EXHIBIT 10.04
GUARANTY OF LOAN
CYTATION CORP.
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any loan or other financial accommodation heretofore or
hereafter at any time made or granted to DEER VALLEY HOMEBUILDERS, INC., an
Alabama corporation (the "Borrower"), by FIFTH THIRD BANK, an Ohio banking
corporation (herein, together with its successors and assigns, the "Lender"),
the undersigned agrees that:
1. Undersigned hereby unconditionally guarantees the full and prompt
payment when due, whether by acceleration or otherwise, and at all times
hereafter, of:
(a) A promissory note (the "Note") of even date herewith secured
by a mortgage (the "Mortgage") on real estate in Xxxxxx and Xxxxx Counties,
Alabama, in the principal amount of $2,000,000.00 plus future advances
thereunder, as provided in the Note and Mortgage, executed by Borrower and
payable to the order of Lender;
(b) Any and all extensions or renewals of the Note, and all
expenses, including attorneys' fees, incurred in the collection thereof, the
enforcement of rights under any security therefor and the enforcement hereof,
including Lender's attorneys' fees and costs of any litigation and appeals
thereof; and
(c) Any indebtedness resulting from advances made on Borrower's
behalf by Lender to protect or preserve the priority and security of its first
lien (all the foregoing items, (a), (b) and (c), being hereinafter called the
"Liabilities").
2. Undersigned further unconditionally guarantees the faithful, prompt
and complete compliance by Borrower with all terms and conditions of the Note,
the Mortgage securing payment of the Liabilities and all other agreements,
documents and instruments securing payment of the Liabilities or related thereto
(such Note, Mortgage and all other instruments collectively referred to
hereinafter as the "Loan Document" or "Loan Documents") and the payment of all
costs, expenses, charges and other expenditures required to be made by Borrower,
or which Borrower agrees to make, under the terms and provisions of any Loan
Document.
3. In the event Borrower fails to perform its covenants, agreements and
undertakings as provided in any Loan Document, the undersigned shall
immediately, with or without the written demand of Lender, promptly, and with
due diligence, do and perform for the benefit of Lender, all of such covenants,
agreements and undertakings as if they constituted the direct and primary
obligations of the undersigned.
4. The obligations of the undersigned hereunder are independent of the
obligations of Borrower, and a separate action or actions for payment, damages
or performance may be brought and prosecuted against the undersigned, or any one
of them, whether or not an action is brought against Borrower or the security
for Borrower's obligations, and whether or not Borrower be joined in any such
action or actions, and whether or not notice be given or demand be made upon
Borrower.
5. Undersigned hereby transfers and conveys to Lender any and all
balances, credits, deposits, accounts, items and monies of the undersigned now
or hereafter in the possession or control of, or otherwise with, Lender; and
Lender is hereby given a first lien upon, and a security interest in, all
property of the undersigned of every kind and description now or hereafter in
the possession or control of Lender for any reason, including all dividends and
distributions on or other rights in connection therewith.
6. Lender may, without demand or notice of any kind, at any time when
any amount shall be due and payable hereunder by any of the undersigned,
appropriate and apply toward the payment of such amount, and in such order of
application as Lender may from time to time elect, any property, balances,
credits, deposits, accounts, items or monies of such undersigned in the
possession or control of Lender for any purpose. Lender may without notice of
any kind, accept an amount less than the total amount then due without waiving
any remaining defaults or any remedies hereunder.
7. Lender may, from time to time, without notice to the undersigned and
without affecting, diminishing or releasing the liability of the undersigned:
(a) Retain or obtain a security interest in any property to secure
any of the Liabilities or any obligation hereunder;
(b) Retain or obtain the primary or secondary liability of any
party or parties, in addition to the undersigned, with respect to any of the
Liabilities;
(c) Extend or renew for any period (whether or not longer than the
original period), alter or exchange any of the Liabilities;
(d) Release or compromise any liability of any of the undersigned
hereunder or any liability of any other party or parties primarily or
secondarily liable on any of the Liabilities;
(e) Release its security interest, if any, in all or any property
securing any of the Liabilities or any obligation hereunder and permit any
substitution or exchange for any such property;
(f) Resort to the undersigned for payment of any of the
Liabilities, or any portion thereof, whether or not Lender shall have resorted
to any property securing any of the Liabilities or any obligation hereunder or
shall have proceeded against any other of the undersigned or any other party
primarily or secondarily liable on any of the Liabilities; and
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(g) Alter, extend, change, modify, release or cancel any covenant,
agreement or provision contained in any or all Loan Documents.
8. Any amount received by Lender from whatever source and applied by it
toward the payment of the Liabilities shall be applied in such order of
application as Lender may from time to time elect.
9. The undersigned hereby expressly waives:
(a) Notice of the acceptance of this Guaranty;
(b) Notice of the existence or creation of any Loan Document or
all or any of the Liabilities;
(c) Presentment, demand, notice of dishonor, protest and all other
notices whatever;
(d) All diligence on the part of Lender in collection or
protection of, or realization upon, any security for any of the Liabilities or
in enforcing any remedy available to it under any Loan Document; and,
(e) Any and all defenses based on suretyship or impairment of
collateral.
