COMPLETION GUARANTY
EXHIBIT______
THIS COMPLETION GUARANTY (this “Guaranty”) is dated as of August
1, 2005 made by TOUSA HOMES, L.P., a Delaware limited partnership (“TOUSA
Member”), and TECHNICAL OLYMPIC USA, INC., a Delaware corporation (together
with TOUSA Member, jointly and severally, the “Guarantors’’), in favor of
DEUTSCHE BANK TRUST COMPANY AMERICAS, in its capacity as Administrative
Agent for the Lenders described below (in such capacity, together with its
successors in such capacity, the “Administrative Agent”).
RECITALS
A. Pursuant to that certain Credit Agreement dated as of the date hereof
(as the same may be Modified from time to time, the “Loan Agreement”) by and
among EH/TRANSEASTERN, LLC, a limited liability company organized under the
laws of the state of Delaware and TE/TOUSA SENIOR, LLC, a limited liability
company organized under the laws of the state of Delaware (together, jointly
and severally, the “Borrowers” and each a “Borrower”), the Lenders from time
to time party thereto (the “Lenders”), and Administrative Agent, the Lenders
have agreed to make a loan to Borrowers in an initial principal amount of
$450,000,000 (the “Loan”), consisting of $335,000,000 aggregate principal
amount of Term Loans, and up to $115,000,000 aggregate principal amount of
Revolving Commitments.
B. The Operating Company Entities have initiated certain Projects, as
defined below, and Borrowers intend to use portions of the Revolving
Commitments to pay for certain costs and expenses incurred or to be incurred
in connection therewith.
C. It is a condition precedent to the making of the Loan by the Lenders
that Guarantors shall have executed and delivered this Guaranty to the
Administrative Agent.
D. Capitalized terms used and not otherwise defined herein shall have the
meaning ascribed to such terms in the Loan Agreement.
AGREEMENT
NOW THEREFORE, to induce the Lenders to extend the Loan to Borrowers, and
for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Guarantors hereby covenant and agree, jointly
and severally, as follows:
(i) Completion Obligations.
(a) Defined Terms. For purposes of this Guaranty the
following capitalized terms shall have the meanings set forth herein:
(1) “Development Activities” means the development,
construction, equipping, and completion of any fixtures, infrastructure, or
other works of improvement, including, without limitation, grading,
installation of utilities, excavation, demolition, lot development, and any
other activities that could give rise to a Mechanics Lien.
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(2) “Encroachments” means any overlaps, boundary line disputes,
and any other encroachments with respect to any Real Property adjoining the
Mortgaged Property or any easements encumbering the Mortgaged Property.
(3) “Losses” means liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, charges, expenses and disbursements
(including reasonable attorney’s fees and expenses) of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted
against Administrative Agent or Lenders.
(4) “Mechanic’s Lien(s)” means any and all Liens filed by any
Person, directly or indirectly (including through any number of tiers of
contractors, subcontractors, or material suppliers) furnishing, or claiming to
have furnished, materials, labor, or services for or in connection with a
Project, other than any Lien held by Administrative Agent.
(5) “Project” means performance and completion of all Development
Activities with respect to any portion of the Mortgaged Property as to which
Development Activities have commenced as of the date of this Guaranty. A
Project shall not be deemed completed until all Development Activities
contemplated by any applicable Contractual Obligations with respect to such
Project, including any applicable Purchase/Option Agreement, has been
completed and unconditional releases of all applicable Mechanics Liens has
been delivered to Borrowers and Administrative Agent.
(6) “Project Costs” means any and all costs, expenses, and liabilities
for and/or in connection with a Project, including: costs for labor, goods,
materials, and services; all architectural, engineering and consulting fees;
all permitting fees, licensing fees, amounts payable under construction
contracts and subcontracts, costs of bonds, and any and all other costs of
such Project what could give rise to a Mechanics Lien. “Project Costs” shall
also include any and all costs, expenses, and outlays intended to be funded
under a Revolving Commitment, or that the Loan Agreement requires Borrowers to
pay, with respect to a Project.
