Exhibit 10.4
CONTINUING GUARANTY
DEERVALLEY ACQUISITIONS CORP.
For the purpose of inducing FIFTH THIRD BANK, a Michigan banking
corporation, hereinafter referred to as the "Lender," to loan to DEER VALLEY
HOMEBUILDERS, INC., an Alabama corporation, hereinafter referred to as the
"Borrower," the maximum sum of $2,500,000.00, the undersigned, hereinafter
referred to as "Guarantor," whether one or more, jointly and severally if more
than one, does hereby unconditionally guaranty to Lender that: (a) Borrower will
duly and punctually pay or perform all indebtedness, obligations and
liabilities, direct or indirect, matured or unmatured, primary or secondary,
certain or contingent of Borrower to Lender now or hereafter owing or incurred
(including without limitation costs and expenses incurred by Lender in
attempting to collect or enforce any of the foregoing) which are chargeable to
Borrower either by law or under the terms of Xxxxxx's arrangements with Borrower
relative to the above mentioned loan, hereinafter collectively referred to as
the "Obligations" and individually as an "Obligation"; and (b) if there are any
agreements or instruments evidencing or executed and delivered in connection
with any Obligation, including but not limited to a mortgage and/or security
agreement, Borrower will perform in all other respects strictly in accordance
with the terms thereof.
1. The word "Indebtedness" is used herein in its most comprehensive
sense, and includes any and all advances (including future advances and those
advances made by Lender to protect, enlarge or preserve the priority, propriety,
or amount of its lien against mechanic's liens, equitable liens, or statutory
claimants, or otherwise), debts, obligations and liabilities of Borrower
heretofore, now or hereafter made, incurred or created, whether voluntary or
involuntary and however arising, whether due or not, absolute or contingent,
liquidated, determined or undetermined, and whether Borrower may be liable
individually or jointly with others, or whether recovery upon such indebtedness
may be or hereafter become barred by any statute of limitations, or whether such
indebtedness may be or hereafter become otherwise unenforceable. This is a
Continuing Guaranty relating to said indebtedness, including that. arising under
subsequent or successive transactions which shall either continue to increase
the indebtedness or from time to time renew it after it has been satisfied.
2. The obligations hereunder are independent of the Obligations of
Xxxxxxxx and a separate action or actions may be brought and prosecuted against
Guarantor whether action is brought against Borrower or whether Borrower may be
joined in any such action or actions; and Guarantor waives the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
thereof.
3. Guarantor authorizes Xxxxxx, without notice or demand and without
affecting its liability hereunder, from time to time to:
(a) Renew, amend, compromise, extend, accelerate or otherwise change the
time for payment of, or otherwise change the terms of the indebtedness or any
part thereof;
(b) Take and hold security for the payment of this guaranty or the
indebtedness guarantied, exchange, enforce, waive and release any such security;
(c) Apply such security and direct the order or manner of sale thereof as
Lender in its discretion may determine.
4. Guarantor waives any right to require Lender to: (a) proceed against
Borrower; (b) proceed against or exhaust any security held from Borrower; or (c)
pursue any other remedy in Xxxxxx's power whatsoever. Guarantor waives any
defense arising by reason of any disability or other defense of Borrower or by
reason of the cessation from any cause whatsoever of the liability of Borrower,
except the defense of payment, and until all indebtedness of Borrower to Lender
shall have been paid in full, Guarantor shall have no right to subrogation, and
waives any right to enforce any remedy which Lender now has or may hereafter
have against Borrower, and waives any benefit of, and any right to participate
in any security now or hereafter held by Lender. Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of dishonor, and notices of acceptance of this guaranty and of the
existence, creation or incurring of new or additional indebtedness. Guarantor
covenants to cause Borrower to maintain and preserve the enforceability of any
instruments now or hereafter executed in favor of the Lender, and to take no
action of any kind which might be the basis for a claim that Guarantor has any
defense hereunder other than payment in full of all indebtedness of Borrower to
Lender. Guarantor hereby indemnifies Lender against loss, cost or expense by
reason of the assertion by Borrower of any defense of its obligations under any
of the aforesaid instruments, or resulting from the attempted assertion by
Guarantor of any defense hereunder based upon any such action or inaction of
Borrower. Guarantor waives any right or claim of right to cause a marshaling of
Xxxxxxxx's assets or to require Lender to proceed against Guarantor in any
particular order. No delay on the part of Lender in the exercise of any right,
power or privilege under the documentation with Borrower or under this guaranty
shall operate as a waiver of any such privilege, power or right.
