GUARANTY
EXHIBIT
10.31
This
Guaranty is executed as of February 7,
2007
by the undersigned guarantor(s) (individually and collectively, "Guarantor")
in
favor of Textron Financial Corporation ("TFC") and each of TFC's affiliates
(individually and collectively, "Textron"). For purposes of this Guaranty,
any
party which controls TFC, is controlled by TFC, or is under common control
with
TFC, shall be deemed an affiliate of TFC.
RECITALS
A. Textron
may, from time to time, enter into agreements with Deer
Valley Homebuilders, Inc. (Individually
or collectively "Obligor");
B. Textron
is unwilling to enter into agreements with Obligor, unless Guarantor
unconditionally guarantees to Textron the payment and/or performance of all
obligations of Obligor at any time owing to Textron.
AGREEMENT
With
knowledge that Textron will enter into agreements with Obligor in reliance
upon
the existence of this Guaranty, Guarantor agrees with Textron as
follows:
1. Guaranty.
Guarantor unconditionally and irrevocably guarantees to Textron (except as
hereinafter expressly provided as to revocability), without off-set or
deduction, the prompt payment andfar performance of all indebtedness,
obligations and liabilities of Obligor at any time owing to Textron, whether
direct or indirect, matured or unmatured, primary or secondary, or certain
or
contingent (individually, a "Guaranteed
Obligation" and, collectively, the "Guaranteed Obligations"), This Guaranty
is a
guaranty of payment and not a guaranty of collection. Guarantor guarantees
to
Textron the punctual and faithful performance by Obligor of each and every
Guaranteed Obligation. If Obligor defaults in the payment or performance of
any
Guaranteed Obligation, if there exists any event or condition which, with notice
and/or the passage of time, would constitute a default under any Guaranteed
Obligation, or if there is a liquidation, bankruptcy, assignment for the benefit
of creditors or similar proceeding affecting the status, existence, assets
or
obligations of Obligor, Guarantor shall pay directly to Textron the sums which
Obligor is obligated to pay to Textron, whether by acceleration or otherwise,
and promptly perform all other Guaranteed Obligations. if Textron is required
tc
retum any payment made to Textron by or on behalf of Obligor, whether as a
result of Obligor's bankruptcy, reorganization or otherwise, Guarantor
acknowledges that this Guaranty covers all such amounts.
2. Continuing
Nature of Guaranty.
This
Guaranty is a continuing guarantee and shall apply without regard to the form
or
the amount of the Guaranteed Obligations in existence at any time. Guarantor
may
prospectively revoke this Guaranty by sending written notice, by certified
mail,
return receipt requested, to Textron at the address for Textron specified below
(the "Revocation Notice"). The revocation of this Guaranty shall not be
effective with respect to any Guaranteed Obligation arising on or prior to
the
date occurring fifteen (15) days after Textron's receipt of the Revocation
Notice (the "Revocation
Date") or arising at any time after the Revocation Date, if arising as the
result of a commitment made by Textron to Obligor on or prior to the Revocation
Date.
3. Absolute
Nature of Guaranty.
The
obligations of Guarantor under this Guaranty are absolute and unconditional.
Guarantor shall not be released from such obligations for any reason, nor shall
such obligations be reduced, diminished or discharged for any reason,
Including:
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(a)
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Modifications
and Indulgences.
Any modification, renewal or alteration of any agreement, document
or
instrument relating to any Guaranteed Obligation, or any indulgence,
adjustment, preference, extension or compromise made by Textron in
favor
of Obligor or Guarantor.
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(b)
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Condition
of Obligor or Guarantor.
Any insolvency, bankruptcy, arrangement, adjustment, composition,
liquidation, disability, dissolution or similar proceeding affecting
Obligor or Guarantor; any sale, lease or other disposition of any
of the
assets of Obligor or Guarantor; or any reorganization of, or change
in the
composition of the shareholders, partners or members of, Obligor
or
Guarantor.
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(c)
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Invalidity
of Guaranteed Obligations.
The invalidity, illegality or unenforceability of any Guaranteed
Obligation for any reason whatsoever, including, but not limited
to; the
existence of valid defenses, counterclaims or off-sets to any Guaranteed
Obligation; the violation of applicable usury laws by any Guaranteed
Obligation; or the inauthenticity of any document or instrument relating
to the Guaranteed Obligations.
