EXHIBIT 10.8
GUARANTY
THIS GUARANTY is made as of June 25, 2002, by TECHNICAL OLYMPIC USA,
INC., a Delaware corporation ("Guarantor"), in favor of GUARANTY BANK, a federal
savings bank ("Lender").
RECITALS
1. Preferred Home Mortgage Company ("Borrower") executed in favor of
Lender that certain promissory note dated December 20, 2001, payable to the
order of Lender in the principal amount of $30,000,000 (such promissory note, as
from time to time amended, and all promissory notes given in substitution,
renewal or extension therefor or thereof, in whole or in part, being herein
collectively called the "Note").
2. The Note was executed pursuant to a Credit Agreement dated July 5,
2001 (herein, as from time to time amended, supplemented or restated, called the
"Credit Agreement"), by and between Borrower and Lender, pursuant to which
Lender has agreed to advance funds to Borrower under the Note.
3. It is a condition precedent to Lender's obligation to release Xxxxx
Homes, Inc. from its obligations under the Guaranty dated July 5, 2001 made by
it in favor of Lender, and to continue to advance funds pursuant to the Credit
Agreement that Guarantor shall execute and deliver to Lender a satisfactory
guaranty of Borrower's obligations under the Note and the Credit Agreement.
4. Guarantor owns directly, or indirectly through one or more
subsidiaries, one hundred percent (100%) of the outstanding shares of capital
stock of Borrower.
5. Guarantor has determined that Guarantor's execution, delivery and
performance of this Guaranty may reasonably be expected to benefit Guarantor,
directly or indirectly, and are in the best interests of Guarantor.
NOW, THEREFORE, in consideration of the premises, of the benefits which
will inure to Guarantor from Lender's advances of funds to Borrower under the
Credit Agreement, and of Ten Dollars and other good and valuable consideration,
the receipt and sufficiency of all of which are hereby acknowledged, and in
order to induce Lender to advance funds under the Credit Agreement, Guarantor
hereby agrees with Lender as follows:
AGREEMENTS
Section 1. Definitions. Reference is hereby made to the Credit
Agreement for all purposes. All terms used in this Guaranty which are defined in
the Credit Agreement and not otherwise defined herein shall have the same
meanings when used herein. All references herein to any Obligation Document,
Loan Document, or other document or instrument refer to the same as from time to
time amended, supplemented or restated. As used herein the following terms shall
have the following meanings:
"Obligations" means collectively all of the indebtedness, obligations,
and undertakings which are guaranteed by Guarantor and described in subsections
(a) and (b) of Section 2.
"Obligation Documents" means this Guaranty, the Note, the Credit
Agreement, the Loan Documents, all other documents and instruments under, by
reason of which, or pursuant to which any or all of the Obligations are
evidenced, governed, secured, or otherwise dealt with, and all other documents,
instruments, agreements, certificates, and other writings heretofore or
hereafter delivered in connection herewith or therewith.
"Obligors" means Borrower, Guarantor and any other endorsers,
guarantors or obligors, primary or secondary, of any or all of the Obligations.
"Security" means any rights, properties, or interests of Lender, under
the Obligation Documents or otherwise, which provide recourse or other benefits
to Lender in connection with the Obligations or the non-payment or
non-performance thereof, including collateral (whether real or personal,
tangible or intangible) in which Lender has rights under or pursuant to any
Obligation Documents, guaranties of the payment or performance of any
Obligation, bonds, surety agreements, keep-well agreements, letters of credit,
rights of subrogation, rights of offset, and rights pursuant to which other
claims are subordinated to the Obligations.
Section 2. Guaranty.
(a) Guarantor hereby irrevocably, absolutely, and unconditionally
guarantees to Lender the prompt, complete, and full payment when due, and no
matter how the same shall become due, of:
(i) the Note, including all principal, all interest thereon
and all other sums payable thereunder; and
(ii) All other sums payable under the other Obligation
Documents, whether for principal, interest, fees or otherwise; and
Without limiting the generality of the foregoing, Guarantor's liability
hereunder shall extend to and include all post-petition interest, expenses, and
other duties and liabilities of Borrower described above in this subsection (a),
or below in the following subsection (b), which would be owed by Borrower but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization, or similar proceeding involving Borrower.
