Exhibit 10.13
PAYMENT GUARANTY
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PROJECT COMMONLY KNOWN AS
"TIERRA DEL SOL PHASE I"
THIS PAYMENT GUARANTY ("Guaranty") made as of December 29, 2005 by
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XXXXXXX X. XXXXXX, AMERICAN LEISURE HOLDINGS, INC., a Nevada corporation, and
TDS DEVELOPMENT, LLC, a Florida limited liability company, jointly and
severally, (collectively, "Guarantor"), to and for the benefit of KEYBANK
NATIONAL ASSOCIATION, a national banking association, its successors and assigns
("Lender").
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R E C I T A L S
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A. On or about the date hereof, TIERRA DEL SOL RESORT (PHASE 1), LTD., a
Florida limited partnership, TDS TOWN HOMES (PHASE 1), LLC, a Florida limited
liability company, XXXXX XXXXXX I REAL ESTATE, LLC, a Florida limited liability
company, TDS AMENITIES, INC., a Florida corporation (jointly and severally
"Borrower") and Lender entered into that certain Loan Agreement ("Loan
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Agreement") whereby Lender agreed to make a secured loan (the "Loan") available
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to Borrower in the maximum aggregate amount at any time outstanding not to
exceed the sum of FORTY MILLION AND NO/100 DOLLARS ($40,000,000.00), to finance
the construction and development of a luxury townhome/condominium project to be
known as "Tierra del Sol" (the "Project"). Capitalized terms used and not
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otherwise defined herein shall have the meanings given to them in the Loan
Agreement.
B. In connection with the Loan, Borrower has executed and delivered a
promissory note (the "Note") in favor of Lender of even date herewith in the
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amount of the Loan, payment of which is secured by (i) a Mortgage made by
Borrower in favor of Lender on the Project and (ii) the other Loan Documents.
C. Guarantor will derive material financial benefit from the Loan evidenced
and secured by the Note, the Mortgage and the other Loan Documents.
D. Lender has relied on the statements and agreements contained herein in
agreeing to make the Loan. The execution and delivery of this Guaranty by
Guarantor is a condition precedent to the making of the Loan by Lender.
AGREEMENTS
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NOW, THEREFORE, intending to be legally bound, Guarantor, in consideration
of the matters described in the foregoing Recitals, which Recitals are
incorporated herein and made a part hereof, and for other good and valuable
consideration the receipt and sufficiency of which are acknowledged, hereby
covenants and agrees for the benefit of Lender and its respective successors,
endorsees, transferees, participants and assigns as follows:
1. Guarantor absolutely, unconditionally and irrevocably guarantees:
(a) the full and prompt payment of the principal of and interest on
the Note when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, and the full and prompt payment of
all sums which may now be or may hereafter become due and owing under the
Note, the Loan Agreement and the other Loan Documents;
(b) the prompt, full and complete performance of all of Borrower's
obligations under each and every covenant contained in the Loan Documents;
and
(c) the full and prompt payment of any Enforcement Costs (as
hereinafter defined in Section 7 hereof).
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All amounts due, debts, liabilities and payment obligations described in
subsections (a) and (b) of this Section 1 shall be hereinafter collectively
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referred to as the "Indebtedness."
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2. In the event of any Event of Default as defined in the Loan Agreement,
Guarantor agrees, on demand by Lender or the holder of the Note, to pay the
Indebtedness regardless of any defense, right of set-off or claims which
Borrower or Guarantor may have against Lender or the holder of the Note.
Anything in the Loan Documents to the contrary notwithstanding, Lender agrees to
give Guarantor notice of any Event of Default by Borrower in the payment of the
Indebtedness or otherwise, and further agrees that no remedies under the Loan
Documents, including, without limitation, this Guaranty, shall be pursued by
Lender as a result of such Event of Default so long as Guarantor shall have
cured any monetary default within ten (10) days after its receipt of said
notice, or with respect to any other default, Guarantor shall have cured such
default within thirty (30) days after its receipt of said notice to cure (or
such other additional time, if any, that is reasonably necessary to promptly and
diligently cure) such default.