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(d) Release
of Obligor.
Any
complete or partial release of Obligor or any other party from any Guaranteed
Obligation.
(e) Release
of Collateral: Care of Collateral; Status of Liens.
Any
release, surrender, exchange, deterioration, waste, loss or impairment of any
collateral securing payment of any Guaranteed Obligation (the "Collateral"),
whether negligent or willful; the failure of Textron or any other party to
exercise reasonable care in the preservation, protection, sale or other
treatment of any of the Collateral; the failure of Textron to create or perfect
any security interest intended to be given by Obligor in connection with any
Guaranteed Obligation (a "Security Interest"); the unenforceability of any
Security Interest; the subordination of any Security Interest to any other
lien
or encumbrance; or the taking or accepting by Textron of any other security
for,
or assurance of payment of, any Guaranteed Obligation.
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(f)
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Other
Action or Inaction.
Any other action or inaction on the part of Textron, whether or not
such
action or inactionprejudices Guarantor or increases the likelihood
that
Guarantor will be required to pay or perform any Guaranteed Obligation
pursuant to the terms hereof.
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it
is the
obligation of Guarantor to discharge the Guaranteed Obligations when due,
notwithstanding any occurrence, circumstance, event, action or omission
whatsoever, whether or not particularly described herein. Guarantor is not
entering into this Guaranty in reliance on the value or the availability of
any
of the Collateral. Guarantor acknowledges that Guarantor may be required to
pay
the Guaranteed Obligations, in full, without the assistance or support of any
other party. Guarantor has not been induced to enter into this Guaranty on
the
basis that any party other than Obligor will be liable to perform any Guaranteed
Obligation or that Textron will look to any other party to perform any
Guaranteed Obligation. If this Guaranty is signed by more than one party, the
obligations of such parties are joint and several and Textron may release,
or
settle with, any of such parties without affecting the liability of any other
party to this Guaranty. To the extent that this Guaranty is secured by property
of Grantor, Textron shall not be obligated to release its security interest
in
such property until all applicable preference periods have passed with respect
to payments Made to Textron by or on behalf of Obligator.
4.
Waivers.
Guarantor waives:
| (a) |
Action
Against Others.
Any right to require Textron to: institute suit or exhaust remedies
against Obligor or any other party liable for any Guaranteed Obligation;
enforce Textron's rights in any of the Collateral or other security
which
is at any time given to secure any Guaranteed Obligation; enforce
Textron's
rights against any other guarantor of any Guaranteed Obligation;
join
Obligor or any other party liable for any Guaranteed Obligation in
any
action seeking to enforce this Guaranty; or exhaust any other remedies
available to Textron or resort to any other means of obtaining payment
or
performance of any Guaranteed
Obligation.
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| (b) |
Notices.
Notice of the amount of credit extended by Textron to Obligor at
any time,
whether primary or secondary; notice of the modification or
extension of
any Guaranteed Obligation; notice of a default or other non-performance
by
Obligor in connection with any Guaranteed Obligation; notice of the
transfer
or
disposition by Textron of any Guaranteed Obligation; notice of the
repossession, sale or other disposition of any of the Collateral;
notice
of the acceptance of this Guaranty by Textron; demand and presentation
for
payment upon Obligor or any other party liable for any Guaranteed
Obligation; protest, notice of protest and diligence of bringing
suit
against Obligor or any other party; and any other action or inaction
on
the part of Textron in connection with this Guaranty or any Guaranteed
Obligation.
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| (c) |
Subrogation.
Any right which Guarantor may at any time have against Obligor, or
any
other party liable for any Guaranteed Obligation, as the result of
the performance
by Guarantor of its obligations under this Guaranty, including, but
not
limited to, contractual, statutory and common law rights of subrogation,
reimbursement
and indemnification.
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5. Representations
and Warranties.
Guarantor represents and warrants to Textron that:
| (a) |
Benefit.
Guarantor has received, or will receive, direct or indirect benefit
from
the creation of the Guaranteed
Obligations.