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(b) Guarantor hereby irrevocably, absolutely, and unconditionally
guarantees to Lender the prompt, complete and full performance, when due, and no
matter how the same shall become due, of all obligations and undertakings of
Borrower to Lender under, by reason of, or pursuant to any of the Obligation
Documents.
(c) If Borrower shall for any reason fail to pay any Obligation, as and
when such Obligation shall become due and payable, whether at its stated
maturity, as a result of the exercise of any power to accelerate, or otherwise,
Guarantor will, forthwith upon demand by Lender, pay such Obligation in full to
Lender. If Borrower shall for any reason fail to perform promptly any
Obligation, Guarantor will, forthwith upon demand by Lender, cause such
Obligation to be performed or, if specified by Lender, provide sufficient funds,
in such amount and manner as Lender shall in good faith reasonably determine,
for the prompt, full and faithful performance of such Obligation by Lender or
such other Person as Lender shall designate.
(d) If either Borrower or Guarantor fails to pay or perform any
Obligation as described in the immediately preceding subsections (a), (b), or
(c) Guarantor will incur the additional obligation to pay to Lender, and
Guarantor will forthwith upon demand by Lender pay to Lender, the amount of any
and all expenses, including fees and disbursements of Lender's counsel and of
any experts or agents retained by Lender, which Lender may reasonably incur as a
result of such failure.
(e) As between Guarantor and Lender, this Guaranty shall be considered
a primary and liquidated liability of Guarantor.
Section 3. Unconditional Guaranty.
(a) No action which Lender may take or omit to take in connection with
any of the Obligation Documents, any of the Obligations (or any other
indebtedness owing by Borrower to Lender), or any Security, and no course of
dealing of Lender with any Obligor or any other Person, shall release or
diminish Guarantor's obligations, liabilities, agreements or duties hereunder,
affect this Guaranty in any way, or afford Guarantor any recourse against
Lender, regardless of whether any such action or inaction may increase any risks
to or liabilities of Lender or any Obligor or increase any risk to or diminish
any safeguard of any Security. Without limiting the foregoing, Guarantor hereby
expressly agrees that Lender may, from time to time, without notice to or the
consent of Guarantor, do any or all of the following:
(i) Amend, change or modify, in whole or in part, any one or
more of the Obligation Documents (other than this Guaranty) and give or
refuse to give any waivers or other indulgences with respect to the
Obligation Documents.
(ii) Neglect, delay, fail, or refuse to take or prosecute any
action for the collection or enforcement of any of the Obligations, to
foreclose or take or prosecute any action in connection with any
Security or Obligation Document, to bring suit against any Obligor or
any other Person, or to take any other action concerning the
Obligations or the Obligation Documents.
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(iii) Accelerate, change, rearrange, extend, or renew the
time, rate, terms, or manner for payment or performance of any one or
more of the Obligations (whether for principal, interest, fees,
expenses, indemnifications, affirmative or negative covenants, or
otherwise).
(iv) Compromise or settle any unpaid or unperformed Obligation
or any other obligation or amount due or owing, or claimed to be due or
owing, under any one or more of the Obligation Documents.
(v) Take, exchange, amend, eliminate, surrender, release, or
subordinate any or all Security for any or all of the Obligations,
accept additional or substituted Security therefor, and perfect or fail
to perfect Lender's rights in any or all Security.
(vi) Discharge, release, substitute or add Obligors.
(vii) Apply all monies received from Obligors or others, or
from any Security for any of the Obligations, as Lender may determine
to be in its best interest, without in any way being required to
xxxxxxxx Security or assets or to apply all or any part of such monies
upon any particular Obligations.
(b) No action or inaction of any Obligor or any other Person, and no
change of law or circumstances, shall release or diminish Guarantor's
obligations, liabilities, agreements, or duties hereunder, affect this Guaranty
in any way, or afford Guarantor any recourse against Lender. Without limiting
the foregoing, the obligations, liabilities, agreements, and duties of Guarantor
under this Guaranty shall not be released, diminished, impaired, reduced, or
affected by the occurrence of any or all of the following from time to time,
even if occurring without notice to or without the consent of Guarantor:
(i) Any voluntary or involuntary liquidation, dissolution,
sale of all or substantially all assets, marshalling of assets or
liabilities, receivership, conservatorship, assignment for the benefit
of creditors, insolvency, bankruptcy, reorganization, arrangement, or
composition of any Obligor or any other proceedings involving any
Obligor or any of the assets of any Obligor under laws for the
protection of debtors, or any discharge, impairment, modification,
release, or limitation of the liability of, or stay of actions or lien
enforcement proceedings against, any Obligor, any properties of any
Obligor, or the estate in bankruptcy of any Obligor in the course of or
resulting from any such proceedings.