All of the remedies set forth herein and/or provided for in any of the Loan
Documents or at law or equity shall be equally available to Lender, and the
choice by Lender of one such alternative over another shall not be subject to
question or challenge by Guarantor or any other person, nor shall any such
choice be asserted as a defense, setoff, or failure to mitigate damages in any
action, proceeding, or counteraction by Lender to recover or seeking any other
remedy under this Guaranty, nor shall such choice preclude Lender from
subsequently electing to exercise a different remedy. The parties have agreed to
the alternative remedies provided herein in part because they recognize that the
choice of remedies in the event of a default hereunder will necessarily be and
should properly be a matter of good faith business judgment, which the passage
of time and events may or may not prove to have been the best choice to maximize
recovery by Lender at the lowest cost to Borrower and/or Guarantor. It is the
intention of the parties that such good faith choice by Lender be given
conclusive effect regardless of such subsequent developments.
3. Guarantor does hereby (a) waive notice of acceptance of this Guaranty by
Lender and any and all notices and demands of every kind which may be required
to be given by Lender pursuant to any statute, rule or law, (b) agree to refrain
from asserting, until after repayment in full of the Loan, any defense, right of
set-off or other claim which Guarantor may have against Borrower (c) waive any
defense, right of set-off or other claim which Guarantor or Borrower may have
against Lender, or the holder of the Note, (d) waive any and all rights
Guarantor may have under any anti-deficiency statute or other similar
protections, (e) waive presentment for payment, demand for payment, notice of
nonpayment or dishonor, protest and notice of protest, diligence in collection
and any and all formalities which otherwise might be legally required to charge
Guarantor with liability, and (f) waive any failure by Lender to inform
Guarantor of any facts Lender may now or hereafter know about Borrower, the
Project, the Loan, or the transactions contemplated by the Loan Agreement, it
being understood and agreed that Lender has no duty so to inform and that
Guarantor is fully responsible for being and remaining informed by Borrower of
all circumstances bearing on the risk of nonperformance of Borrower's
obligations. Credit may be granted or continued from time to time by Lender to
Borrower without notice to or authorization from Guarantor, regardless of the
financial or other condition of Borrower at the time of any such grant or
continuation. Lender shall have no obligation to disclose or discuss with
Guarantor its assessment of the financial condition of Borrower. Guarantor
acknowledges that no representations of any kind whatsoever have been made by
Lender. No modification or waiver of any of the provisions of this Guaranty
shall be binding upon Lender except as expressly set forth in a writing duly
signed and delivered by Lender.
4. Guarantor further agrees that Guarantor's liability as guarantor shall
in not be impaired or affected by any renewals or extensions which may be made
from time to time, with or without the knowledge or consent of Guarantor of the
time for payment of interest or principal under the Note or by any forbearance
or delay in collecting interest or principal under the Note, or by any waiver by
Lender under the Loan Agreement, Mortgage or any other Loan Documents, or by
Lender's failure or election not to pursue any other remedies it may have
against Borrower or Guarantor, or by any change or modification in the Note,
Loan Agreement, Mortgage or any other Loan Document, or by the acceptance by
Lender of any additional security or any increase, substitution or change
therein, or by the release by Lender of any security or any withdrawal thereof
or decrease therein, or by the application of payments received from any source
to the payment of any obligation other than the Indebtedness even though Lender
might lawfully have elected to apply such payments to any part or all of the
Indebtedness, it being the intent hereof that, subject to Lender's compliance
with the terms of this Guaranty, Guarantor shall remain liable for the payment
of the Indebtedness, until the Indebtedness has been paid in full,
notwithstanding any act or thing which might otherwise operate as a legal or
equitable discharge of a surety. Guarantor further understands and agrees that
Lender may at any time enter into agreements with Borrower to amend and modify
the Note, Loan Agreement, Mortgage or other Loan Documents, and may waive or
release any provision or provisions of the Note, Loan Agreement, Mortgage and
other Loan Documents or any thereof, and, with reference to such instruments,
may make and enter into any such agreement or agreements as Lender and Borrower
may deem proper and desirable, without in any manner impairing or affecting this
Guaranty or any of Lender's rights hereunder or Guarantor's obligations
hereunder.
