
331 Page 369 (as the same may be amended, renewed, supplemented or restated from time to
time and as the same, as amended, has been subsequently recorded in the land records of
Xxxxxxx County, the “Deed to Secure”), covering certain real property and
improvements
thereon located in Xxxxxxx County Georgia and Paulding County, Georgia and
more
particularly described therein and on Exhibit A attached hereto (collectively, the
“Property”); and
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WHEREAS, Borrower’s Obligations under the Note are guaranteed by Guarantor pursuant
to a Guaranty Agreement dated February 10, 2006 (the “Original Guaranty”) which guarantees
the Loan together with certain other Loans made by Lender (the “Other Guaranteed Loans”);
and
WHEREAS, at the request of the Borrower, the Lender has agreed to modify the Loan to
(i) extend the Maturity Date of the Loan; (ii) modify the maximum principal amount of the
Loan; and (iii) make certain other changes to the Loan Documents as set forth herein (the
“Modification”),
WHEREAS, in consideration of Lender entering into the Modification, and because some
of Other Guaranteed Loans have been satisfied in full, the Guarantor has agreed to execute
a new Guaranty Agreement simultaneously with the execution of the Modification.
WHEREAS,
it is intended that this Guaranty extend to the Loan and all other amounts
owing under any of the Loan Documents, without any need for any notice to the Guarantor of
the making of advances under the Loan and without any need for any supplements or
amendments to this Guaranty or any other documentation to be executed by the Guarantor; and
WHEREAS, unless otherwise defined herein, all capitalized terms used herein shall
have the meanings assigned to them in the Loan Agreement.
WITNESSETH:
For good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and as a material inducement to the Lender to enter into the Modification
with the Borrower, the Guarantor hereby amends and restates the Original Guaranty as
follows:
1. Guaranty of Payment. The Guarantor hereby unconditionally and
irrevocably
guarantees to the Lender the punctual payment when due, whether by scheduled payment date,
upon maturity, lapse of time, by acceleration of maturity, or otherwise, and at all times
thereafter, of all principal, interest (including interest accruing after the commencement
of any bankruptcy or insolvency proceeding by or against the Borrower, whether or not
allowed in such proceeding), fees, late charges, costs, expenses, indemnification
indebtedness (including, without limitation, indemnification for environmental matters),
and other sums of money now or hereafter due and owing pursuant to (a) the terms of the
Note, the Loan Agreement, the Deed to Secure and any and all other Loan Documents, now or
hereafter existing, and specifically including any and ail advances made by the Lender
under the Loan Documents from sources other than the Loan, and interest on such advances,
and (b) all renewals, extensions, increases, refinancing, modifications, supplements or
amendments to such indebtedness, or any of the Loan Documents, or any part thereof (such
indebtedness being hereinafter collectively called the “Indebtedness”). This Guaranty
covers all amounts outstanding under the Loan (the “Indebtedness”), whether presently
outstanding or arising subsequent to the date hereof, whether or not presently
contemplated by the Guarantor, the Borrower or the Lender,
and whether or not the same shall be incurred after satisfaction, payment or reduction of
any previous indebtedness, including all amounts advanced and/or readvanced by the Lender
in stages or installments. The guaranty of the Guarantor as set forth in this Section is
a continuing guaranty of payment and not a guaranty of collection.
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2. Guaranty
of Performance. The Guarantor additionally hereby unconditionally
and irrevocably guarantees to the Lender the timely performance of all other obligations
of the Borrower under all of the Loan Documents, including without limitation, completion
of the improvements and compliance with all covenants regarding environmental matters.