(7) “Survey Exceptions” means (1) those exceptions to an ALTA lender’s title policy that would customarily be eliminated upon the delivery
of an ALTA Survey, including the following sections of the Florida Form 9
Endorsement to an ALTA Title Policy: the second sentence of Section l(b) and
sections l(b)(3), l(b)(4), 3(a), 4 and 5; and (2) an exception to an ALTA
title policy which eliminates one or more of the coverages described in clause
(1) as a result of existing development on the subject Real Property.
(b) Payment of Project Costs. Guarantors do hereby, jointly and
severally, unconditionally, absolutely and irrevocably guarantee to the
Administrative Agent, for the benefit of the Lenders and their respective
successors and assigns, as a primary obligor and not merely as a surety that
Borrowers shall fully and punctually pay and discharge all Project Costs, in
accordance with the Loan Agreement and the other Loan Documents, as the same
may become due and payable, and pay and discharge all proper claims and
demands (subject to any Good Faith Contest) for any Project Costs.
(c) Removal of Mechanics Liens. Guarantor shall promptly pay,
bond, or otherwise remove any Mechanics’ Liens that may be filed at any time
with respect to the Project,
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including, without limitation, any and all Mechanics Liens (1) disclosed
pursuant to Title Policies issued (or committed to be issued) to Administrative
Agent on or about the Closing Date; or (2) otherwise subject on or about the
Closing Date to a recorded notice of commencement or similar document evidencing
the commencement of a work of improvement on the subject Mortgaged Property.
Notwithstanding the foregoing, (i) Guarantors shall not be required to take any
action with respect to any Mechanic’s Lien that Borrowers have timely removed in
accordance with the Loan Agreement or that are the subject of a Good Faith
Contest; and (ii) Administrative Agent shall not be required to accept additional
Real Property as a Borrowing Base Asset if Mechanics Liens encumber such
properties at the time acquired; instead, any such Mechanics Liens shall be
subject to Administrative Agent’s approval in its sole and absolute discretion.
(d) Completion of Development Activities. Guarantors shall promptly
and in compliance with the Loan Agreement complete or cause the completion of all
Development Activities with respect to a Project in accordance with all
applicable Contractual Obligations, all free and clear of all material defects
and in full compliance with all Requirements of Law and free of Mechanic’s Liens.
(e) Losses Arising from Survey Exceptions. Guarantors agree and
acknowledge that (1) Borrowers have not delivered certain updated ALTA Survey’s
to Administrative Agent with respect to portions of the Mortgaged Property, and,
as a result, the Title Policies issued at closing contain certain Survey
Exceptions that would otherwise be unacceptable to Administrative Agent; and (2)
Administrative Agent’s willingness to accept such Title Policies subject to the
Survey Exceptions is expressly conditioned upon Guarantors’ agreement to
indemnify, defend, and hold harmless Administrative Agent against Losses that
could have been avoided had an ALTA Survey been timely delivered and the Survey
Exceptions removed from the Title Policies. In consideration of the foregoing,
Guarantors do hereby, jointly and severally, unconditionally, absolutely and
irrevocably guarantee to the Administrative Agent, for the benefit of the Lenders
and their respective successors and assigns, as a primary obligor and not merely
as a surety, any Losses arising out of or in connection with the existence of any
Liens in respect of the Mortgaged Property, including, without limitation, any
Encroachments, to the extent such Liens and Encroachments: (i) are not already
specifically included as exceptions in the Title Policies (other than in or
through any Survey Exceptions); and (ii) would have been revealed by a current
ALTA Survey of the subject Mortgaged Property performed as of the date of the
subject Title Policy. Guarantors agree to indemnify, defend, and hold harmless
Administrative Agent and Lenders from and against any such Losses.
(f)
Reimbursement of Administrative Agent. If Administrative Agent
shall, in accordance with the Loan Agreement: (a) cause any Development
Activities with respect to a Project to be performed; (b) pay any Project Costs;
or (c) cause any Mechanic’s Lien to be released, paid, bonded or discharged; then
Guarantors shall immediately reimburse Administrative Agent for all sums paid by
Administrative Agent including any reasonable attorneys’ fees in connection
therewith.