5. In addition to all liens upon, and rights of setoff against the
monies, securities or other property of Guarantor given to Lender by law, Lender
shall have a lien upon and a right of setoff against all monies, securities and
other property of Guarantor now or hereafter in the possession of or on deposit
with Lender, whether held in a general or special account of deposit, or for
safekeeping or otherwise; and every such lien and right of setoff may be
exercised without demand upon or notice to Guarantor. No act or conduct on the
part of the Lender, or by any neglect to exercise such right of setoff or to
enforce such lien, or by any delay in so doing, shall operate as a waiver of
such right; and every right of setoff and lien shall continue in full force and
effect until such right of setoff or lien is specifically waived or released by
an instrument in writing executed by Xxxxxx.
6. Any indebtedness of Borrower now or hereafter held by Guarantor is
hereby subordinated to the indebtedness of Borrower to Lender. Guarantor also
hereby waives any claim, right or remedy which Guarantor may now have or
hereafter acquire against Borrower that arises hereunder and/or from the
performance by Guarantor hereunder including, without limitation, any claim,
remedy or right of subrogation, reimbursement, exoneration, indemnification, or
participation in any claim, right or remedy of Lender against Borrower or any
security which Lender now has or hereafter acquires, whether or not such claim,
right or remedy arises in equity, under contract, by statute, under common law
or otherwise.
7. Guarantor agrees to pay reasonable attorneys' fees, paralegals' fees
and legal assistants' fees, and all other costs and expenses which may be
incurred by Xxxxxx in the enforcement of Xxxxxxxx's Obligations and/or of this
guaranty.
8. Upon the default of Borrower with respect to any of its Obligations
or liabilities to Lender, or in case Borrower or Guarantor shall become
insolvent or make an assignment for the benefit of creditors, or if a petition
in bankruptcy or for corporate reorganization or for an arrangement shall be
filed by or against Borrower or Guarantor, or in the event of an appointment of
a receiver for Borrower or Guarantor or its properties, or in the event that a
judgment is obtained or warrant of attachment issued against Borrower or
Guarantor, all or any part of the Obligations and liabilities of the Borrower
and/or Guarantor to Lender, whether direct or contingent, and of every kind and
description, shall, without notice or demand, at the option of the Lender,
become immediately due and payable and shall be satisfied by Guarantor.
9. Guarantor guarantees any sums that a trustee or debtor might
thereafter recover from the Lender pursuant to a bankruptcy proceeding.
10. Guarantor acknowledges that Lender has been induced by this
guaranty to make the loan to Borrower heretofore described, and this guaranty
shall, without further reference or assignment, pass to and may be relied upon
and enforced by, any successor, participant or assignee of Lender in and to any
liabilities or Obligations of Borrower.
11. Guarantor hereby waives any right to trial by jury in any
litigation at any time arising with respect to any matter connected with this
guaranty.
12. This guaranty shall, for all purposes, be governed by and construed
in accordance with, the laws of the State of Florida.
Dated as of the day of April, 2006.
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DEERVALLEY ACQUISITIONS CORP.,
a Florida corporation
By:
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Xxxxxxx X. Xxxxxxx, as it President
(CORPORATION SEAL)
STATE OF ALABAMA
COUNTY OF
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The foregoing instrument was acknowledged before me this day of
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April, 2006, by Xxxxxxx X. Xxxxxxx, as President of DEERVALLEY ACQUISITIONS
CORP., a Florida corporation, on behalf of the corporation.
---- Personally known ------------------------------
---- ------ Driver's License Notary Public
---- Other Identification Produced
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----------------- Print or type name of Notary
(SEAL)
