Exhibit 10.4
MODIFICATION AND REAFFIRMATION OF GUARANTY AND ENVIRONMENTAL INDEMNITY AGREEMENT
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THIS MODIFICATION AND REAFFIRMATION OF GUARANTY AND ENVIRONMENTAL INDEMNITY
AGREEMENT is executed as of the 22nd day of November, 2006, by XXXXXXX X. XXXXXX
having an office at 000 Xxxxxxxx Xxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxx 00000,
and AMERICAN LEISURE HOLDINGS, INC., a Nevada corporation (collectively, jointly
and severally, the "Guarantor"), in favor of STANFORD INTERNATIONAL BANK, LTD.,
having an office at Xx. 00, Xxxxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxx, Xxxx Xxxxxx (the
"Lender").
WITNESSETH, THAT:
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WHEREAS, the Lender has previously extended a $8,000,000.00 loan
(hereinafter referred to as the "Existing Loan"), to XXXXX CREEK ACQUISITION
COMPANY, LLC, a Florida limited liability company (hereinafter referred to as
"Borrower"), and
WHEREAS, the Existing Loan is evidenced by a Promissory Note dated July 8,
2005 in the amount of $7,150,000.00 as amended by that certain Renewed, Amended
and Increased Promissory Note dated January 4, 2006 in the amount of
$8,000,000.00 and secured by: (i) that certain Mortgage and Security Agreement,
recorded in Official Records Book 2855, at Page 1243 (the "Mortgage"); (ii) an
Assignment of Leases, Rents and Profits, recorded in Official Records Book 2855,
Page 1280 (the "Assignment"); and (iii) a UCC-1 Financing Statement recorded in
Official Records Book 2855, Page 1291 (the "Financing Statement"); all of the
foregoing modified by that certain Mortgage Modification Agreement and Future
Advance Certificate recorded in Official Records Book 3034, at Page 2915, all of
the foregoing instruments being filed amongst the Public Records of Osceola
County, Florida; and (iv) other loan documents executed in connection with the
Existing Loan (the "Existing Loan Documents"); and
WHEREAS, the Guarantor has previously guaranteed the prompt payment and
performance of the Existing Loan, pursuant to the terms that certain Unlimited
Continuing and Unconditional Guaranty executed by the Guarantor dated July 8,
2005 and as modified and reaffirmed by that certain Modification and
Reaffirmation of Guaranty and Environmental Indemnity Agreement dated the 5th
day of January, 2006 (collectively, the "Guaranty"), and
WHEREAS, the Guarantor has previously agreed to indemnify and hold Lender
harmless from any environmental damage, pursuant to the terms of that certain
Environmental Indemnity Agreement dated July 8, 2005 and as modified and
reaffirmed by that certain Modification and Reaffirmation of Guaranty and
Environmental Indemnity Agreement dated the 5th day of January, 2006
(collectively, the "Indemnity Agreement") in connection with the Existing Loan,
and
WHEREAS, the Borrower has requested the Lender to modify the Existing Loan
by granting a $4,300,000.00 future advance so as to increase the Existing Loan
to $12,300,000.00 (the "New Loan"), and as a condition precedent to the
modification of the Existing Loan, the Lender has required the Guarantor to
modify and reaffirm the terms of the Guarantor's Guaranty and Indemnity
Agreement with regard to the New Loan, and
WHEREAS, under the New Loan the Borrower has executed certain documents
modifying the Existing Loan Documents including but not limited to a Second
Renewed, Amended and Increased Promissory Note in the amount of $12,300,000.00,
a Second Mortgage Modification Agreement and Future Advance Certificate,
collectively the "New Loan Documents", and
WHEREAS, the Existing Loan as modified by the New Loan shall be referred to
as the "Loan", and
WHEREAS, the Existing Loan Documents as modified by the New Loan Documents
shall be collectively referred to as the "Loan Documents", and
WHEREAS, it is in the best interests of the Guarantor to facilitate the
modification of the Existing Loan and the Lender to make the New Loan and the
resulting Loan, and
NOW, THEREFORE, for valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, and to induce the Lender to modify the Existing
Loan and to make the New Loan and the resulting Loan, the Guarantor agrees as
follows:
1. RECITALS: The Guarantor acknowledges that each of the foregoing recitals
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is true and correct. The foregoing recitals are hereby incorporated into this
Agreement and made a material part hereof by this express reference.
