EXHIBIT 10.53
AGREEMENT TO GUARANTY
DEFINITIONS AND RECITALS:
X. X. XXXXXX AND COMPANY, LIMITED, a Hawaii corporation, is herein
called "Xxxxxx."
X. X. XXXXXX HOMES, INC., a Delaware corporation, is herein called
"Homes."
C. Bank of Hawaii (the "Bank") has made two credit facilities (the
"Facilities") available to Homes for construction of buildings and
infrastructures. Homes has requested that the Facilities be amended to
provide for working capital. The Bank has agreed to establish a tranche for
borrowings in each Facility to be used for working capital purposes (the
"Working Capital Tranches") on the condition that Xxxxxx agrees to guarantee
up to $4,000,000 of the payments to be made by Homes under the Working
Capital Tranches.
X. Xxxxxx is willing to provide a guaranty to the Bank subject to the
terms and conditions of this Agreement, including the execution and delivery
to Xxxxxx by Homes of a first mortgage lien on certain fee simple real
property, more particularly described below.
AGREEMENTS:
Now, therefore, intending to be legally bound, Xxxxxx and Homes hereby
agree as follows:
1. AGREEMENT TO GUARANTY. Subject to the satisfaction of the conditions
precedent set forth in paragraph 4 below, Xxxxxx shall guarantee to the Bank
the payment of Homes' obligations under the Working Capital Tranches up to
the aggregate amount of $4,000,000, pursuant to a guaranty document (the
"Guaranty") in form and substance acceptable to Xxxxxx.
2. AGREEMENT TO PAY. Homes shall pay, on Xxxxxx'x demand, in immediately
available United States funds, all amounts paid by Xxxxxx to the Bank under
the Guaranty and all other amounts due to Xxxxxx under the terms of this
Agreement, together with interest on such amounts at the rate of 12% per
annum. Interest shall accrue from the date that Xxxxxx made payment under the
Guaranty or, for other amounts due under this Agreement, from the date of
demand.
3. SECURITY. Homes' obligations under this Agreement shall be secured by
a valid first mortgage lien on certain fee simple property known as
"Kalihiwai Ridge III", located on the Island of Kauai in the State of Hawaii
and more particularly described in Exhibit A, attached hereto and made a part
hereof (the "Property").
4. CONDITIONS PRECEDENT. Xxxxxx'x obligation under this Agreement to
execute and delivery the Guaranty is subject to the satisfaction of all of
the following conditions:
x. Xxxxxx shall review and accept the terms of the Guaranty and any
documents made by and between Homes and the Bank which evidence the Working
Capital Tranches (the "Bank Loan Documents").
x. Xxxxxx shall have obtained the consent of Xxxxxx'x lenders,
First Hawaiian Bank and Prudential Capital Corporation, and the approval of
the Board of Directors of Xxxxxx and Buyco, Inc. to enter into the Guaranty.
c. In connection with the Property, Homes shall execute and deliver
a mortgage and such other related security documents as Xxxxxx may require,
each in form and substance acceptable to Xxxxxx (collectively, the "Security
Documents"), and shall provide Xxxxxx with an ALTA Form Lender's Title
Insurance Policy in the amount of $4,000,000, assuring to Xxxxxx the validity
and first priority of the mortgage lien, and containing such endorsements as
Xxxxxx may require.
d. Homes shall provide Xxxxxx with satisfactory evidence that Homes
has obtained all necessary and appropriate authority, approvals and consents,
including the consent of the Bank if required by the Facilities, to execute
and deliver this Agreement and the Security Documents.
e. Homes shall pay Xxxxxx a guarantee fee of $12,500.
5. CHANGES TO THE BANK LOAN DOCUMENTS. Homes shall promptly give Xxxxxx
notice and a copy of any and all changes to the Bank Loan Documents or to the
Working Capital Tranches and the obligations covered by the Guaranty. If
Xxxxxx determines that any such change is unacceptable to Xxxxxx, Homes shall
make good faith efforts to have the Guaranty released by the Bank within 30
days of Xxxxxx'x determination. If the Bank refuses to release the Guaranty,
Homes will provide Xxxxxx with additional security and/or fees satisfactory
to Xxxxxx.
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6. OBLIGATIONS ABSOLUTE. Homes' obligations under this Agreement to pay
Xxxxxx are absolute and unconditional, notwithstanding (a) the existence of
any claim of set-off, defense or other right which Homes may have at any time
against the Bank, whether in connection with the Facilities or otherwise, or
(b) the unenforceability or invalidity of the Bank Loan Documents or any
documents which evidence or secure the Facilities.
7. DEFAULT. If Homes (a) fails to pay when due any sum due to Xxxxxx
under this Agreement or any of the Security Documents or (b) fails, within 30
days of the date of Xxxxxx'x written notice to Homes, to perform or observe
any other obligation of Homes undertaken in this Agreement or in any of the
Security Documents, Homes shall be in default. Upon the occurrence and
continuation of such an event of default ("Event of Default"), Xxxxxx shall
have the right to exercise all of its remedies under the Security Documents,
including foreclosure, and may also exercise any and all other rights and
remedies, legal or equitable, available to Xxxxxx.
8. RIGHT OF SETOFF. At any time after an Event of Default, Xxxxxx may
set off obligations owed by Xxxxxx to Homes against the obligations of Homes
hereunder, without first resorting to other collateral.