(ii) The failure by Lender to file or enforce a claim in any
proceeding described in the immediately preceding subsection (i) or to
take any other action in any proceeding to which any Obligor is a
party.
(iii) The release by operation of law of any Obligor from any
of the Obligations or any other obligations to Lender.
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(iv) The invalidity, deficiency, illegality, or
unenforceability of any of the Obligations or the Obligation Documents,
in whole or in part, any bar by any statute of limitations or other law
of recovery on any of the Obligations, or any defense or excuse for
failure to perform on account of force majeure, act of God, casualty,
impossibility, impracticability, or other defense or excuse whatsoever.
(v) The failure of any Obligor or any other Person to sign any
guaranty or other instrument or agreement within the contemplation of
any Obligor or Lender.
(vi) The fact that Guarantor may have incurred directly part
of the Obligations or is otherwise primarily liable therefor.
(vii) Without limiting any of the foregoing, any fact or event
(whether or not similar to any of the foregoing) which in the absence
of this provision would or might constitute or afford a legal or
equitable discharge or release of or defense to a guarantor or surety
other than the actual payment and performance by Guarantor under this
Guaranty.
(c) Lender may invoke the benefits of this Guaranty before pursuing any
remedies against any Obligor or any other Person and before proceeding against
any Security now or hereafter existing for the payment or performance of any of
the Obligations. Lender may maintain an action against Guarantor on this
Guaranty without joining any other Obligor therein and without bringing a
separate action against any other Obligor.
(d) If any payment to Lender by any Obligor is held to constitute a
preference or a voidable transfer under applicable state or federal laws, or if
for any other reason Lender is required to refund such payment to the payor
thereof or to pay the amount thereof to any other Person, such payment to Lender
shall not constitute a release of Guarantor from any liability hereunder, and
Guarantor agrees to pay such amount to Lender on demand and agrees and
acknowledges that this Guaranty shall continue to be effective or shall be
reinstated, as the case may be, to the extent of any such payment or payments.
Any transfer by subrogation which is made as contemplated in Section 6 prior to
any such payment or payments shall (regardless of the terms of such transfer) be
automatically voided upon the making of any such payment or payments, and all
rights so transferred shall thereupon revert to and be vested in Lender.
(e) This is a continuing guaranty and shall apply to and cover all
Obligations and renewals and extensions thereof and substitutions therefor from
time to time.
Section 4. Waiver. Guarantor hereby waives, with respect to the
Obligations, this Guaranty, and the other Obligation Documents:
(a) notice of the incurrence of any Obligation by Borrower, and notice
of any kind concerning the assets, liabilities, financial condition,
creditworthiness, businesses, prospects, or other affairs of Borrower (it being
understood and agreed that: (i) Guarantor shall take full responsibility for
informing itself of such matters, (ii) Lender shall have no responsibility of
any kind to inform Guarantor of such matters, and (iii) Lender is hereby
authorized to assume that Guarantor, by virtue of its relationships with
Borrower which are independent of this Guaranty,
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has full and complete knowledge of such matters at each time when Lender extends
credit to Borrower or takes any other action which may change or increase
Guarantor's liabilities or losses hereunder).
(b) notice that Lender, any Obligor, or any other Person has taken or
omitted to take any action under any Obligation Document or any other agreement
or instrument relating thereto or relating to any Obligation.
(c) notice of acceptance of this Guaranty and all rights of Guarantor
under Section 34.02 of the Texas Business and Commerce Code, as amended.
(d) default, demand, presentment for payment, and notice of default,
demand, dishonor, nonpayment, or nonperformance.
(e) notice of intention to accelerate, notice of acceleration, protest,
notice of protest, notice of any exercise of remedies (as described in the
following Section 5 or otherwise), and all other notices of any kind whatsoever.