5. This is an absolute, present and continuing guaranty of payment and not
of collection. Guarantor agrees that this Guaranty may be enforced by Lender
without the necessity at any time of resorting to or exhausting any other
security or collateral given in connection herewith or with the Note, Loan
Agreement, Mortgage or any of the other Loan Documents through foreclosure or
sale proceedings, as the case may be, under the Mortgage or otherwise, or
resorting to any other guaranties, and Guarantor hereby waives any right to
require Lender to join Borrower in any action brought hereunder or to commence
any action against or obtain any judgment against Borrower or to pursue any
other remedy or enforce any other right. Guarantor further agrees that nothing
contained herein or otherwise shall prevent Lender from pursuing concurrently or
successively all rights and remedies available to it at law and/or in equity or
under the Note, Loan Agreement, Mortgage or any other Loan Documents, and the
exercise of any of its rights or the completion of any of its remedies shall not
constitute a discharge of Guarantor's obligations hereunder, it being the
purpose and intent of Guarantor that the obligations of Guarantor hereunder
shall be absolute, independent and unconditional under any and all circumstances
whatsoever. None of Guarantor's obligations under this Guaranty or any remedy
for the enforcement thereof shall be impaired, modified, changed or released in
any manner whatsoever by any impairment, modification, change, release or
limitation of the liability of Borrower under the Note, Loan Agreement, Mortgage
or other Loan Documents or by reason of the bankruptcy of Borrower or by reason
of any creditor or bankruptcy proceeding instituted by or against Borrower. This
Guaranty shall continue to be effective or be reinstated (as the case may be) if
at any time payment of all or any part of any sum payable pursuant to the Note,
Loan Agreement, Mortgage or any other Loan Document is rescinded or otherwise
required to be returned by Lender upon the insolvency, bankruptcy, dissolution,
liquidation, or reorganization of Borrower, or upon or as a result of the
appointment of a receiver, intervenor, custodian or conservator of or trustee or
similar officer for, Borrower or any substantial part of its property, or
otherwise, all as though such payment to Lender had not been made, regardless of
whether Lender contested the order requiring the return of such payment. In the
event of the foreclosure of the Mortgage and of a deficiency, Guarantor hereby
promises and agrees forthwith to pay the amount of such deficiency
notwithstanding the fact that recovery of said deficiency against Borrower would
not be allowed by applicable law; however, the foregoing shall not be deemed to
require that Lender institute foreclosure proceedings or otherwise resort to or
exhaust any other collateral or security prior to or concurrently with enforcing
this Guaranty.
6. In the event Lender or any holder of the Note shall assign the Note to
any lender or other entity to secure a loan from such lender or other entity to
Lender or such holder of the Note for an amount not in excess of the amount
which will be due, from time to time, from Borrower to Lender under the Note
with interest not in excess of the rate of interest which is payable by Borrower
to Lender under the Note, Guarantor will accord full recognition thereto and
agree that all rights and remedies of Lender or such holder hereunder shall be
enforceable against Guarantor by such Lender or other entity with the same force
and effect and to the same extent as would have been enforceable by Lender or
such holder but for such assignment; provided, however, that unless Lender shall
otherwise consent in writing, Lender shall have an unimpaired right, prior and
superior to that of its assignee or transferee, to enforce this Guaranty for
Lender's benefit to the extent any portion of the Indebtedness or any interest
therein is not assigned or transferred.
7. If: (a) this Guaranty is placed in the hands of an attorney for
collection or is collected through any legal proceeding; (b) an attorney is
retained to represent Lender in any bankruptcy, reorganization, receivership, or
other proceedings affecting creditors' rights and involving a claim under this
Guaranty; (c) an attorney is retained to provide advice or other representation
with respect to this Guaranty; or (d) an attorney is retained to represent
Lender in any proceedings whatsoever in connection with this Guaranty and Lender
prevails in any such proceedings, then Guarantor shall pay to Lender upon demand
all reasonable attorney's fees, costs and expenses incurred in connection
therewith (all of which are referred to herein as "Enforcement Costs"), in
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addition to all other amounts due hereunder, regardless of whether all or a
portion of such Enforcement Costs are incurred in a single proceeding brought to
enforce this Guaranty as well as the other Loan Documents.
8. The parties hereto intend and believe that each provision in this
Guaranty comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of law to be in
violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of this Guaranty to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force to the fullest possible extent that they are legal, valid and enforceable,
that the remainder of this Guaranty shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions were
not contained therein, and that the rights, obligations and interest of Lender
or the holder of the Note under the remainder of this Guaranty shall continue in
full force and effect.