2. REAFFIRMATION OF GUARANTY: The Guarantor hereby reaffirms,
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re-acknowledges and ratifies each and every of the terms, representations,
warranties, covenants and conditions of the Guaranty, and agrees to remain bound
thereby. Guarantor agrees that all loans or financial accommodations currently
being extended, renewed or modified by the Lender to the Borrower shall remain
encompassed by the Guaranty, and hereby reaffirms and ratifies the terms of the
Guaranty with respect to each such loan or financial accommodation, including,
without limitation, the Loan and the Loan Documents.
3. REAFFIRMATION OF INDEMNITY AGREEMENT: The Guarantor hereby reaffirms,
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re-acknowledges and ratifies each and every of the terms, representations,
warrants, covenants and conditions of the Indemnity Agreement, and agrees to
remain bound thereby. Guarantor agrees that all loans or financial
accommodations currently being extended, renewed or modified by the Lender to
the Borrower shall remain encompassed by the Indemnity Agreement, and hereby
reaffirms and ratifies the terms of the Indemnity Agreement with respect to each
such loan or financial accommodation, including, without limitation, the Loan
and the Loan Documents.
4. NO DEFENSES, COUNTERCLAIMS OR SETOFFS: The Guarantor acknowledges that
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as of the date of this Agreement, the Guarantor has no defenses, counterclaims
or claims to rights of offset with respect to the repayment of any obligations
or indebtedness owed by the Borrower to the Lender or the Guarantor's
obligations under the Guaranty or Indemnity Agreement, including, without
limitation, the Loan and the Loan Documents, or with respect to the validity and
enforceability of any collateral or security interests held by the Lender in
connection with the Loan and/or as evidenced or secured by the Loan Documents.
5. NO RELEASE: The Guarantor acknowledges and agrees that no action taken
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by the Lender subsequent to the date hereof shall affect, impair or diminish the
Guarantor's obligations under the Guaranty or the Indemnity Agreement.
6. RELIANCE: The Guarantor acknowledges that the Lender is relying upon
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this Modification and Reaffirmation of Guaranty and Environmental Indemnity
Agreement in agreeing to modify the Existing Loan and to make the Loan to the
Borrower, and the Guarantor intends that the Lender shall rely upon this
Modification and Reaffirmation of Guaranty and Environmental Indemnity
Agreement. The Guarantor certifies to the Lender that the Guarantor is
affiliated or associated with the Borrower such that the Loan extended by the
Lender to the Borrower shall inure to the benefit of the Guarantor, and
constitute sufficient consideration for the Guarantor's execution of this
Agreement.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly
executed as of the day and year written above.
WITNESS: GUARANTOR:
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxx
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Xxxxx Xxxxxx Xxxxxxx X. Xxxxxx
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American Leisure Holdings, Inc.,
a Nevada corporation
/s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxx Xxxxx XX Xxxxxx , its
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STATE OF FLORIDA )
) SS
COUNTY OF Osceola )
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I HEREBY CERTIFY that the foregoing instrument was acknowledged before me
this 22nd day of November, 2006, by Xxxxxxx X. Xxxxxx, who is personally known
to me or have produced driver's licenses issued by the Department of Highway
Safety and Motor Vehicles as identification and did [did not] take an oath.
/s/ Xxxxx Xxxxx
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Print Name:
NOTARY PUBLIC, State of Florida
Serial No:
My Commission Expires: 3/21/07
STATE OF FLORIDA )
) SS
COUNTY OF Osceola )
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I HEREBY CERTIFY that the foregoing instrument was acknowledged before me
this 22nd day of November, 2006, by Xxxxxxx Xxxxxx, as CEO of American Leisure
Holdings, Inc., a Nevada corporation, on behalf of the corporation who is
personally known to me or have produced driver's licenses issued by the
Department of Highway Safety and Motor Vehicles as identification and did [did
not] take an oath.
/s/ Xxxxx Xxxxx
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Print Name:
NOTARY PUBLIC, State of Florida
Serial No:
My Commission Expires: 3/21/07