3. Primary Liability of the Guarantor. This Guaranty is an absolute,
irrevocable and unconditional guaranty of payment and performance. The Guarantor shall be
liable for the payment and performance of the Obligations, as set forth in this Guaranty,
as a primary obligor. This Guaranty shall be effective as a waiver of, and the Guarantor
hereby expressly waives any and all rights to which the Guarantor may otherwise have been
entitled under any suretyship laws in effect from time to time, including any right or
privilege, whether existing under statute, at law or in equity, to require the Lender to
take prior recourse or proceedings against any collateral, security or Person (hereinafter
defined) whatsoever. Upon the occurrence of: (i) any Default under the Loan, (ii) any
reasonable determination by the Lender that a material adverse change has occurred in the
financial condition of the Guarantor, (iii) the dissolution or insolvency of Guarantor,
subject to the provisions of Section 4 below, or (iv) any transfer of assets of Guarantor
without receiving fair value in exchange therefor, the Indebtedness shall be deemed
immediately due and payable at the election of the Lender, and the Guarantor shall, on
demand and without presentment, protest, any notice whatsoever, pay the amount due thereon
to the Lender or perform or observe the agreement, covenant, term or condition, as the
case may be, and it shall not be necessary for the Lender, in order to enforce such
payment or performance by Guarantor, first to institute suit or pursue or exhaust any
rights or remedies against the Borrower or others liable on the Obligations or for such
performance, or to institute suit or pursue or exhaust any rights or remedies against the
Borrower or Guarantor or other sureties of the Obligations as contemplated by applicable
law or to enforce any rights against any security that shall ever have been given to
secure the Obligations, or to join the Borrower or any others liable for the payment or
performance of the Obligations or any part thereof in any action to enforce this Guaranty,
or to resort to any other means of obtaining payment or performance of the Obligations.
The term “Person” as used herein shall mean all of the Borrower and the Guarantor.
4. Representations, Warranties, and Covenants of the Guarantor. Guarantor
hereby represents, warrants, and covenants that: (a) Guarantor will derive substantial
benefit, directly or indirectly, from Lender entering into the Modification with the
Borrower and from the making of this Guaranty by the Guarantor; (b) this Guaranty is duly
authorized and valid, and is binding upon and enforceable against the Guarantor; (c) the
Guarantor is not, and the execution, delivery and performance by the Guarantor of this
Guaranty will not cause the Guarantor to be, in violation of or in default with respect to
any law; (d) Guarantor is a duly organized, validly existing corporation in good standing
under the state of Delaware, is lawfully doing business in the jurisdiction where it
operates, and has full power and authority to enter into and perform this Guaranty; (e)
except as may have been disclosed in public filings, there is not now pending against or
affecting the Guarantor, nor, to the knowledge of the Guarantor, is there threatened, any
action, investigation, suit or proceeding by or before any administrative agency which
if adversely determined would materially impair or affect the Guarantor’s financial
condition
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(f) all financial statements and information heretofore furnished to the
Lender by the Guarantor do, and all financial statements and information hereafter furnished
to the Lender by the Guarantor will, fully and accurately present the financial condition of
the Guarantor as of
their dates and the results of the Guarantor’s operations for the periods therein specified, and,
since the date of the most recent financial statements of the Guarantor heretofore furnished to the
Lender, except as heretofore disclosed in public filings, the Guarantor has not incurred any
material liability, direct or indirect, fixed or contingent; (g) after giving effect to this
Guaranty, the Guarantor is solvent, is not engaged or about to engage in business or a transaction
for which the property of the Guarantor is an unreasonably small capital, and does not intend to
incur or believes that it will incur debts that will be beyond its ability to pay as such debts
mature; (h) the Lender has no duty at any time to investigate or inform the Guarantor of the
financial or business condition or affairs of the Borrower or any change therein, and the Guarantor
will keep fully appraised of the Borrower’s financial and business condition; (i) the Guarantor
acknowledges and agrees that the Guarantor may be required to pay and perform the Obligations in
full without assistance or support from the Borrower or any other Person; and (j) the Guarantor has
read and fully understand the provisions contained in the Loan Agreement, the Deed to Secure, and
the other Loan Documents, each of which may be modified, extended, supplemented or extended from
time to time without notice to or consent from the Guarantor and without affecting the obligations
of the Guarantor under this Guaranty.
The Guarantor’s representations, warranties and covenants are a material inducement to the
Lender to enter into the other Loan Documents and shall survive the execution hereof and any
bankruptcy, foreclosure, transfer of security or other event affecting the Borrower, the
Guarantor, any other party, or any security for all or any part of the Obligations.
5. Financial information. The Guarantor shall furnish or cause to be furnished to
the Lender upon request any financial statements for Guarantor and any entity related to the
Guarantor containing such information and in such form as Lender may from time to time reasonably
determine, provided the obligations of the Guarantor hereunder have not already terminated.
