CARVE-OUT GUARANTY
EXHIBIT _____
THIS
UNCONDITIONAL GUARANTY (this “Guaranty”) is dated as
of August 1, 2005 and made by TOUSA HOMES, L.P., a Delaware limited partnership
(“TOUSA Me TECHNICAL OLYMPIC USA, INC., a Delaware corporation (together with TOUSA Member,
jointly and severally, the “Guarantors”), in favor of DEUTSCHE BANK TRUST COMPANY
AMERICAS, in its capacity as Administrative Agent for the Lenders described below
(in such capacity, together with its successors in such capacity, the
“Administrative Agent”).
RECITALS
A. Pursuant to that certain Credit Agreement dated as of the date hereof (as
the same may be Modified from time to time, the “Loan Agreement”) by and among
EH/TRANSEASTERN, LLC, a limited liability company organized under the laws of the
state of Delaware and TE/TOUSA SENIOR, LLC, a limited liability company organized
under the laws of the state of Delaware (together, jointly and severally, the
“Borrowers” and each a “Borrower”), the Lenders from time to time party thereto
(the “Lenders”), and Administrative Agent, the Lenders have agreed to make a loan
to Borrowers in an initial principal amount of $450,000,000 (the “Loan”),
consisting of $335,000,000 aggregate principal amount of Term Loans, and up to
$115,000,000 aggregate principal amount of Revolving Commitments.
B. It is a condition precedent to the making of the Loan by the Lenders that
Guarantors shall have executed and delivered this Guaranty to the Administrative
Agent.
C. Capitalized terms used and not otherwise defined herein shall have the
meaning ascribed to such terms in the Loan Agreement.
AGREEMENT
NOW THEREFORE, to induce the Lenders to extend the Loan to Borrowers, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Guarantors hereby covenant and agree, jointly and
severally, as follows:
1. Guarantee of Obligations. Guarantors do hereby, jointly and
severally, unconditionally, absolutely and irrevocably guarantee to the
Administrative Agent, for the benefit of the Lenders and their respective
successors and assigns, as a primary obligor and not merely as a surety (all the
monetary and other obligations referred to in this Section being collectively
referred to as the “Guaranteed Obligations”):
(a) any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including reasonable
attorney’s fees and expenses) of any kind or nature whatsoever which may at any
time be imposed on, incurred by or asserted against Administrative Agent or
Lenders and arising out of or in connection with the matters listed below:
(i) fraud or material misrepresentation by any Transaction Party
in connection with the Loan Documents;
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(ii) the misappropriation by any Transaction Party or any Affiliate
thereof of any Rents or Distributions in violation of Section 6.8;
(iii) any failure of the Borrower Parties to perform their obligations
to properly account to Administrative Agent for any proceeds of
insurance or awards or condemnation as required by the Loan Documents,
to properly apply same in accordance with the terms and provisions of
the Loan Documents, or for the misapplication or misappropriation by the
Borrower Parties of condemnation or insurance proceeds;
(iv) any act by a Transaction Party or any Affiliate thereof
constituting intentional misconduct or waste of the Mortgaged Property;
(v) the Borrower Parties’ failure to observe the covenants set forth
in Sections 6.1 and 6.4 of the Credit Agreement;
(vi) the Borrowers failure to maintain the insurance required to be
maintained under the Loan Documents or pay Taxes or Impositions required
to be paid under Section 5.8;
(b) upon the occurrence of any of the following events, all of
the Obligations:
(i) any
Transaction Party files a petition or commences any proceeding as to which such Person is the debtor therein pursuant to the
Bankruptcy Code, any successor statute, any similar debtor relief law, or
any state insolvency proceedings, or
(ii) any Transaction Party shall institute any proceeding for
the
dissolution or liquidation of a Transaction Party, or shall make an
assignment for the benefit of creditors with respect to a Transaction
Party, or
(iii) any of the actions described in subsections (a) or (b) is
commenced or filing is made as to which a Transaction Party is the debtor
therein by any Affiliate of any Transaction Parties or through collusion
with any third party.
Guarantors further agree that the Guaranteed Obligations may be Modified,
waived, accelerated or compromised from time to time, in whole or in part,
without notice to or further assent from them, and that they will remain bound
upon its guarantee notwithstanding any Modification, waiver, acceleration or
compromise of any of the Guaranteed Obligations.