(g) Guaranteed Obligations. Each of the obligations of Guarantors as
set forth in this Section 1 are referred to as the “Guaranteed Obligations.” Each
Guarantor further agrees that the Guaranteed Obligations may be not Modified,
waived, accelerated or compromised from
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time to time, in whole or in part, without notice to or further
assent from it, and that it will remain bound upon its guarantee
notwithstanding any Modification, waiver, acceleration or compromise of
any of the Guaranteed Obligations.
(ii) Nature of Guaranty. This is an irrevocable,
absolute,
continuing guaranty of payment and performance and not a guaranty of
collection. Each Guarantor waives any right to require that any resort be had
by the Administrative Agent or any Lender to any of the security held for
payment of the Guaranteed Obligations or to any balance of any deposit account
or credit on the books of the Administrative Agent or any Lender in favor of
Borrowers or any other person. This Guaranty may not be revoked by Guarantors
and shall continue to be effective with respect to the Guaranteed Obligations
arising or created after any attempted revocation by Guarantors. It is the
intent of Guarantors that the obligations and liabilities of Guarantors
hereunder are absolute and unconditional under any and all circumstances and
that until the Guaranteed Obligations are fully and finally satisfied, such
obligations and liabilities shall not be discharged or released in whole or in
part, by any act or occurrence which might, but for the provisions of this
Guaranty, be deemed a legal or equitable discharge or release of Guarantors.
(iii) Rights Independent. The obligations of Guarantors
hereunder are independent of the Obligations of Borrowers or the obligations
of any other Person, including any other Person executing a guaranty of any or
all of the Guaranteed Obligations (such Person, an “Other Guarantor”) or any
security for the Guaranteed Obligations, and the Administrative Agent may
proceed in the enforcement hereof independently of any other right or remedy
that the Administrative Agent may at any time hold with respect to the
Guaranteed Obligations or any security or other guarantee therefor. The
Administrative Agent may file a separate action or actions against Guarantors
hereunder, whether action is brought and prosecuted with respect to any
security or against Borrowers or any Other Guarantor or any other Person, or
whether Borrowers or any Other Guarantor or any other Person is joined in any
such action or actions. Each Guarantor waives the benefit of any statute of
limitations affecting its liability hereunder or the enforcement of the
Guaranteed Obligations. The liability of Guarantors hereunder shall be
reinstated and revived, and the rights of the Administrative Agent and each
Lender shall continue, with respect to any amount at any time paid on account
of the Guaranteed Obligations which shall thereafter be required to be
restored or returned by the Administrative Agent or any Lender upon the
bankruptcy, insolvency, or reorganization of Borrowers or any other Person, or
otherwise, all as though such amount had not been paid. Each Guarantor further
agrees to the extent (i) Borrowers or any Guarantor make any payment to the
Administrative Agent or any Lender in connection with the Guaranteed
Obligations and all or any part of such payment is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid
by the trustee, receiver or any other entity, whether under any Bankruptcy Law
or otherwise, or (ii) in the event following the payment in full of the
principal amount of the Loan, the Administrative Agent or any Lender is
subject to further liability, loss, or expense covered by the indemnification
obligations set forth in the Loan Documents (the payments and obligations
referred to in clauses (i) and (ii) above are hereafter referred to,
collectively, as “Preferential Payments”), then this Guaranty shall
continue to be effective or shall be reinstated, as the case may be, and, to
the extent of such payment or repayment by the Administrative Agent or such
Lender, the Guaranteed Obligations or part thereof intended to be satisfied by
such Preferential
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Payment shall be revived and continued in full force and effect as if said
Preferential Payment had not been made.