Without limiting the generality of the foregoing, the Guarantor shall furnish to the Lender
financial statements as follows:
(a) as soon as available, but in no event later than ninety (90) days after the close of its
fiscal year (but in no event earlier than the date such financial statements must be submitted to
governmental authorities), financial statements (all of which financial statements may include, as
requested by the Lender, a balance sheet, income statement, sources and uses of funds for such
fiscal and/or calendar year, projected sources and uses of funds for the coming year, detailed
listing and description of all contingent liabilities, tax returns, written verification of
liquidity and such other supporting schedules and documentation which the Lender may request). All
such financial statements shall be audited by a certified public accountant acceptable to the
Lender in all respects; and
(b) if requested by the Lender, within forty-five (45) days after the close of its quarterly
business period (but in no event earlier than the date such financial statements must be submitted
to governmental authorities), the financial statements to be filed with applicable governmental
authorities.
6. Certain Agreements and Waivers by the Guarantor.
(a) The Guarantor hereby agrees that neither the Lender’s rights or remedies nor the
Obligations shall be released, diminished, impaired, reduced or affected by any one or more of the
following events, actions, facts, or circumstances, and the liability of the Guarantor under this
Guaranty shall be absolute and unconditional irrespective of:
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(i) any limitation of liability or recourse in any other Loan Document or
arising under any law;
(ii) any claim or defense that this Guaranty was made without consideration
or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty for, or right
of recourse with respect to, any or all of the Obligations;
(iv) any homestead exemption or other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration, sale or other
disposition, subordination, deterioration, waste, failure to protect or preserve,
impairment, or loss of, or any failure to create or perfect any lien or security
interest with respect to, or any other dealings with, any collateral or security
at any time existing or purported, believed or expected to exist in connection
with any or all of the Obligations, including any impairment of the Guarantor’s
recourse against any Person or collateral;
(vi) whether express or by any operation of law, any full or partial release
of the liability of the Guarantor, the Borrower or any other party hereunder or
under any of the other Loan Documents;
(vii) the death, insolvency, bankruptcy, disability, dissolution,
liquidation, termination, receivership, reorganization, merger, consolidation,
change of form, structure or ownership, sale of all assets, or lack of corporate,
partnership or other power of the Borrower, the Guarantor or any other party at
any time liable for the
payment or performance of any or all of the Obligations;
(viii) either with or without notice to or consent of the Guarantor, any
renewal, extension, modification or rearrangement of the terms of any or all of the
Obligations and/or any of the Loan Documents, including, without limitation,
material alterations of the terms of payment (including changes in maturity
date(s), interest rate(s) and amortization) or performance or any other terms
thereof, or any waiver, termination, or release of, or consent to departure from,
any of the Loan Documents or any other guaranty of any or all of the Obligations,
or any adjustment, indulgence, forbearance, or compromise that may be granted from
time to time by the Lender to the Borrower, the Guarantor, and/or any other Person
at any time liable for the payment or performance of any or all of the Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or refusal of
the Lender to take or prosecute (or in taking or prosecuting) any action for the
collection or enforcement of any of the Obligations, or to foreclose or take or
prosecute any action to foreclose (or in foreclosing or taking or prosecuting any
action to foreclose) upon any security therefor, or to exercise (or in exercising)
any other right or power with respect to any security therefor, or to take or
prosecute (or in taking or prosecuting) any action in connection with any Loan
Document, or any failure to sell or otherwise dispose of in a commercially
reasonable manner any collateral securing any or all of the Obligations;
(x) any failure of the Lender to notify the Guarantor of any creation,
renewal, extension, rearrangement, modification, supplement, subordination, or
assignment of the Obligations or any part thereof, or of any Loan Document, or of
any release of or change in any security, or of any other action taken or refrained
from being taken by the
Lender against the Borrower or any security or other recourse, or of any new
agreement between the Lender and the Borrower, it being understood that the Lender
shall not be required to give the Guarantor any notice of any kind under any
circumstances with respect to or in connection with the Obligations,
any and all
rights to notice that the Guarantor may have otherwise had being hereby waived by
the Guarantor;
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(xi) any refund of any payment by the Borrower or any other party liable for
the payment or performance of any or all of the Obligations;
(xii) the existence of any claim, set-off, or other right that the Guarantor
may at any time have against the Borrower, the Lender (other than pursuant to a
final judgment), or any other Person, whether or not arising in connection with
this Guaranty or any other Loan Document;
(xiii) the unenforceability of all or any part of the Obligations against the
Borrower, whether because the Obligations exceed the amount permitted by law or
violate any usury law, or because the act of creating the Obligations, or any part
thereof, is beyond the scope of powers granted, or because the officers or Persons
creating same acted in excess of their authority, or because of a lack of validity
or enforceability of or defect or deficiency in any of the Loan Documents, or
because the Borrower has any valid defense, claim or offset with respect thereto,
or because the Borrower’s obligation ceases to exist by operation of law, or
because of any other reason or circumstance, it being agreed that the Guarantor
shall remain liable hereunder regardless of whether the Borrower or any other
Person are found not liable on the Obligations, or any part thereof, for any reason
(and regardless of any joinder of the Borrower or any other party in any action to
obtain payment or performance of any or all of the Obligations);
(xiv) any order, ruling or plan of reorganization emanating from proceedings
under Title 11 of the United States Code with respect to the Borrower or any other
Person, including any extension, reduction, composition, or other alteration of the
Obligations, whether or not consented to by the Lender; or
(xv) any failure to notify the Guarantor of, or obtain the Guarantor’s consent
to, the making of the Loan or any advances thereunder.