Section 5. Exercise of Remedies. Lender shall have the right to
enforce, from time to time, in any order and at Lender's sole discretion, any
rights, powers and remedies which Lender may have under the Obligation Documents
or otherwise, including judicial foreclosure, the exercise of rights of power of
sale, the taking of a deed or assignment in lieu of foreclosure, the appointment
of a receiver to collect rents, issues and profits, the exercise of remedies
against personal property, or the enforcement of any assignment of leases,
rentals, oil or gas production, or other properties or rights, whether real or
personal, tangible or intangible; and Guarantor shall be liable to Lender
hereunder for any deficiency resulting from the exercise by Lender of any such
right or remedy even though any rights which Guarantor may have against Borrower
or others may be destroyed or diminished by exercise of any such right or
remedy. No failure on the part of Lender to exercise, and no delay in
exercising, any right hereunder or under any other Obligation Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right preclude any other or further exercise thereof or the exercise of any
other right. The rights, powers and remedies of Lender provided herein and in
the other Obligation Documents are cumulative and are in addition to, and not
exclusive of, any other rights, powers or remedies provided by law or in equity.
The rights of Lender hereunder are not conditional or contingent on any attempt
by Lender to exercise any of its rights under any other Obligation Document
against any Obligor or any other Person.
Section 6. Limited Subrogation. Until all of the Obligations have been
paid and performed in full Guarantor shall have no right to exercise any right
of subrogation, reimbursement, indemnity, exoneration, contribution or any other
claim which it may now or hereafter have against or to any Obligor or any
Security in connection with this Guaranty (including any right of subrogation
under Section 34.04 of the Texas Business and Commerce Code, as amended), and
Guarantor hereby waives any rights to enforce any remedy which Guarantor may
have against Borrower and any right to participate in any Security until such
time. If any amount shall be paid to Guarantor on account of any such
subrogation or other rights, any such other remedy, or any Security at any time
when all of the Obligations and all other expenses guaranteed
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pursuant hereto shall not have been paid in full, such amount shall be held in
trust for the benefit of Lender, shall be segregated from the other funds of
Guarantor and shall forthwith be paid over to Lender to be held by Lender as
collateral for, or then or at any time thereafter applied in whole or in part by
Lender against, all or any portion of the Obligations, whether matured or
unmatured, in such order as Lender shall elect. If Guarantor shall make payment
to Lender of all or any portion of the Obligations and if all of the Obligations
shall be finally paid in full, Lender will, at Guarantor's request and expense,
execute and deliver to Guarantor (without recourse, representation or warranty)
appropriate documents necessary to evidence the transfer by subrogation to
Guarantor of an interest in the Obligations resulting from such payment by
Guarantor; provided that such transfer shall be subject to Section 3(d) above
and that without the consent of Lender (which Lender may withhold in its
discretion) Guarantor shall not have the right to be subrogated to any claim or
right against any Obligor which has become owned by Lender, whose ownership has
otherwise changed in the course of enforcement of the Obligation Documents, or
which Lender otherwise has released or wishes to release from its Obligations.
Section 7. Assigns. Guarantor's rights or obligations hereunder may not
be assigned or delegated, but this Guaranty and such obligations shall pass to
and be fully binding upon the successors of Guarantor, as well as Guarantor.
This Guaranty shall apply to and inure to the benefit of Lender and its
successors or assigns. Without limiting the generality of the immediately
preceding sentence, Lender may assign, grant a participation in, or otherwise
transfer any Obligation held by it or any portion thereof, and Lender may assign
or otherwise transfer its rights or any portion thereof under any Obligation
Document, to any other Person, and such other Person shall thereupon become
vested with all of the benefits in respect thereof granted to Lender hereunder
unless otherwise expressly provided by Lender in connection with such assignment
or transfer.
Section 8. Subordination. Guarantor hereby subordinates and makes
inferior to the Obligations any and all indebtedness now or at any time
hereafter owed by Borrower to Guarantor. Guarantor agrees that after the
occurrence of any Default or Event of Default it will neither permit Borrower to
repay such indebtedness or any part thereof nor accept payment from Borrower of
such indebtedness or any part thereof without the prior written consent of
Lender. If Guarantor receives any such payment without the prior written consent
of Lender, the amount so paid shall be held in trust for the benefit of Lender,
shall be segregated from the other funds of Guarantor, and shall forthwith be
paid over to Lender to be held by Lender as collateral for, or then or at any
time thereafter applied in whole or in part by Lender against, all or any
portions of the Obligations, whether matured or unmatured, in such order as
Lender shall elect.