9. TO THE GREATEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY WAIVES ANY AND
ALL RIGHTS TO REQUIRE MARSHALLING OF ASSETS BY LENDER. WITH RESPECT TO ANY SUIT,
ACTION OR PROCEEDINGS RELATING TO THIS GUARANTY (EACH, A "PROCEEDING"), LENDER
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AND GUARANTOR IRREVOCABLY: (A) SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE
STATE AND FEDERAL COURTS HAVING JURISDICTION IN XXX XXXX XX XXXXXXX XXX XXXXX XX
XXXXXXX; (B) WAIVE ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF
VENUE OF ANY PROCEEDING BROUGHT IN ANY SUCH COURT; (C) WAIVE ANY CLAIM THAT ANY
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM; AND (D) FURTHER WAIVE THE
RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDING, THAT SUCH COURT DOES NOT HAVE
JURISDICTION OVER SUCH PARTY. NOTHING IN THIS GUARANTY SHALL PRECLUDE LENDER
FROM BRINGING A PROCEEDING IN ANY OTHER JURISDICTION NOR WILL THE BRINGING OF A
PROCEEDING IN ANY ONE OR MORE JURISDICTIONS PRECLUDE THE BRINGING OF A
PROCEEDING IN ANY OTHER JURISDICTION. LENDER AND GUARANTOR FURTHER AGREE AND
CONSENT THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR
UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY PROCEEDING IN ANY FLORIDA
STATE OR UNITED STATES COURT SITTING IN THE CITY OF ORLANDO AND MAY BE MADE BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE
APPLICABLE PARTY AT THE ADDRESS INDICATED BELOW, AND SERVICE SO MADE SHALL BE
COMPLETE UPON RECEIPT; EXCEPT THAT IF SUCH PARTY SHALL REFUSE TO ACCEPT
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DELIVERY, SERVICE SHALL BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL
HAVE BEEN SO MAILED.
10. Any indebtedness of Borrower to Guarantor now or hereafter existing is
hereby subordinated to the payment of the Indebtedness. Guarantor agrees that,
until the entire Indebtedness has been paid in full, Guarantor will not seek,
accept, or retain for its own account, any payment from Borrower on account of
such subordinated debt. Any payments to Guarantor on account of such
subordinated debt shall be collected and received by Guarantor in trust for
Lender and shall be paid over to Lender on account of the Indebtedness without
impairing or releasing the obligations of Guarantor hereunder.
11. Any amounts received by Lender from any source on account of the Loan
may be utilized by Lender for the payment of the Indebtedness and any other
obligations of Borrower to Lender in such order as Lender may from time to time
elect. Additionally, if the indebtedness guaranteed hereby is less than the full
indebtedness evidenced by the Note, all rents, proceeds and avails of the
Project, including proceeds of realization of Lender's collateral, shall be
deemed applied on the indebtedness of Borrower to Lender that is not guaranteed
by Guarantor until such unguaranteed indebtedness of Borrower to Lender has been
fully repaid before being applied upon the indebtedness guaranteed by Guarantor.
12. GUARANTOR AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT
UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING
FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND AGREE
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
13. Any notice, demand, request or other communication which any party
hereto may be required or may desire to give hereunder shall be in writing and
shall be deemed to have been properly given (a) if hand delivered, when
delivered; (b) if mailed by United States Certified Mail (postage prepaid,
return receipt requested), three Business Days after mailing (c) if by Federal
Express or other reliable overnight courier service, on the next Business Day
after delivered to such courier service or (d) if by telecopier on the day of
transmission so long as copy is sent on the same day by overnight courier as set
forth below:
GUARANTOR: Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone:
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Facsimile:
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American Leisure Holdings, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone:
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Facsimile:
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TDS Development, LLC
0000 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone:
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Facsimile:
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with a copy to: Xxxxxx & Xxxxx LLP
0000 Xxxxx Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: C. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LENDER: KeyBank National Association
000 Xxxx Xxxxxxxx Xxxxxx, Xxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Commercial Real Estate Department
Telephone: 407/000-0000
Facsimile: 407/241-3749
with a copy to: Xxxxx & Lardner LLP
000 Xxxxx Xxxxxx Xxxxxx, Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Xx., Esq.
Telephone: 407/000-0000
Facsimile: 407/248-1743
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
14. In order to induce Lender to make the Loan, Guarantor makes the
following representations and warranties to Lender set forth in this Section.