9. FURTHER ASSURANCE. From time to time within five days after Xxxxxx'x
request, Homes will execute and delivery such additional documents and
provide such additional information as may be reasonably requested by Xxxxxx
to carry out the intent of this Agreement.
10. APPLICATION OF PAYMENTS. Payments under this Agreement may be
applied by Xxxxxx to the obligations of Homes under this Agreement and the
Security Documents in any manner Xxxxxx deems appropriate.
11. EXPENSES OF XXXXXX. Homes will, on demand, reimburse to Xxxxxx all
reasonable expenses, including reasonable attorneys' fees, title insurance
premiums, recordation fees (including the Special Mortgage Recording Fee),
and appraisal fees, incurred by Xxxxxx in connection with this Agreement, the
Guaranty, the Security Documents and any amendment, modification, or
enforcement of this Agreement or the Security Documents and the collection or
attempted collection of the indebtedness evidenced by this Agreement, whether
or not legal proceedings are commenced.
12. WAIVER. Homes waives presentment, demand for payment, notice of
dishonor, and any and all other notices or
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demands in connection with the delivery, acceptance, performance, or
enforcement of this Agreement.
13. EXERCISE OF REMEDIES. The failure of Xxxxxx at any time or times to
enforce its rights under this Agreement or the Security Documents shall not
be construed as having in any way or manner modified or waived the same. All
rights and remedies of Xxxxxx are cumulative and concurrent and the exercise
of one right or remedy shall not be deemed a waiver or release of any other
right or remedy.
14. NOTICES. Any notices to be given under this Agreement or the
Security Documents shall be in writing and shall be deemed delivered if
delivered in person or if sent by certified mail, postage prepaid, return
receipt requested, or by FAX, at the following addresses, unless such address
is changed by written notice hereunder:
XXXXXX:
X. Xxxxxx and Company, Limited
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxxx
FAX: (000) 000-0000
HOMES:
X. Xxxxxx Homes, Inc.
00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxx
FAX: (000) 000-0000
15. APPLICABLE LAW. The substantive laws of the State of Hawaii shall
govern the construction of this Agreement and the rights and remedies of the
parties hereto.
16. BINDING EFFECT. This Agreement shall inure to the benefit of the
parties hereto and their respective successors and assigns, and shall be
binding on the parties hereto and their respective successors and assigns.
17. AMENDMENTS; CONSENTS. No amendment, modification, supplement,
termination, or waiver of any provision of this Agreement or the Security
Documents may in any event be effective unless in writing signed by the
parties.
18. SEVERABILITY. If any provision of this Agreement or any of the
Security Documents shall be held
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invalid under any applicable law, such invalidity shall not affect any other
provision that can be given effect without the invalid provision, and, to
this end, the provisions of this Agreement and the Security Documents are
severable.
19. TIME IS OF THE ESSENCE. Time is of the essence under and in respect
of this Agreement.
IN WITNESS WHEREOF, Xxxxxx and Homes have duly executed this Agreement
as of the 4th day of September, 1996.
X. XXXXXX AND COMPANY, LIMITED
By /s/ Xxxx X. Xxxxxx
------------------------------------------
Its Executive Vice President
By /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Its Vice President and Secretary
X. XXXXXX HOMES, INC.
By /s/ X. X. Xxxxxxxx
------------------------------------------
Its
By /s/ Xxxxxx Xxxxx
------------------------------------------
Its
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EXHIBIT A
FIRST: All of that certain parcel of land situate at Kilauea, Hanalei,
Island and County of Kauai, State of Hawaii, containing an area of
688.381 acres, more or less, bearing State of Hawaii tax map key number Fourth
Division, 5-2-002-011, as shown on the tax map attached hereto as
Exhibit "1" and made a part hereof.
SECOND: All of that certain parcel of land situate at Kilauea, Hanalei, Island
and County of Kauai, State of Hawaii, containing an area of 510.153
acres, more or less, bearing State of Hawaii tax map key number Fourth
Division, 5-2-002-012, as shown on the tax map attached hereto as Exhibit
"1" and made a part hereof.
THIRD: All of those certain parcels of land situate at Kilauea, Hanalei,
Island and County of Kauai, State of Hawaii, being portions of the
"Kilauea Agricultural Subdivision, Parcel 14", as shown on the map thereof,
filed in the Bureau of Conveyances of the State of Hawaii as File Plan No.
1643, and more particularly described as follows:
XXX 0, xxxx 26.181 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-001, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
XXX 0, xxxx 25.688 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-002, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
XXX 0, xxxx 25.350 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-003, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
XXX 0, xxxx 10.388 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-004, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
XXX 0, xxxx 10.912 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division,
5-2-018-005, and delineated on the tax map attached hereto as
Exhibit "2" and made a part hereof.
XXX 0, xxxx 10.017 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-006, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
XXX 0, xxxx 10.104 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-007, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
XXX 0, xxxx 10.257 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-008, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
XXX 0, xxxx 10.190 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-009, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
XXX 00, xxxx 10.262 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-010, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
XXX 00, xxxx 25.072 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-011, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
XXX 00, xxxx 27.298 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-012, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
XXX 00, xxxx 3.700 acres, more or less, bearing State of Hawaii
tax map key number Fourth Division, 5-2-018-013, and delineated on the
tax map attached hereto as Exhibit "2" and made a part hereof.
[TAX MAP]
EXHIBIT "1"
[TAX MAP]
EXHIBIT "2"