(b) In the event that any payment by the Borrower or any other Person to the Lender
is held to constitute a preference, fraudulent transfer or other voidable payment under
any bankruptcy, insolvency or similar law, or if for any other reason the Lender is
required to refund such payment or pay the amount thereof to any other party, such payment
by the Borrower or any other party to the Lender shall not constitute a release of the
Guarantor from any liability hereunder, and this Guaranty shall continue to be effective
or shall be reinstated (notwithstanding any prior release, surrender or discharge by the
Lender of this Guaranty or of the Guarantor), as the case may be, with respect to, and
this Guaranty shall apply to, any and all amounts so refunded by the Lender or paid by the
Lender to another Person (which amounts shall constitute part of the Obligations), and any
interest paid by the Lender and any reasonable attorneys’ fees, costs and expenses paid or
incurred by the Lender in connection with any such event. It is the intent of the
Guarantor and the Lender that the obligations and liabilities of the Guarantor hereunder
are absolute and unconditional under any and all circumstances and that until the
Obligations are fully and finally paid and performed, and not subject to refund or
disgorgement, the obligations and liabilities of the Guarantor hereunder shall not be
discharged or released, In whole or in part, by any act or occurrence that might, but for
the provisions of this Guaranty, be deemed a legal or equitable discharge or release of
any of the Guarantor
except as otherwise setforth herein.
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The Lender shall be entitled to continue to
hold this Guaranty in its possession for a period of one year from the date the Obligations
are paid and performed in full and for so long thereafter as may be necessary to enforce
any obligation of the Guarantor hereunder and/or to exercise any right or remedy of the
Lender hereunder.
(c) If acceleration of the time for payment of any amount payable by the Borrower
under the Note or any other Loan Document is stayed or delayed by any law or tribunal, all
such amounts shall nonetheless be payable by the Guarantor on demand by the Lender.
7. Waiver of Trial by Jury; Consent to Jurisdiction. WITHOUT
INTENDING IN
ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO ARBITRATE ANY “DISPUTE” (FOR PURPOSES OF THIS
SECTION, AS DEFINED IN THE “DISPUTE RESOLUTION” SECTION) AS SET FORTH IN THIS NOTE,
AGREEMENT, OR GUARANTY, AS APPLICABLE, TO THE EXTENT ANY “DISPUTE” IS NOT SUBMITTED TO
ARBITRATION OR IS DEEMED BY THE ARBITRATOR OR BY ANY COURT WITH JURISDICTION TO BE NOT
ARBITRABLE OR NOT REQUIRED TO BE ARBITRATED, BORROWER AND LENDER WAIVE TRIAL BY JURY IN
RESPECT OF ANY SUCH “DISPUTE” AND ANY ACTION ON SUCH “DISPUTE,” THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY MADE BY BORROWER AND LENDER, AND BORROWER AND LENDER HEREBY
REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR
ENTITY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS
EFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THE LOAN
DOCUMENTS. BORROWER AND LENDER ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION
IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. BORROWER FURTHER
REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS NOTE,
AGREEMENT, OR GUARANTY, AS APPLICABLE, AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT
LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL
SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER
WITH COUNSEL.