2. Nature of Guaranty. This is an irrevocable, absolute,
continuing guaranty of payment and performance and not a guaranty of
collection. Guarantors waive any right to require that any resort be had by
the Administrative Agent or any Lender to any of the security held for payment
of the Guaranteed Obligations or to any balance of any deposit account or
credit on the books of the Administrative Agent or any Lender in favor of
Borrowers or any other person. This Guaranty may not be revoked by Guarantors
and shall continue to be effective with respect to the Guaranteed Obligations
arising or created after any attempted revocation by Guarantors. It is the
intent of Guarantors that the obligations and liabilities of Guarantors
hereunder are absolute and unconditional under any and all circumstances and
that
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until the Guaranteed Obligations are fully and finally satisfied, such
obligations and liabilities shall not be discharged or released in whole or in
part, by any act or occurrence which might, but for the provisions of this
Guaranty, be deemed a legal or equitable discharge or release of Guarantors.
3. Rights Independent. The obligations of Guarantors hereunder
are independent of the Obligations of Borrowers or the obligations of any
other Person, including any other Person executing a guaranty of any or all of
the Guaranteed Obligations (such Person, an “Other Guarantor”) or any security
for the Guaranteed Obligations, and the Administrative Agent may proceed in
the enforcement hereof independently of any other right or remedy that the
Administrative Agent may at any time hold with respect to the Guaranteed
Obligations or any security or other guarantee therefor. The Administrative
Agent may file a separate action or actions against Guarantors hereunder,
whether action is brought and prosecuted with respect to any security or
against Borrowers or any Other Guarantor or any other Person, or whether
Borrowers or any Other Guarantor or any other Person is joined in any such
action or actions. Guarantors waive the benefit of any statute of limitations
affecting their liability hereunder or the enforcement of the Guaranteed
Obligations. The liability of Guarantors hereunder shall be reinstated and
revived, and the rights of the Administrative Agent and each Lender shall
continue, with respect to any amount at any time paid on account of the
Guaranteed Obligations which shall thereafter be required to be restored or
returned by the Administrative Agent or any Lender upon the bankruptcy,
insolvency, or reorganization of Borrowers or any other Person, or otherwise,
all as though such amount had not been paid. Guarantors further agree to the
extent (i) Borrowers or Guarantors make any payment to the Administrative
Agent or any Lender in connection with the Guaranteed Obligations and all or
any part of such payment is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid by the trustee,
receiver or any other entity, whether under any Bankruptcy Law or otherwise,
or (ii) in the event following the payment in full of the principal amount of
the Loan, the Administrative Agent or any Lender is subject to further
liability, loss, or expense covered by the indemnification obligations set
forth in the Loan Documents (the payments and obligations referred to in
clauses (i) and (ii) above are hereafter referred to, collectively, as
“Preferential Payments”), then this Guaranty shall continue to be
effective or shall be reinstated, as the case may be, and, to the extent of
such payment or repayment by the Administrative Agent or such Lender, the
Guaranteed Obligations or part thereof intended to be satisfied by such
Preferential Payment shall be revived and continued in full force and effect
as if said Preferential Payment had not been made.
4. Authority to Modify the Guaranteed Obligations. Each Guarantor
authorizes the Administrative Agent and each Lender, without notice to or
demand on Guarantors and without affecting its liability hereunder or the
enforceability hereof, from time to time to: (a) Modify, waive, accelerate or
compromise the time for payment or the terms of the Guaranteed Obligations or
any part thereof, including increase or decrease the rates of interest
thereon; (b) Modify, waive, accelerate, compromise, or enter into or give any
agreement, approval, or consent with respect to, the Guaranteed Obligations or
any part thereof or any of the Loan Documents or any security or additional
guaranties, or any condition, covenant, default, remedy, right,
representation, or term thereof or thereunder; (c) accept new or additional
instruments, documents, or agreements in exchange for or relative to any of
the Loan Documents or the Guaranteed Obligations or any part thereof; (d)
accept partial payments on the Guaranteed
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Obligations; (e) receive and hold additional security or guaranties for
the Guaranteed Obligations or any part thereof or this Guaranty; (f) release,
reconvey, terminate, waive, abandon, subordinate, exchange, substitute,
transfer, and enforce the Guaranteed Obligations or any security or any other
guaranties, and apply any security and direct the order or manner of sale
thereof as the Administrative Agent or such Lender in its discretion may
determine; (g) release Borrowers or any other Person or any Other Guarantor
from any personal liability with respect to the Guaranteed Obligations or any
part thereof; (h) settle, release on terms reasonably satisfactory to the
Administrative Agent or such Lender or by operation of law or otherwise,
compound, compromise, collect, or otherwise liquidate or enforce any of the
Guaranteed Obligations and any security or other guarantee in any manner,
consent to the transfer of any security, and bid and purchase at any sale; and
(i) consent to the merger or any other change, restructure, or termination of
the corporate existence of Borrowers or any other Person and correspondingly
restructure the Guaranteed Obligations, and any such merger, change,
restructure, or termination shall not affect the liability of Guarantors
hereunder or the enforceability hereof with respect to all Guaranteed
Obligations.