Section 9. Offset. Guarantor hereby grants to Lender a right of offset
to secure the payment of the Obligations and Guarantor's obligations and
liabilities hereunder, which right of offset shall be upon any and all monies,
securities and other property (and the proceeds therefrom) of Guarantor now or
hereafter held or received by or in transit to Lender from or for the account of
Guarantor, whether for safekeeping, custody, pledge, transmission, collection or
otherwise, and also upon any and all deposits (general or special), credits and
claims of Guarantor at any time existing against Lender. Upon the occurrence of
any Default or Event of Default Lender is hereby authorized at any time and from
time to time, without notice to Guarantor, to offset, appropriate and apply any
and all items hereinabove referred to against the
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Obligations and Guarantor's obligations and liabilities hereunder irrespective
of whether or not Lender shall have made any demand under this Guaranty and
although such obligations and liabilities may be contingent or unmatured. Lender
agrees promptly to notify Guarantor after any such offset and application made
by Lender, provided that the failure to give such notice shall not affect the
validity of such offset and application. The rights of Lender under this section
are in addition to, and shall not be limited by, any other rights and remedies
(including other rights of offset) which Lender may have.
Section 10. Representations and Warranties. Guarantor hereby represents
and warrants to Lender as follows:
(a) The Recitals at the beginning of this Guaranty are true and correct
in all respects.
(b) Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation as set forth in
the Recitals to this Guaranty; and Guarantor has all requisite power and
authority to execute, deliver and perform this Guaranty.
(c) The execution, delivery and performance by Guarantor of this
Guaranty have been duly authorized by all necessary corporate action and do not
and will not contravene its certificate or articles of incorporation or bylaws.
(d) The execution, delivery and performance by Guarantor of this
Guaranty do not and will not contravene any law or governmental regulation or
any contractual restriction binding on or affecting Guarantor or any of its
Affiliates or properties, and do not and will not result in or require the
creation of any lien, security interest or other charge or encumbrance upon or
with respect to any of its properties.
(e) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or other regulatory body or third
party is required for the due execution, delivery and performance by Guarantor
of this Guaranty.
(f) This Guaranty is a legal, valid and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms except as
limited by bankruptcy, insolvency or similar laws of general application
relating to the enforcement of creditors' rights and general principles of
equity.
(g) There is no action, suit or proceeding pending or, to the knowledge
of Guarantor, threatened against or otherwise affecting Guarantor before any
court, arbitrator or governmental department, commission, board, bureau, agency
or instrumentality which may materially and adversely affect Guarantor's
financial condition or its ability to perform its obligations hereunder.
(h) The direct or indirect value of the consideration received and to
be received by Guarantor in connection herewith is reasonably worth at least as
much as the liability and obligations of Guarantor hereunder, and the incurrence
of such liability and obligations in return for such consideration may
reasonably be expected to benefit Guarantor, directly or indirectly.
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(i) Guarantor is not "insolvent" on the date hereof (that is, the sum
of Guarantor's absolute and contingent liabilities, including the Obligations,
does not exceed the fair market value of Guarantor's assets). Guarantor's
capital is adequate for the businesses in which Guarantor is engaged and intends
to be engaged. Guarantor has not incurred (whether hereby or otherwise), nor
does Guarantor intend to incur or believe that it will incur, debts which will
be beyond its ability to pay as such debts mature.
(j) All balance sheets, earning statements, financial data and other
information concerning Guarantor which have been furnished to Lender to induce
it to accept this Guaranty (or otherwise furnished to Lender in connection with
the transactions contemplated hereby or associated herewith) fairly represent
the financial condition of Guarantor as of the dates and the results of
Guarantor's operations for the periods for which the same are furnished. None of
such balance sheets, earnings and cash flow statements, financial data and other
information contains any untrue statement of a material fact or omits to state
any material fact which is necessary to make any statements contained therein
not misleading.
Section 11. No Oral Change. No amendment of any provision of this
Guaranty shall be effective unless it is in writing and signed by Guarantor and
Lender, and no waiver of any provision of this Guaranty, and no consent to any
departure by Guarantor therefrom, shall be effective unless it is in writing and
signed by Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 12. Invalidity of Particular Provisions. If any term or
provision of this Guaranty shall be determined to be illegal or unenforceable
all other terms and provisions hereof shall nevertheless remain effective and
shall be enforced to the fullest extent permitted by applicable law.
