RESTATED CONTINUING GUARANTY DEER VALLEY CORPORATION
EXHIBIT
10.6
RESTATED
CONTINUING GUARANTY
DEER
VALLEY CORPORATION
For
the
purpose of inducing FIFTH
THIRD BANK,
a
Michigan banking corporation, hereinafter referred to as the "Lender," to loan
to DEER
VALLEY HOMEBUILDERS, INC.,
an
Alabama corporation, hereinafter referred to as the "Borrower," the maximum
sum
of $2,500,000.00, the undersigned, as successor by merger with Cytation Corp.,
hereinafter referred to as "Guarantor," whether one or more, jointly and
severally if more than one, does hereby unconditionally guaranty to Lender
that:
(a) Borrower will duly and punctually pay or perform all indebtedness,
obligations and liabilities, direct or indirect, matured or unmatured, primary
or secondary, certain or contingent of Borrower to Lender now or hereafter
owing
or incurred (including without limitation costs and expenses incurred by Lender
in attempting to collect or enforce any of the foregoing) which are chargeable
to Borrower either by law or under the terms of Xxxxxx's arrangements with
Borrower relative to the above mentioned loan, hereinafter collectively referred
to as the "Obligations" and individually as an "Obligation"; and (b) if there
are any agreements or instruments evidencing or executed and delivered in
connection with any Obligation, including but not limited to a mortgage and/or
security agreement, Borrower will perform in all other respects strictly in
accordance with the terms thereof.
1. The
word
"Indebtedness" is used herein in its most comprehensive sense, and includes
any
and all advances (including future advances and those advances made by Lender
to
protect, enlarge or preserve the priority, propriety, or amount of its lien
against mechanic's liens, equitable liens, or statutory claimants, or
otherwise), debts, obligations and liabilities of Borrower heretofore, now
or
hereafter made, incurred or created, whether voluntary or involuntary and
however arising, whether due or not, absolute or contingent, liquidated,
determined or undetermined, and whether Borrower may be liable individually
or
jointly with others, or whether recovery upon such indebtedness may be or
hereafter become barred by any statute of limitations, or whether such
indebtedness may be or hereafter become otherwise unenforceable. This is a
Continuing Guaranty relating to said indebtedness, including that arising under
subsequent or successive transactions which shall either continue to increase
the indebtedness or from time to time renew it after it has been
satisfied.
2. The
obligations hereunder are independent of the Obligations of Xxxxxxxx and a
separate action or actions may be brought and prosecuted against Guarantor
whether action is brought against Borrower or whether Borrower may be joined
in
any such action or actions; and Guarantor waives the benefit of any statute
of
limitations affecting its liability hereunder or the enforcement
thereof.
3. Guarantor
authorizes Xxxxxx, without notice or demand and without affecting its liability
hereunder, from time to time to:
(a)
Renew, amend, compromise, extend, accelerate or otherwise change the time for
payment of, or otherwise change the terms of the indebtedness or any part
thereof;
(b)
Take
and hold security for the payment of this guaranty or the indebtedness
guarantied, exchange, enforce, waive and release any such security;
(c)
Apply
such security and direct the order or manner of sale thereof as Lender in its
discretion may determine.
4. Guarantor
waives any right to require Lender to: (a) proceed against Borrower; (b) proceed
against or exhaust any security held from Borrower; or (c) pursue any other
remedy in Xxxxxx's power whatsoever. Guarantor waives any defense arising by
reason of any disability or other defense of Borrower or by reason of the
cessation from any cause whatsoever of the liability of Borrower, except the
defense of payment, and until all indebtedness of Borrower to Lender shall
have
been paid in full, Guarantor shall have no right to subrogation, and 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. Guarantor waives all presentments,
demands for performance, notices of nonperformance, protests, notices of
dishonor, and notices of acceptance of this guaranty and of the existence,
creation or incurring of new or additional indebtedness. Guarantor covenants
to
cause Borrower to maintain and preserve the enforceability of any instruments
now or hereafter executed in favor of the Lender, and to take no action of
any
kind which might be the basis for a claim that Guarantor has any defense
hereunder other than payment in full of all indebtedness of Borrower to Lender.