Guarantor acknowledges that but for the truth and accuracy of the matters
covered by the following representations and warranties, Lender would not have
agreed to make the Loan.
(a) Guarantor is duly formed, validly existing, and in good standing
in its state of organization and has qualified to do business and is in
good standing in any state in which it is necessary in the conduct of its
business.
(b) Guarantor maintains an office at the address set forth for such
party in Section 13.
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(c) Any and all balance sheets, net worth statements, and other
material financial data with respect to Guarantor which have heretofore
been given to Lender by or on behalf of Guarantor fairly and accurately
present the financial condition of Guarantor as of the respective dates
thereof.
(d) To Guarantor's actual knowledge, the execution, delivery, and
performance by Guarantor of this Guaranty does not and will not contravene
or conflict with (i) any Laws, order, rule, regulation, writ, injunction or
decree now in effect of any Government Authority, or court having
jurisdiction over Guarantor, (ii) any contractual restriction binding on or
affecting Guarantor or Guarantor's property or assets which may adversely
affect Guarantor's ability to fulfill its obligations under this Guaranty,
(iii) the instruments creating any trust holding title to any assets
included in Guarantor's financial statements, or (iv) the organizational or
other documents of Guarantor.
(e) To Guarantor's actual knowledge, this Guaranty creates legal,
valid, and binding obligations of Guarantor enforceable in accordance with
its terms.
(f) To Guarantor's actual knowledge, except as disclosed in writing to
Lender, there is no action, proceeding, or investigation pending or, to the
knowledge of Guarantor, threatened or affecting Guarantor, which may
adversely affect Guarantor's ability to fulfill his obligations under this
Guaranty. There are no judgments or orders for the payment of money
rendered against Guarantor for an amount in excess of $100,000 which have
been undischarged for a period of ten (10) or more consecutive days and the
enforcement of which is not stayed by reason of a pending appeal or
otherwise. To Guarantor's actual knowledge, Guarantor is not in default
under any agreements which may adversely affect Guarantor's ability to
fulfill its obligations under this Guaranty.
(g) To Guarantor's actual knowledge, all statements set forth in the
Recitals are true and correct.
All of the foregoing representations and warranties shall be deemed remade
on the date of the first disbursement of Loan proceeds, on the date of each
advance of Loan proceeds, and upon any extension of the Loan pursuant to the
Loan Agreement. Guarantor hereby agrees to indemnify and hold Lender free and
harmless from and against all loss, cost, liability, damage, and expense,
including attorney's fees and costs, which Lender may sustain by reason of the
inaccuracy or breach of any of the foregoing representations and warranties as
of the date the foregoing representations and warranties are made and are
remade.
15. Guarantor shall deliver or cause to be delivered to Lender all of the
Guarantor financial statements to be delivered in accordance with the terms of
the Loan Agreement.
16. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Guarantor and shall not be
discharged in whole or in part by the death of Guarantor. If more than one party
executes this Guaranty, the liability of all such parties shall be joint and
several.
17. THIS GUARANTY, THE NOTE, AND ALL OTHER INSTRUMENTS EVIDENCING AND
SECURING THE LOAN SECURED HEREBY WERE NEGOTIATED IN THE STATE OF FLORIDA AND
DELIVERED BY GUARANTOR OR BORROWER, AS APPLICABLE, AND ACCEPTED BY LENDER IN THE
STATE OF FLORIDA WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO
THE PARTIES AND THE UNDERLYING TRANSACTIONS EMBODIED HEREBY. IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITATION, MATTERS OF CONSTRUCTION OF THE IMPROVEMENTS AND
PERFORMANCE OF THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER, THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF FLORIDA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
18. Lender shall be entitled to honor any request for Loan proceeds made by
Borrower and shall have no obligation to see to the proper disposition of such
advances. Guarantor agrees that his obligations hereunder shall not be released
or affected by reason of any improper disposition by Borrower of such Loan
proceeds.
19. This Guaranty may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty in the State of
Florida as of the date first written above.
"GUARANTOR":
/s/Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
AMERICAN LEISURE HOLDINGS, INC.,
a Nevada corporation
By:/s/Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX, President
TDS DEVELOPMENT, LLC,
a Florida limited liability company
By:/s/Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX, Manager