The Guarantor irrevocably submits to the nonexclusive jurisdiction of any state or
federal court sitting in the Jurisdiction of Choice over any suit, action or proceeding
arising out of, or relating to, this Guaranty, and irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such state or federal
court. The Guarantor irrevocably waives, to the fullest extent permitted by law, any
objection that the Guarantor may now or hereafter have to the laying of venue of any such
suit, action or proceeding brought in any such court, and any claims that any such suit,
action or proceeding is brought in an inconvenient forum. Final judgment in any such suit,
action or proceeding brought in any such court shall be conclusive and binding upon the
Guarantor and may be enforced in any court in which the Guarantor are subject to
jurisdiction, by a suit upon such judgment provided that service of process is effected
upon the Guarantor as provided in the Loan Documents or as otherwise permitted by
applicable law.
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8. Dispute Resolution.
(a) Arbitration. Except to the extent expressly provided below, any
Dispute shall, upon the request of either party, be determined by binding arbitration in
accordance with the
Federal Arbitration Act, Xxxxx 0, Xxxxxx Xxxxxx Code (or if not applicable, the
applicable state
law), the then-current rules for arbitration of financial services disputes of the
American Arbitration Association or any successor thereof (“AAA”) and the “Special Rules”
set forth below. “Dispute” means any controversy, claim or dispute between or among the
parties to this Note, Agreement, or Guaranty, as applicable, including any controversy,
claim or dispute arising out of or relating to (a) this Note, Agreement, or Guaranty, as
applicable, (b) any other Loan Documents, (c) any related agreements or instruments, or
(d) the transaction contemplated herein or therein (including any claim based on or
arising from an alleged personal injury or business tort), in the event of any
inconsistency, the Special Rules shall control. The filing of a court action is not
intended to constitute a waiver of the right of Borrower or Lender, including the suing
party, thereafter to require submittal of the Dispute to arbitration. Any party to this
Note, Agreement, or Guaranty, as applicable, may bring an action, including a summary or
expedited proceeding, to compel arbitration of any Dispute in any court having
jurisdiction over such action. For the purposes of this Dispute Resolution Section only,
the terms “party” and “parties” shall include any parent corporation, subsidiary or
affiliate of Lender involved in the servicing, management or administration of any
obligation described in or evidenced by this Note, Agreement, or Guaranty, as applicable,
together with the officers, employees, successors and assigns of each of the foregoing.
(b) Special Rules.
(i) The arbitration shall be conducted in any U.S. state where real or
tangible
personal property collateral is located, or if there is no such collateral, in the
City and County where Lender is located pursuant to its address for notice
purposes in this Note, Agreement, or Guaranty, as applicable.
(ii) The arbitration shall be administered by AAA, who will appoint an
arbitrator. If AAA is unwilling or unable to administer or legally precluded from
administering the arbitration, or if AAA is unwilling or unable to enforce or
legally precluded from enforcing any and all provisions of this Dispute Resolution
Section, the any party to this Note, Agreement, or Guaranty, as applicable, may
substitute another arbitration organization that has similar procedures to AAA and
that will observe and enforce any and all provisions of this Dispute Resolution
Section. All Disputes shall be determined by one arbitrator; however, if the amount
in controversy in a Dispute exceeds Five Million Dollars ($5,000,000), upon the
request of any party, the Dispute shall be decided by three arbitrators (for
purposes of this Note, Agreement, or Guaranty, as applicable, referred to
collectively as the “arbitrator”).
(iii) All arbitration hearings will be commenced within ninety (90) days of
the demand for arbitration and completed within ninety (90) days from the date of
commencement; provided, however, that upon a showing of good cause, the arbitrator
shall be permitted to extend the commencement of such hearing for up to an
additional sixty (60) days.
(iv) The judgment and the award, if any, of the arbitrator shall be issued
within thirty (30) days of the close of the hearing. The arbitrator shall provide a
concise written statement setting forth the reasons for the judgment and for the
award, if any. The arbitration award, if any, may be submitted to any court having
jurisdiction to be confirmed and enforced, and such confirmation and enforcement
shall not be subject to arbitration.