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(b)
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No
Representation by Textron
Neither Textron nor any other party has made any representation,
warranty
or statement to Guarantor in order to induce Guarantor to execute
this
Guaranty.
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(c)
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Financial
Condition.
As
of the date hereof, and after giving effect to this Guaranty and
the
contingent obligations contained herein, Guarantor is solvent and
has
assets which, when fairly valued, exceed its
liabilities.
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6.
Governing
Law; Miscellaneous. This
Guaranty shall be governed by, and construed in accordance with, the laws of
the
State of Rhode Island, without reference to applicable conflict of law
principles. Guarantor consents to the jurisdiction and venue of Rhode Island
courts in connection with Textron's enforcement of any of Guarantor's
obligations under this Guaranty. This
Guaranty shall not be deemed to create any right in any party except as provided
herein and shall inure to the benefit of; and be binding upon, the successors
and assigns of Guarantor and Textron. Guarantor agrees that Textron may,
without
the consent of, or notice to, Guarantor, assign all or any portion of its rights
hereunder to any other party to which any Guaranteed Obligation is
transferred, assigned
or negotiated. Guarantor shall be liable for all attorneys' fees and other
costs
and expenses incurred by Textron in connection with Textron's enforcement
of
this
Guaranty,
The
undersigned, pursuant to due corporate or partnership authority, as appropriate,
has or have caused this Guaranty to be executed as of
the
date set forth above.
WITNESS(ES):
By:/s/Xxxxxx
Xxxxxxx, Xx.
Name:Xxxxxx
X Xxxxxxx, Xx.
Home
Address:
000
Xxxxx Xxxxxxx Xxx, # 0
Xxxxx,
Xxxxxxx 00000
| CORPORATE OR PARTNERSHIP GUARANTOR | ||
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Deer
Valley Corporation |
| By: | /s/ X. X. Xxxxxxx | |
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Xxxxxxx X. Xxxxxxx |
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| Title: President | ||
Address
for Notices to Textron:
Textron
Financial Corporation
XX
XXX
0000
Xxxxxxxxxx,
XX 00000
The
undersigned, Xxxxxxx
X. Xxxxxxx, the
sole
officer of
Deer Valley Corporation (the
"Company"), in order to induce Textron Financial Corporation ("TFC") to enter
into the Agreement(s) (as hereinafter defined), certifies to TFC
that:
1.
The
Company is duly organized, validly existing and in good standing under the
laws
of the State or Commonwealth of
Florida; the
Company has full corporate power and authority to execute, enter into and
deliver the Guaranty
dated
February
7, 2007 between
the Company and TFC and any and all other documents related thereto, whether
now
or hereafter executed (the "Agreement(s)"); and all corporate action necessary
to authorize the execution, delivery and performance of the Agreement(s) has
been taken and such action has not been modified or rescinded in any
respect.
2.
I
am
the
sole duly elected
(or
appointed),
qualified and acting
officer of the Company,
having full power and authority to act alone on behalf of the Company with
respect to the Agreement(s), including any future modification(s) thereof,
and
to execute and deliver such other instruments and agreements in connection
therewith as I deem necessary or
proper. Said power and authority is being relied upon by TFC and shall remain
in
full force and effect for a period of one year
from
the date hereof unless TFC shall receive in writing notice of the revocation
of
my power to so act on behalf of the
Company.
The signature appearing opposite my name below is my genuine
signature.
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Name
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Office
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Signature
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Xxxxxxx
X.
Xxxxxxx
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President
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/s/
X. X.
Xxxxxxx
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IN
WITNESS WHEREOF, the undersigned has hereunto signed his or her name and
imprinted the seal of the Company as of the date set forth below.
| By: | /s/ X. X. Xxxxxxx | |
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Xxxxxxx X. Xxxxxxx |
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| Title: President | ||
State
of Florida
County
of Hillsborough
Sworn
to
and
Subscribed before me
this
13th day
of February, 2007 at Tampa
State
of
Florida
| /s/ Xxxxxx X. Xxxxxxx | ||
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Notary Public My
commission expires: 02/04/2011
(NOTARIAL
SEAL)
XXXXXX
X. XXXXXXX
MY
COMMISSION #DD 606176
EXPIRES:
February 4, 2011
Bonded
Thru Notary Public Underwriters
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