5. Waiver of Defenses.
(a) Each Guarantor waives any right to require the Administrative Agent
or any Lender, prior to or as a condition to the enforcement of this Guaranty,
to: (i) proceed against Borrowers or any other Person or any Other Guarantor;
(ii) proceed against or exhaust any security for the Guaranteed Obligations or
to marshal assets in connection with foreclosing collateral security; (iii)
give notice of the terms, time, and place of any public or private sale of any
security for the Guaranteed Obligations; or (iv) pursue any other remedy in
the Administrative Agent’s or such Lender’s power whatsoever.
(b) Each Guarantor waives any defense arising by reason of: (i) any
disability or other defense of Borrowers or any other Person with respect to
the Guaranteed Obligations; (ii) the unenforceability or invalidity of the
Guaranteed Obligations, any of the Loan Documents or any security or any other
guarantee for the Guaranteed Obligations, or the lack of perfection or failure
of priority of any security for the Guaranteed Obligations; (iii) the
cessation from any cause whatsoever of the liability of Borrowers or any other
Person or any Other Guarantor (other than by reason of the full payment and
discharge of the Guaranteed Obligations); (iv) any act or omission of the
Administrative Agent or any Lender or any other Person which directly or
indirectly results in or aids the discharge or release of Borrowers or any
other Person or the Guaranteed Obligations or any security or other guarantee
therefor by operation of law or otherwise; (v) the taking or accepting of any
other security, collateral or guaranty, or other assurance of the payment or
performance of all or any of the Guaranteed Obligations; (vi) any release,
surrender, exchange, subordination, deterioration, waste, loss or impairment
by the Administrative Agent or any Lender (including any negligent impairment
but excluding any gross negligent or willful impairment) of any collateral,
property or security, at any time existing in connection with, or assuring or
securing payment of, all or any part of the Guaranteed Obligations; (vii) the
failure of the Administrative Agent, any Lender or any other Person to
exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of any
collateral, property or security (but excluding any gross negligence or
willful misconduct on the part of the Administrative Agent or any Lender);
(viii) the fact that any collateral, security, security interest or lien
contemplated or intended to be
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given, created or granted as security for the repayment of the indebtedness
evidenced by the Notes or the Guaranteed Obligations shall not be properly
perfected or created, or shall prove to be unenforceable or subordinate to any
other security interest or lien, it being recognized and agreed by Guarantors
that Guarantors are not entering into this Guaranty in reliance on, or in
contemplation of the benefits of, the validity, enforceability, collectibility
or value of any of the collateral for the Guaranteed Obligations or any
security interest in such collateral; (ix) any payment by Borrowers to the
Administrative Agent or any Lender is held to constitute a preference under
the Bankruptcy Code or any another federal, state or local laws concerning
bankruptcy, insolvency, reorganization or relief of debtors, or for any reason
the Administrative Agent or any Lender is required to refund such payment or
pay such amounts to Borrowers or any other Person legally entitled thereto;
and (x) any and all other suretyship or defenses that may be available to
Guarantors.
(c) Each Guarantor waives: (i) all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices
of dishonor, and all other notices of any kind or nature whatsoever with
respect to the Guaranteed Obligations, and notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
Guaranteed Obligations; (ii) any rights to set-offs, recoupments, claims or
counterclaims; and (iii) any right to revoke or terminate this Guaranty.