(v) The arbitrator will give effect to statutes of limitations and any waivers
thereof in determining the disposition of any Dispute and may dismiss one or more
claims in the arbitration on the basis that such claim or claims is or are barred.
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For
purposes of the application of the statute of limitations, the service on AAA under
applicable AAA rules of a notice of Dispute is the equivalent of the filing of a lawsuit.
(vi) Any dispute concerning this arbitration provision, including any such dispute as
to the validity or enforceability of this provision, or whether a Dispute is arbitrable,
shall be determined by the arbitrator; provided, however, that the arbitrator shall not be
permitted to vary the express provisions of these Special Rules or the Reservations of
Rights in subsection (c) below.
(vii) The arbitrator shall have the power to award legal fees and costs pursuant to
the terms of this Note, Agreement, or Guaranty, as applicable,
(viii) The arbitration will take place on an individual basis without reference to,
resort to, or consideration of any form of class or class action.
(c) Reservations of Rights. Nothing in this Note, Agreement, or Guaranty, as
applicable, shall be deemed to (i) limit the applicability of any otherwise applicable statutes of
limitation and any waivers contained in this Note, Agreement, or Guaranty, as applicable, or (ii)
apply to or limit the right of Lender (A) to exercise self help remedies such as (but not limited
to) setoff, or (B) to foreclose judicially or nonjudicially against any real or personal property
collateral, or to exercise judicial or nonjudicial power of sale rights, (C) to obtain from a
court provisional or ancillary remedies such as (but not limited to) injunctive relief, writ of
possession, prejudgment attachment, or the appointment of a receiver, or (D) to pursue rights
against a party to this Note, Agreement, or Guaranty, as applicable, in a third-party proceeding
in any action brought against Lender in a state, federal or international court, tribunal or
hearing body (including actions in specialty courts, such as bankruptcy and patent courts). Lender
may exercise the rights set forth in clauses (A) through (D), inclusive, before, during or after
the pendency of any arbitration proceeding brought pursuant to this Note, Agreement, or Guaranty,
as applicable. Neither the exercise of self help remedies nor the institution or maintenance of an
action for foreclosure or provisional or ancillary remedies shall constitute a waiver of the right
of any party, including the claimant in any such action, to arbitrate the merits of the Dispute
occasioning resort to such remedies. No provision in the Loan Documents regarding submission to
jurisdiction and/or venue in any court is intended or shall be construed to be in derogation of
the provisions in any Loan Document for arbitration of any Dispute.
(d) Conflicting Provisions for Dispute Resolution. If there is any conflict between
the terms, conditions and provisions of this Section and those of any other provision or agreement
for arbitration or dispute resolution, the terms, conditions and provisions of this Section shall
prevail as to any Dispute arising out of or relating to (i) this Note, Agreement, or Guaranty, as
applicable, (ii) any other Loan Document, (iii) any related agreements or instruments, or (iv) the
transaction contemplated herein or therein (including any claim based on or arising from an
alleged personal injury or business tort). In any other situation, if the resolution of a given
Dispute is specifically governed by another provision or agreement for arbitration or dispute
resolution, the other provision or agreement shall prevail with respect to said Dispute.
(e) Jury Trial Waiver in Arbitration. By agreeing to this Section, the parties
irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any
Dispute.
9. Attorneys’ Fees and Costs of Collection. The Guarantor shall pay on demand
all attorneys’ fees and all other costs and expenses incurred by the Lender in the enforcement of
or preservation of the Lender’s rights under this Guaranty. The Guarantor’s obligations and
liabilities under this Section 9 shall survive any payment or discharge in full of the
Obligations.
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10. Term of Guaranty. This Guaranty shall continue in effect until such time
as the Obligations have been fully and finally paid and performed, except that, and
notwithstanding any return of this Guaranty to the Guarantor, this Guaranty shall continue
in effect (a) with respect to any of the Obligations that survive after expiration or
termination of the Loan, (b) with respect to all obligations and liabilities of the
Guarantor for indemnification and for the payment of all costs and expenses, as provided
herein, and (c) as provided herein with respect to preferential, fraudulent or other
voidable payments or other transfers.