10. The creation or existence from time to time of Liabilities in
excess of the amount to which the right of recovery under this Guaranty is, if
any, limited is hereby authorized, without notice to the undersigned (or any of
them), and shall in no way affect or impair this Guaranty.
11. Lender may, regardless of any default thereunder, without notice of
any kind, sell, assign or transfer all or any of the Liabilities, and in such
event each and every immediate and successive assignee, transferee or holder of
all or any of the Liabilities shall have the right to enforce this Guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits. Lender shall have an unimpaired right,
prior and superior to that of any such assignee, transferee or holder, to
enforce this Guaranty for the benefit of Lender, as to so much of the
Liabilities as it has not sold, assigned or transferred.
12. No delay or failure on the part of Lender in the exercise of any
right or remedy shall operate as a waiver thereof and no single or partial
exercise by Lender of any right or remedy herein shall preclude other or further
exercise thereof or the exercise of any other right or remedy whether contained
herein or in the Note, Mortgage or any other Loan Document. No action of Lender
permitted hereunder shall in any way impair or affect this Guaranty. No right
or power of the Borrower or anyone else to assert any claim or defense as to the
invalidity or unenforceability of any Loan Document or of the Liabilities shall
impair or affect the obligations of the undersigned hereunder. Until all of the
Liabilities shall have been paid to Lender in full, the undersigned shall have
no right to subrogation, and until such time, the undersigned 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.
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13. It is fully understood that until each and every one of the
covenants and agreements of this Guaranty are fully performed, the undersigned's
obligations shall not be released, in whole or in part, by any action or thing
which might, but for this provision of this instrument, be deemed a legal or
equitable discharge of a surety or guarantor, or by reason of any waiver,
extension, modification, forbearance or delay or other act or omission of Lender
or its failure to proceed promptly or otherwise, or by reason of any action
taken or omitted by Lender, whether or not such action or failure to act varies
or increases the risk of or affects the rights or remedies of the undersigned,
or by reason of any further dealings between Borrower, Lender or any other
guarantor, and the undersigned hereby expressly waives and surrenders any
defense to its liability hereunder based upon any of the foregoing acts,
omissions, things, agreements or waivers of any of them; it being the purpose
and intent of the parties hereto that the covenants, agreements and all
obligations hereunder are absolute, unconditional and irrevocable under any and
all circumstances, except as provided hereinafter.
14. Any notice, demand or request by Lender, its successors or assigns
to the undersigned shall be in writing and shall be deemed to have been duly
given or made if either delivered personally to the undersigned or mailed by
certified or registered mail addressed to the undersigned at the address for
such guarantor specified below:
Cytation Corp.
Attn: Xxxxxxx X. Xxxxxxx, President
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15. During the term of the Note, the Guarantor shall provide to the
Lender on an annual basis within 120 days of each year-end, a financial
statement on such forms as Lender shall prescribe, and a copy of Guarantor's
federal tax return for the most recent fiscal year end within thirty (30) days
of filing.
16. Provided that no default (as that term is defined in the Mortgage
heretofore mentioned) then exists under any Loan Document, this Guaranty shall
terminate when, and only when, Borrower has paid to Lender the moneys borrowed
under the Note and all of the Liabilities, and has performed and complied with
all the stipulations, agreements, conditions and covenants of the Loan
Documents. When such conditions have been met, Lender will upon request furnish
written cancellation of this Guaranty.
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17. This Guaranty shall inure to the benefit of Lender, its successors
and assigns, and shall bind the undersigned together with its successors and
assigns. If more than one party shall execute this Guaranty, the term
"undersigned" shall mean all parties executing this Guaranty, and all such
parties shall be jointly and severally obligated hereunder.
18. This Guaranty shall be construed in accordance with the laws of the
State of Florida, and such laws shall govern the interpretation, construction
and enforcement hereof. Wherever possible, each provision of this Guaranty
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision of the remaining provisions of this Guaranty.
19. Legal action on any claim, whether contract or tort, which arises
out of or relates to the obligations guaranteed hereunder shall be brought and
maintained exclusively in Hillsborough County, Florida. In any such legal
action, Lender shall be entitled to an award of its reasonable attorneys' fees
and costs, including fees and costs on appeal.
20. WAIVER OF JURY TRIAL. GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY, THE
NOTE AND ANY LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE LENDER TO MAKE THE LOAN AND EXTENSIONS OF CREDIT TO BORROWER.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
day of May, 2006.
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WITNESSES: CYTATION CORP.,
a Delaware corporation
----------------------------- By: /s/ Xxxxxxx X. Xxxxxxx
Signature of Witness -----------------------------------
Xxxxxxx X. Xxxxxxx, as its President
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Print or type name of Witness (CORPORATE SEAL)
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Signature of Witness
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Print or type name of Witness
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STATE OF
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COUNTY OF
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The foregoing instrument was acknowledged before me this _____ day of May,
2006, by Xxxxxxx X. Xxxxxxx, as President of CYTATION CORP., a Delaware
corporation, on behalf of the corporation.
Personally known -----------------------------------
--- Notary Public
Driver's License (St: )
--- ----
Other Identification Produced
---
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Print or type name of Notary
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(SEAL)
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