6. Subordination.
(a) Each Guarantor hereby covenants and agrees that the principal of, or
interest on, all now existing and hereafter arising Indebtedness of Borrowers
to Guarantors (the “Claims”) and all rights and remedies of Guarantors with
respect thereto and any lien securing payment thereof are and shall continue
to be subject, subordinate and rendered junior in the right of payment to all
amounts due and payable in respect of the Guaranteed Obligations, as the same
may be Modified, waived, accelerated or compromised from time to time.
(b) Guarantors represent and warrant to the Administrative Agent that
Guarantors are or will be the sole and absolute owners of the Claims and have
not sold, assigned, transferred or otherwise disposed of any right they may
have to repayment of the Claims or any security therefor. Guarantors hereby
further covenant and agree that upon the occurrence and during the
continuation of any Potential Default or Event of Default, until the
Guaranteed Obligations are paid and performed in full: (i) Guarantors will not
receive, directly or indirectly, any payment, advance, credit or further
security of any kind whatsoever on account of the Claims; (ii) Guarantors will
not sell, assign, transfer or endorse the Claims or any part or evidence
thereof; (iii) Guarantors will not Modify the Claims or any part or evidence
thereof; and (iv) Guarantors will not take, or permit any action to be taken,
to assert, collect or enforce the Claims or any part thereof.
(c) Upon any distribution of all of the assets of any Borrower to its
creditors upon the dissolution, winding up, liquidation, arrangement, or
reorganization of any Borrower, whether in any bankruptcy, insolvency,
arrangement, reorganization or receivership proceeding or upon an assignment
for the benefit of creditors or any other marshalling of the assets and
liabilities of any Borrower or otherwise, any payment or distribution of any
kind (whether in cash, property or securities) which is payable or deliverable
upon or with respect to the Claims
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shall be held in trust for the Administrative Agent and the Lenders and shall
be paid over or delivered to the Administrative Agent for the benefit of the
Lenders to be applied against the payment or prepayment of the Guaranteed
Obligations until the Guaranteed Obligations shall have been indefeasibly paid
in full. If any proceeding referred to in the preceding sentence is commenced
by or against any Borrower: (i) the Administrative Agent is hereby irrevocably
authorized and empowered (in its own name or in the name of Guarantors or
otherwise), but shall have no obligation, to demand, xxx for, collect and
receive every payment or distribution referred to the preceding sentence and
give acquittance therefor and to file claims and proofs of claim and take such
other action (including, without limitation, voting the Claims or enforcing
any security interest or other lien securing payment of the Claims) as the
Administrative Agent may deem necessary or advisable for the exercise or
enforcement of any of the rights or interests of the Administrative Agent
hereunder; and (ii) Guarantors shall duly and promptly take such action as the
Administrative Agent may reasonably request (A) to collect the Claims for
account of the Administrative Agent and to file appropriate claims or proofs
of claim in respect of the Claims, (B) to execute and deliver to the
Administrative Agent such powers of attorney, assignments, or other
instruments as it may reasonably request in order to enable it to enforce any
and all claims with respect to, and any security interests and other liens
securing payment of, the Claims, and (C) to collect and receive any and all
payments or distributions which may be payable or deliverable upon or with
respect to the Claims.
(d) All payments or distributions upon or with respect to the
Claims which are received by Guarantors contrary to the provisions of this
Guaranty shall be received in trust for the benefit of the Administrative
Agent, shall be segregated from other funds and property held by Guarantors
and shall be forthwith paid over to the Administrative Agent in the same form
as so received (with any necessary endorsement) to be applied (in the case of
cash) to, or held as collateral (in the case of non-cash property or
securities) for, the payment or prepayment of the Guaranteed Obligations.
7. Deferral of Subrogation. Until all of the Guaranteed
Obligations have been paid and performed in full, (i) Guarantors shall not
exercise any rights of subrogation, contribution or reimbursement against any
Borrower or any Other Guarantor of the Guaranteed Obligations, and (ii)
Guarantors shall not exercise any right to enforce any right, power or remedy
which the Administrative Agent or any Lender now has or may in the future have
against Borrowers or any Other Guarantor and any benefit of, and any right to
participate in, any security for this Guaranty or for the obligations of
Borrowers or any Other Guarantor now or in the future held by the
Administrative Agent or any Lender. If Guarantors nevertheless receive payment
of any amount on account of any such subrogation, contribution or
reimbursement rights or otherwise in respect of any payment by Guarantors of
the Guaranteed Obligations prior to payment and performance in full of all of
the Guaranteed Obligations, such amount shall be held in trust for the benefit
of the Administrative Agent and immediately paid to the Administrative Agent
for application to the Guaranteed Obligations in such order and manner as the
Administrative Agent may determine.