11. Subordination. If, for any reason whatsoever, the Borrower is now or
hereafter becomes indebted to the Guarantor:
(a) such indebtedness and all interest thereon and all liens, security interests and
rights now or hereafter existing with respect to property of the Borrower securing same
shall, at all times, be subordinate in all respects to the Obligations and to all liens,
security interests and rights now or hereafter existing to secure the Obligations; and
(b) The Guarantor shall not be entitled to enforce or receive payment, directly or
indirectly, of any such indebtedness of the Borrower to the Guarantor until the
Obligations have been fully and finally paid and performed. Notwithstanding the foregoing,
the Guarantor may receive payments upon close-out of any Project with regard to loans made
by the Guarantor to the owner of any such Project, or with regard to loans made to
Borrower on behalf of the owner of any such Project. Notwithstanding the foregoing, the
Guarantor may receive payments from Borrower in the form of salaries or shareholder or
member dividends.
12. Subrogation. Notwithstanding anything to the contrary contained herein
(a) the Guarantor shall not have any right of subrogation in or under any of the Loan
Documents or to participate in any way therein, or in any right, title or interest in and
to any security or right of recourse for the Indebtedness, until the later of the date on
which the Indebtedness has been fully and finally paid, or the Loan has expired or been
terminated, and (b) if the Guarantor is or becomes an “insider” (as defined in Xxxxxxx 000
xx xxx Xxxxxx Xxxxxx Bankruptcy Code) with respect to the Borrower, then the Guarantor
hereby irrevocably and absolutely waives any and all rights of contribution,
indemnification, reimbursement or any similar rights against the Borrower with respect to
this Guaranty (including any right of subrogation, except to the extent of collateral held
by the Lender), whether such rights arise under an express or implied contract or by
operation of law. It is the intention of the parties that the Guarantor shall not be
deemed to be a “creditor” (as defined in Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code)
of the Borrower by reason of the existence of this Guaranty in the event that the Borrower
or the Guarantor becomes a debtor in any proceeding under the United States Bankruptcy
code.
13. Notices. Unless specifically provided otherwise, any notice for purposes
of this Guaranty shall be given in writing or by telecopier transmission and shall be
addressed or delivered to the respective addresses set forth at the end of this Guaranty,
or to such other address as may have been previously designated by the intended recipient
by notice given in accordance with this Section. If sent by prepaid, registered or
certified mail (return receipt requested), the notice shall be deemed effective when the
receipt is signed or when the attempted initial delivery is refused or cannot be made
because of a change in address of which the sending party has not been notified; and if
transmitted by telecopier or personal delivery, the notice shall be effective when
received. No notice of change of address shall be effective except upon actual receipt.
14. Cumulative Rights. The exercise by the Lender of any right or
remedy
hereunder or under any other Loan Document, or at law or in equity, shall not preclude the
concurrent or subsequent exercise of any other right or remedy.
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The Lender
shall have all rights, remedies and recourses afforded to the Lender by reason of this
Guaranty or any other Loan Document or by law or equity or otherwise, and the same shall be
cumulative and concurrent and are intended to be, and shall be, nonexclusive. No waiver of
any default on the part of the Guarantor or of any breach of any of the provisions of this
Guaranty or of any other document shall be considered a waiver of any other or subsequent
default or breach, and no delay or omission in exercising or enforcing the rights and
powers granted herein or in any other document shall be construed as a waiver of such
rights and powers, and no exercise or enforcement of any rights or powers hereunder or
under any other document shall be held to exhaust such rights and powers, and every such
right and power may be exercised from time to time. No provision of this Guaranty or any
right, remedy or recourse of the Lender with respect hereto, or any default or breach, can
be waived, nor can this Guaranty or the Guarantor be released or discharged in any way or
to any extent, except specifically in each case by a writing intended for that purpose (and
which refers specifically to this Guaranty) executed, and delivered to the Guarantor, by
the Lender, except as otherwise provided herein.
15. Disclosure of Information. The Lender may sell or offer to sell the Loan
or an interest in the Loan to one or more assignees or participants and may disclose to
any such assignee or participant or prospective assignee or participant any information
the Lender has pertaining to the Loan, the Obligations, this Guaranty, or the Guarantor.
The Lender also may disclose any such information to any regulatory body having
jurisdiction over the Lender and to any agent or attorney of the Lender and in such other
circumstances and to such other parties as necessary or appropriate in the Lender’s
reasonable judgment.