Section 13. Headings and References. The headings used herein are for
purposes of convenience only and shall not be used in construing the provisions
hereof. The words "this Guaranty," "this instrument," "herein," "hereof,"
"hereby" and words of similar import refer to this Guaranty as a whole and not
to any particular subdivision unless expressly so limited. The phrases "this
section" and "this subsection" and similar phrases refer only to the
subdivisions hereof in which such phrases occur. The word "or" is not exclusive,
and the word "including" (in its various forms) means "including without
limitation". Pronouns in masculine, feminine and neuter genders shall be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa, unless the context otherwise
requires.
Section 14. Term. This Guaranty shall be irrevocable until all of the
Obligations have been completely and finally paid and performed, Lender has no
obligation to make any loans or other advances to Borrower, and all obligations
and undertakings of Borrower under, by reason of, or pursuant to the Obligation
Documents have been completely performed, and this Guaranty is thereafter
subject to reinstatement as provided in Section 3(d). All extensions of credit
and financial accommodations heretofore or hereafter made by Lender to Borrower
shall be conclusively presumed to have been made in acceptance hereof and in
reliance hereon.
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Section 15. Notices. Any notice or communication required or permitted
hereunder shall be given in writing, sent by personal delivery, by telecopy, by
delivery service with proof of delivery, or by registered or certified United
States mail, postage prepaid, addressed to the appropriate party as follows:
To Guarantor: 0000 Xxxxxxxxx Xxxx., Xxxxx 000 X
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx XxXxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxx
Technical Olympic U.S.A., Inc.
0000 Xxxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx 00000
FAX: (000) 000-0000
TEL: (000) 000-0000
To Lender: 0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
or to such other address or to the attention of such other individual as
hereafter shall be designated in writing by the applicable party sent in
accordance herewith. Any such notice or communication shall be deemed to have
been given (a) in the case of personal delivery or delivery service, as of the
date of first attempted delivery at the address or in the manner provided
herein, (b) in the case of telecopy, upon receipt, or (b) in the case of
registered or certified United States mail, three days after deposit in the
mail.
Section 16. Limitation on Interest. Lender and Guarantor intend to
contract in strict compliance with applicable usury law from time to time in
effect, and the provisions of the Credit Agreement limiting the interest for
which Guarantor is obligated are expressly incorporated herein by reference.
Section 17. Loan Document. This Guaranty is a Loan Document, as defined
in the Credit Agreement, and is subject to the provisions of the Credit
Agreement governing Loan Documents. Guarantor hereby ratifies, confirms and
approves the Credit Agreement and the other Loan Documents and, in particular,
any provisions thereof which relate to Guarantor.
Section 18. Counterparts. This Guaranty may be executed in any number
of counterparts, each of which when so executed shall be deemed to constitute
one and the same Guaranty. This Agreement may be validly executed and delivered
by facsimile or other electronic transmission.
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Section 19. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES ITS
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE
PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE 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 AGREEMENT
OR ANY OTHER LOAN DOCUMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT AND ANY OTHER LOAN DOCUMENTS.
Section 20. CONSEQUENTIAL DAMAGES. NEITHER GUARANTOR NOR LENDER SHALL
HAVE ANY LIABILITY WITH RESPECT TO, AND EACH SUCH PERSON HEREBY WAIVES, RELEASES
AND AGREES NOT TO XXX EACH OTHER SUCH PERSON FOR, ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES SUFFERED BY SUCH OTHER PERSON IN CONNECTION WITH ANY CLAIM
RELATED TO THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREIN.
Section 21. CHOICE OF LAW; VENUE. THIS AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF TEXAS. ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT AND MAINTAINED IN THE
APPLICABLE STATE OR FEDERAL COURT IN DALLAS COUNTY, TEXAS. THIS AGREEMENT IS
PERFORMABLE IN DALLAS COUNTY, TEXAS AND THE PARTIES HERETO WAIVE ANY RIGHT THEY
MAY HAVE TO BE SUED ELSEWHERE. THE PARTIES HERETO CONSENT TO PERSONAL
JURISDICTION IN DALLAS COUNTY, TEXAS.
Section 22. ENTIRE AGREEMENT. THE GUARANTY AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND THERETO AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty
as of the date first written above.
TECHNICAL OLYMPIC USA, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
Vice President