8. Condition of Borrowers. Each Guarantor represents and warrants
to the Administrative Agent, for the benefit of the Lenders that: (a) this
Guaranty is executed at the request of Borrowers; (b) such Guarantor has
established adequate means of obtaining from Borrowers on a continuing basis
financial and other information pertaining to the business of
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each such Borrower; (c) such Guarantor is now and will continue to be
adequately familiar with the business, operations, condition, and assets of
Borrowers; (d) such Guarantor will receive substantial direct and indirect
benefits from the financing arrangements contemplated by the Loan Documents;
and (e) the agreements, waivers and acknowledgements contained herein are
knowingly made in contemplation of such benefits. Each Guarantor hereby waives
and relinquishes any duty on the part of the Administrative Agent or any
Lender to disclose to Guarantors any matter, fact or thing relating to the
business, operations, condition, or assets of Borrowers now known or hereafter
known by the Administrative Agent or any Lender during the life of this
Guaranty. With respect to any of Guaranteed Obligations, neither the
Administrative Agent nor any Lender need inquire into the powers of Borrowers
or the officers or employees acting or purporting to act on its behalf, and
all Guaranteed Obligations made or created in good faith reliance upon the
professed exercise of such powers shall be guaranteed hereby.
9. Representations and Warranties of Guarantors. Each Guarantor
represents and warrants to the Administrative Agent that all of
representations and warranties relating to such Guarantor contained in the
Loan Agreement are true and correct. Each Guarantor further
represents and warrants to the Administrative Agent that all of the representations and
warranties set forth in Schedule 1 hereto are true and correct as of
the date hereof.
10. Payments. All payments made by Guarantors to or for the
account of the Administrative Agent or any Lender shall be made without
condition or deduction of any kind, including for any counterclaim, defense,
recoupment of set-off. All payments made by Guarantors hereunder shall be made
free and clear of and without deduction for any present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and all liabilities with respect thereto (collectively,
“Taxes”). Guarantors shall pay such Taxes and shall promptly furnish to the
Administrative Agent copies of any tax receipts or such evidence of payment as
the Administrative Agent or any Lender may reasonably require.
11. Costs and Expenses in Enforcement. Guarantors agree to pay to
the Administrative Agent all out of pocket advances, charges, costs, and
expenses, including reasonable attorneys fees, incurred or paid by the
Administrative Agent in exercising any right, power, or remedy conferred by
this Guaranty, or in the enforcement of this Guaranty, whether or not an
action is filed in connection therewith.
12. Notices. All notices, requests, demands and other
communications which are required or may be given under this Guaranty shall be
in writing and shall be delivered to the parties hereto in the manner provided
in the Loan Agreement to the following addresses:
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To Guarantors:
|
Technical Olympic USA, Inc. | ||
| Xxxxx 000-X | |||
| 0000 Xxxxxxxxx Xxxx. | |||
| Xxxxxxxxx, XX 00000 | |||
| Facsimile: (000) 000-0000 | |||
| Attention: Xxxxxxxx X. Xxxxxxxx, Esq. | |||
| c/o TOUSA Homes, L.P. | |||
| c/oTechnical Olympic USA, Inc. | |||
| Xxxxx 000-X | |||
| 0000 Xxxxxxxxx Xxxx. | |||
| Xxxxxxxxx, XX 00000 | |||
| Facsimile: (000) 000-0000 | |||
| Attention: Xxxxxxxx X. Xxxxxxxx, Esq. | |||
with a copy to:
|
Xxxxxxxxx Xxxxxxx P.A. | ||
| 0000 Xxxxxxxx Xxxxxx | |||
| Xxxxx, XX 00000 | |||
| Facsimile: (000) 000-0000 | |||
| Attention: Xxxx Xxxxxxxxx, Esq. | |||
To Administrative Agent:
|
Deutsche Bank Trust Company Americas | ||
| 000 Xxxxxxxx Xxxxx, Xxxxx 000 | |||
| Xxxxxx, Xxxxx 00000 | |||
| Facsimile: (000) 000-0000 | |||
| Attention: Xxx Xxxxxx | |||
With a copy to:
|
Xxxxxx & Xxxxxxx LLP | ||
| 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000 | |||
| Xxx Xxxxxxx, Xxxxxxxxxx 00000 | |||
| Facsimile: (000) 000-0000 | |||
| Attention: Xxxxxx X. Xxxxxx, Esq. |
Any party may change the address to which notices are to be sent by notice of such change to each
other party given as provided above.