16. Governing Law; Forum. This Guaranty is an agreement executed under seal,
and its validity, enforcement, and interpretation, shall for all purposes be governed by
and construed in accordance with the laws of the state of Georgia [CONFIRM] and applicable
United States federal law, and is intended to be performed in accordance with, and only to
the extent permitted by, such laws. If the Guarantor is a corporation, the designation
“(SEAL)” on this Guaranty shall be effective as the affixing of Guarantor’s corporate seal
physically to this Guaranty. All obligations of the Guarantor hereunder are payable and
performable at the place or places where the Obligations are payable and performable. The
Guarantor hereby irrevocably submits generally and unconditionally for the Guarantor and
in respect of the Guarantor respective property to the jurisdiction of any state court,
or any United States federal court, sitting in the state in which any of the Land is
located, over any suit, action or proceeding arising out of or relating to this Guaranty
or the Obligations. The Guarantor hereby irrevocably waives, to the fullest extent
permitted by law, any objection that the Guarantor may now or hereafter have to the laying
of venue in any such court and any claim that any such court is an inconvenient forum.
17. Counterparts. This Guaranty may be executed in multiple counterparts,
each of which, for all purposes, shall be deemed an original, and all of which together
shall constitute one and the same agreement.
18. Miscellaneous. This Guaranty embodies the entire agreement between the
Lender and the Guarantor with respect to the guaranty by the Guarantor of the Obligations.
This Guaranty supersedes all prior agreements and understandings, if any, with respect to
guaranty by the Guarantor of the Obligations. This Guaranty may not be modified, amended
or superseded except in a writing signed by the Lender and the Guarantor referencing this
Guaranty by its date and specifically identifying the portions hereof that are to be
modified, amended or superseded. This Guaranty is binding not only on the Guarantor, but
also on the Guarantor’s heirs, personal representatives, successors and assigns. If any
provision of this Guaranty or the application thereof to any Person or circumstance shall,
for any reason and to
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any extent, be declared to be invalid or unenforceable, neither the remaining
provisions of this Guaranty nor the application of such provision to any other Person or
circumstance shall be affected thereby, and the remaining provisions of this Guaranty, or
the applicability of such provision to other Persons or circumstances, as applicable,
shall remain in effect and be
enforceable to the maximum extent permitted by applicable law.
19. Original Guaranty. Guarantor acknowledges that this Guaranty is given in
substitution for, and amends, modifies and restates, and as amended, modified and
restated, replaces the Original Guaranty. It is expressly understood and agreed that this
Guaranty is given in replacement of the Original Guaranty, and that no obligations or
liabilities evidenced by the Original Guaranty shall be discharged, cancelled or impaired
by the execution and delivery of this Agreement. To the extent any of the terms of the
Original Guaranty and this Guaranty conflict, the terms of this Guaranty will govern.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Guarantor duly executed and delivered this
Guaranty, intending that it be an instrument under seal, as of the date first
written above.
| WITNESS: | GUARANTOR: | |||||
| XXXXXXXX HOMEBUILDING COMPANIES, INC., a Delaware corporation. |
||||||
By:
|
/s/ Xxxxx Xxxxxxxx | By: /s/ Xxxxxxxxxxx Xxxxxxxx |
||||
| Print Name: Xxxxx Xxxxxxxx | Print Name: Xxxxxxxxxxx Xxxxxxxx |
|||||
| Print Title: CFO | Print Title: CEO |
|||||
| (Seal) | ADDRESS OF GUARANTOR: | |||||
| 00000 Xxxxxx Xxxxx Xxxx | ||||||
| 0xx Xxxxx | ||||||
| Xxxxxx, Xxxxxxxx 00000 | ||||||
| Attention: Xx. Xxxxxxxxxxx Xxxxxxxx | ||||||
ADDRESS OF LENDER:
Bank of America, N.A.
Attn: Loan Administration, Xxxxxxx Xxxxxxx
000 X. Xxxxxxx Xxxxxxxxx (0xx Xxxxx)
Xxxxx, XX 00000
Fax (000) 000-0000
Attn: Loan Administration, Xxxxxxx Xxxxxxx
000 X. Xxxxxxx Xxxxxxxxx (0xx Xxxxx)
Xxxxx, XX 00000
Fax (000) 000-0000
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