AMENDED AND RESTATED GUARANTY AGREEMENT
Exhibit
10.52
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.
R E C I T A L S:
WHEREAS, pursuant to the terms of a certain Land Acquisition and Development Agreement dated
as of May 2, 2005, by and between Highland Avenue Properties, LLC, a Georgia limited liability
company (the “Borrower”) and Lender (as the same may be amended, renewed, supplemented or restated
from time to time, the “Loan Agreement”), Lender made a loan (the “Loan”) to Borrower in the
original maximum principal amount of Four Million Eight Hundred Fifty One Thousand Two Hundred
Thirty-Five and No/100 Dollars ($4,851,235.00), as evidenced by that certain Promissory Note dated
May 2, 2005 made by Borrower payable to the order of Lender (as the same may be amended, renewed,
supplemented or restated from time to time, the “Note”); and
WHEREAS, Borrower’s obligations under the Note are secured by, among other things, a Deed to
Secure Debt and Security Agreement dated as of May 2, 2005, from Borrower for the benefit of
Lender, and recorded among the land records of Xxxxxx County, Georgia in the Superior Court of
Xxxxxx County, Georgia on May 4, 2005 in Deed Book 39924 Page 32 (as the same may be amended,
renewed, supplemented or restated from time to time, the “Deed to Secure”), covering
certain real property and improvements thereon located in Xxxxxx County Georgia and more
particularly described therein and on Exhibit A attached hereto (collectively, the
“Property”); and
WHEREAS, Borrower’s obligations under the Note and the other Loan Documents (hereinafter
defined) including, but not limited to, the prompt and full payment and performance of the
Indebtedness and the other obligations in connection with the Loan as are hereinafter collectively
called the “Obligations”; the Note, the Deed to Secure, the Loan Agreement and all other
documents previously, now or hereafter executed and delivered to evidence, secure, guarantee, or
in connection with, the Obligations, as the same may from time to time be renewed, extended,
amended, supplemented or restated, are hereinafter collectively called the “Loan
Documents”; and all liens, security interests, assignments, superior titles, rights, remedies,
powers, equities and priorities securing the Note or providing recourse to Lender with respect
thereto are hereinafter collectively called the
“Liens”; and
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, Borrower has requested that Lender agree to modify the Loan to (i) modify certain
payment terms of the Loan; and (ii) make certain other changes to the Loan Documents as set forth
in a certain Loan Modification Agreement of even date herewith (the
“Modification”).
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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.
W I T N E S S E T H:
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 all 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, refinancings, 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.
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.
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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 (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,
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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:
(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;
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(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;
(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;
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(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 set forth herein. 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.
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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.
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.
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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. 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.
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(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.
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.
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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. 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 toy
time.
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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 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.
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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 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 | ||||||||||||
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