13. Termination. The guarantees made hereunder (a) shall terminate when all of the
Guaranteed Obligations have been indefeasibly paid and performed in full, and (b) shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any Guaranteed Obligation is rescinded or must otherwise be restored by any Lender or Guarantors
upon the bankruptcy or reorganization of any Borrower, Guarantors or otherwise.
14. No Waiver; Cumulative Remedies. The rights, powers and remedies of the
Administrative Agent hereunder and under the other Loan Documents are cumulative and in addition to
all rights, power and remedies provided under any and all agreements among Guarantors, Borrowers,
the Administrative Agent and the Lenders relating to the Guaranteed
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Obligations, at law, in equity or otherwise. Any delay or failure by the
Administrative Agent to exercise any right, power or remedy shall not
constitute a waiver thereof by the Administrative Agent or the Lenders, and no
single or partial exercise by the Administrative Agent of any right, power or
remedy shall preclude any other or further exercise thereof or any exercise of
any other rights, powers or remedies. Without limiting the foregoing, the
Administrative Agent on behalf of the Lenders is hereby authorized to demand
specific performance of this Guaranty at any time when Guarantors shall have
failed to comply with any of the provisions of this Guaranty applicable to it.
15. Amendments. Subject to Section 9.2 of the Loan Agreement,
this Guaranty may be Modified only by, and none of the terms hereof may be
waived without, a written instrument executed by Guarantors and the
Administrative Agent.
16. Waivers. Each Guarantor warrants and agrees that each of the
waivers set forth in this Guaranty are made with such Guarantor’s full
knowledge of their significance and consequences, and that under the
circumstances, the waivers are reasonable and not contrary to public policy or
law. If any of such waivers are determined to be contrary to any applicable
law or public policy, such waivers shall be effective only to the maximum
extent permitted by law.
17. Binding Agreement. This Guaranty and the terms, covenants,
and conditions hereof shall be binding upon and inure to the benefit of
Guarantors, the Administrative Agent, each Lender, and their respective
successors and assigns; provided, however, that Guarantors shall not be
permitted to transfer, convey, assign or delegate this Guaranty or any
interest herein without the prior written consent of the Administrative Agent
and, to the extent required pursuant to the Loan Agreement, the Lenders. Each
Lender may assign its interest hereunder in whole or in part in connection
with an assignment of its interest in the Guaranteed Obligations pursuant to
Section 9.8(1) of the Loan Agreement.
18. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
19. JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS GUARANTY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS GUARANTY, EACH GUARANTOR CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS GUARANTY. EACH GUARANTOR WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY NEW YORK LAW.
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20. WAIVER OF JURY TRIAL. EACH GUARANTOR, AND BY ACCEPTANCE OF THIS GUARANTY, THE
ADMINISTRATIVE AGENT AND EACH OF THE LENDERS, WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF
THE PARTIES TO THE LOAN AGREEMENT AGAINST ANY OTHER PARTY OR ANY PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH GUARANTOR, AND BY ACCEPTANCE OF
THIS GUARANTY, THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS, AGREES THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING,
EACH GUARANTOR, AND BY ACCEPTANCE OF THIS GUARANTY, THE ADMINISTRATIVE AGENT AND EACH OF THE
LENDERS, FURTHER AGREES THAT ITS RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS
TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE
VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY.
21. Severability. In case any one or more of the provisions contained in this Guaranty
should be held invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular provision hereof in a
particular jurisdiction shall not in and of itself affect the validity of such provision in any
other jurisdiction). The parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.
22. Miscellaneous. All words used herein in the plural shall be deemed to have been
used in the singular, and all words used herein in the singular shall be deemed to have been used
in the plural, where the context and construction so require. Section headings in this Guaranty are
included for convenience of reference only and are not a part of this Guaranty for any other
purpose.