Guarantor hereby indemnifies Lender against loss, cost or expense by reason
of
the assertion by Borrower of any defense of its obligations under any of the
aforesaid instruments, or resulting from the attempted assertion by Guarantor
of
any defense hereunder based upon any such action or inaction of Borrower.
Guarantor waives any right or claim of right to cause a marshaling of Xxxxxxxx's
assets or to require Lender to proceed against Guarantor in any particular
order. No delay on the part of Lender in the exercise of any right, power or
privilege under the documentation with Borrower or under this guaranty shall
operate as a waiver of any such privilege, power or right.
5. In
addition to all liens upon, and rights of setoff against the monies, securities
or other property of Guarantor given to Lender by law, Lender shall have a
lien
upon and a right of setoff against all monies, securities and other property
of
Guarantor now or hereafter in the possession of or on deposit with Lender,
whether held in a general or special account of deposit, or for safekeeping
or
otherwise; and every such lien and right of setoff may be exercised without
demand upon or notice to Guarantor. No act or conduct on the part of the Lender,
or by any neglect to exercise such right of setoff or to enforce such lien,
or
by any delay in so doing, shall operate as a waiver of such right; and every
right of setoff and lien shall continue in full force and effect until such
right of setoff or lien is specifically waived or released by an instrument
in
writing executed by Xxxxxx.
6. Any
indebtedness of Borrower now or hereafter held by Guarantor is hereby
subordinated to the indebtedness of Borrower to Lender. Guarantor also hereby
waives any claim, right or remedy which Guarantor may now have or hereafter
acquire against Borrower that arises hereunder and/or from the performance
by
Guarantor hereunder
including,
without limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, indemnification, or participation in any claim, right or remedy
of
Lender against Borrower or any security which Lender now has or hereafter
acquires, whether or not such claim, right or remedy arises in equity, under
contract, by statute, under common law or otherwise.
7. Guarantor
agrees to pay reasonable attorneys' fees, paralegals' fees and legal assistants'
fees, and all other costs and expenses which may be incurred by Xxxxxx in the
enforcement of Xxxxxxxx's Obligations and/or of this guaranty.
8. Upon
the
default of Borrower with respect to any of its Obligations or liabilities to
Lender, or in case Borrower or Guarantor shall become insolvent or make an
assignment for the benefit of creditors, or if a petition in bankruptcy or
for
corporate reorganization or for an arrangement shall be filed by or against
Borrower or Guarantor, or in the event of an appointment of a receiver for
Borrower or Guarantor or its properties, or in the event that a judgment is
obtained or warrant of attachment issued against Borrower or Guarantor, all
or
any part of the Obligations and liabilities of the Borrower and/or Guarantor
to
Lender, whether direct or contingent, and of every kind and description, shall,
without notice or demand, at the option of the Lender, become immediately due
and payable and shall be satisfied by Guarantor.
9. Guarantor
guarantees any sums that a trustee or debtor might thereafter recover from
the
Lender pursuant to a bankruptcy proceeding.
10. Guarantor
acknowledges that Lender has been induced by this guaranty to make the loan
to
Borrower heretofore described, and this guaranty shall, without further
reference or assignment, pass to and may be relied upon and enforced by, any
successor, participant or assignee of Lender in and to any liabilities or
Obligations of Borrower.
11. Guarantor
hereby waives any right to trial by jury in any litigation at any time arising
with respect to any matter connected with this guaranty.
12. This
guaranty shall, for all purposes, be governed by and construed in accordance
with, the laws of the State of Florida.
Dated
as
of the _____ day of April, 2007.
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DEER
VALLEY CORPORATION,
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a
Florida corporation
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By:
__________________________________
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Xxxxxxx
X. Xxxxxxx, as its President
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(CORPORATE
SEAL)
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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 April, 2007,
by
Xxxxxxx X. Xxxxxxx, as President of DEER VALLEY CORPORATION, a Florida
corporation, on behalf of the corporation.
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____
Personally known
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_____________________________________
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____
Florida Driver's License
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Notary
Public
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____
Other Identification Produced
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_________________
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_____________________________________
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_________________
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Print
or type name of Notary
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(SEAL)
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