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IN WITNESS WHEREOF, each Guarantor has caused this
Guaranty to be duly executed as of the date first written
above.
| GUARANTORS: | ||||||
| TECHNICAL OLYMPIC USA, INC. | ||||||
| By: | /s/ Xxxxx XxXxxx | |||||
| Name: Xxxxx XxXxxx | ||||||
| Title: Executive Vice President | ||||||
| TOUSA HOMES, L.P. | ||||||
| By: | /s/ Xxxxx XxXxxx | |||||
| Name: Xxxxx XxXxxx | ||||||
| Title: Executive Vice President | ||||||
Signature page to Senior Carve-Out Guaranty
Schedule 1
Representations and Warranties of Each Guarantor
1. Organization;
Requisite Power and Authority; Qualification.
| (a) | Such Guarantor (A) is either a corporation, a limited partnership or a limited liability company duly incorporated, formed or organized, validly existing, and in good standing under the laws of the state of its incorporation, organization and/or formation, (B) is duly qualified to do business and is in good standing under the laws of each jurisdiction in which the failure to be so qualified and in good standing will have or is reasonably expected to have a Material Adverse Effect, and (C) has all requisite corporate, partnership or limited liability company power and authority to own, operate and encumber its Property and to conduct its business as presently conducted and as proposed to be conducted in connection with and following the consummation of the transactions contemplated by this Agreement. | |
| (b) | True, correct and complete copies of the Organizational Documents of such Guarantor have been delivered to the Administrative Agent and have not been Modified except to the extent indicated therein. All of the Organizational Documents are in full force and effect, and there are no defaults under such Organizational Documents (including with respect to any restrictions on Indebtedness contained therein), and no events which, with the passage of time or giving of notice or both, would constitute a default under such Organizational Documents (including with respect to any restrictions on Indebtedness contained therein). | |
| (c) | Such Guarantor has the requisite power and authority to execute, deliver and perform this Agreement and each of the other Loan Documents which are required to be executed on its behalf. The execution, delivery and performance of each of the Loan Documents which must be executed in connection with this Agreement by such Guarantor and to which such Guarantor is a party and the consummation of the transactions contemplated thereby are within such Guarantor’s partnership, company, or corporate powers, have been duly authorized by all necessary partnership, company, or corporate action and such authorization has not been rescinded. No other partnership, company, or corporate action or proceedings on the part of such Guarantor is necessary to consummate such transactions. | |
| (d) | Each of the Loan Documents to which such Guarantor is a party has been duly executed and delivered on behalf of such Guarantor and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms (subject to bankruptcy, insolvency, reorganization, or other laws affecting creditors’ rights generally and to principles of equity, regardless of whether considered in a proceeding in equity or at law), is in full force and effect and all the terms, provisions, agreements and conditions set forth therein and required to be performed or complied with by such Guarantor on or before the Closing Date have been performed or complied with, and no Potential Default or Event of Default exists thereunder. |
2. No Conflict. As of the Closing Date, the execution,
delivery and performance by such Guarantor of the Loan Documents to which it
is a party and the consummation of the transactions contemplated by the Loan
Documents do not and will not (a) violate (i) any provision of any law or any
governmental rule or regulation applicable to such Guarantor, (ii) any of the
Organizational Documents of such Guarantor, or (iii) any order, judgment or
decree of any court or other agency of government binding on such Guarantor,
except in the case of clauses (i), (ii) and (iii) to the extent such violation
will not result in a Material Adverse Effect; (b) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any material Contractual Obligation of such Guarantor, except to the
extent such conflict, breach or default will not result in a Material Adverse
Effect; or (c) require any approval of stockholders, members or partners or
any approval or consent of any Person under any Contractual Obligation of such
Guarantor except for such approvals or consents which will be obtained on
or before the Closing Date and except for any such approvals or consents the
failure of which to obtain will not result in a Material Adverse Effect.
3. No
Material Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to such
Guarantor’s Knowledge, threatened by or against such Guarantor or against such
Guarantor’s Properties or revenues which is likely to be adversely determined
and which, if adversely determined, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect. The
performance of any action by such Guarantor required or contemplated by any
Loan Documents is not restrained or enjoined (either temporarily,
preliminarily or permanently).