(iv) Authority to Modify the Guaranteed Obligations. Each
Guarantor authorizes the Administrative Agent and each Lender, without notice to
or demand on Guarantors and without affecting its liability hereunder or the
enforceability hereof, from time to time to: (a) Modify, waive, accelerate or
compromise the time for payment or the terms of the Guaranteed Obligations or any
part thereof, including increase or decrease the rates of interest thereon; (b)
Modify, waive, accelerate, compromise, or enter into or give any agreement,
approval, or consent with respect to, the Guaranteed Obligations or any part
thereof or any of the Loan Documents or any security or additional guaranties, or
any condition, covenant, default, remedy, right, representation, or term thereof
or thereunder; (c) accept new or additional instruments, documents, or agreements
in exchange for or relative to any of the Loan Documents or the Guaranteed
Obligations or any part thereof; (d) accept partial payments on the Guaranteed
Obligations; (e) receive and hold additional security or guaranties for the
Guaranteed Obligations or any part thereof or this Guaranty; (f) release,
reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer,
and enforce the Guaranteed Obligations or any security or any other guaranties,
and apply any security and direct the order or manner of sale thereof as the
Administrative Agent or such Lender in its discretion may determine; (g) release
Borrowers or any other Person or any Other Guarantor from any personal liability
with respect to the Guaranteed Obligations or any part thereof; (h) settle,
release on terms reasonably satisfactory to the Administrative Agent or such
Lender or by operation of law or otherwise, compound, compromise, collect, or
otherwise liquidate or enforce any of the Guaranteed Obligations and any security
or other guarantee in any manner, consent to the transfer of any security, and
bid and purchase at any sale; and (i) consent to the merger or any other change,
restructure, or termination of the corporate existence of Borrowers or any other
Person and correspondingly restructure the Guaranteed Obligations, and any such
merger, change, restructure, or termination shall not affect the liability of
Guarantors hereunder or the enforceability hereof with respect to all Guaranteed
Obligations.
(v) Waiver of Defenses.
(a) Each Guarantor waives any right to require the Administrative Agent or
any Lender, prior to or as a condition to the enforcement of this Guaranty, to:
(i) proceed against Borrowers or any other Person or any Other Guarantor; (ii)
proceed against or exhaust any security for the Guaranteed Obligations or to
marshal assets in connection with foreclosing collateral security; (iii) give
notice of the terms, time, and place of any public or private sale of any
security for the Guaranteed Obligations; or (iv) pursue any other remedy in the
Administrative Agent’s or such Lender’s power whatsoever.
(b) Each Guarantor waives any defense arising by reason of: (i) any
disability or other defense of Borrowers or any other Person with respect to the
Guaranteed Obligations; (ii) the unenforceability or invalidity of the Guaranteed
Obligations, any of the Loan Documents or any security or any other guarantee for
the Guaranteed Obligations, or the lack of perfection or failure of priority of
any security for the Guaranteed Obligations; (iii) the cessation from any cause
whatsoever of the liability of Borrowers or any other Person or any Other
Guarantor (other than by reason of the full payment and discharge of the
Guaranteed Obligations); (iv) any act or
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omission of the Administrative Agent or any Lender or any other Person which
directly or indirectly results in or aids the discharge or release of Borrowers or
any other Person or the Guaranteed Obligations or any security or other guarantee
therefor by operation of law or otherwise; (v) the taking or accepting of any
other security, collateral or guaranty, or other assurance of the payment or
performance of all or any of the Guaranteed Obligations; (vi) any release,
surrender, exchange, subordination, deterioration, waste, loss or impairment by
the Administrative Agent or any Lender (including any negligent impairment but
excluding any gross negligent or willful impairment) of any collateral, property
or security, at any time existing in connection with, or assuring or securing
payment of, all or any part of the Guaranteed Obligations; (vii) the failure of
the Administrative Agent, any Lender or any other Person to exercise diligence or
reasonable care in the preservation, protection, enforcement, sale or other
handling or treatment of all or any part of any collateral, property or security
(but excluding any gross negligence or willful misconduct on the part of the
Administrative Agent or any Lender); (viii) the fact that any collateral,
security, security interest or lien contemplated or intended to be given, created
or granted as security for the repayment of the indebtedness evidenced by the
Notes or the Guaranteed Obligations shall not be properly perfected or created, or
shall prove to be unenforceable or subordinate to any other security interest or
lien, it being recognized and agreed by each Guarantor that such Guarantor is not
entering into this Guaranty in reliance on, or in contemplation of the benefits
of, the validity, enforceability, collectibility or value of any of the collateral
for the Guaranteed Obligations or any security interest in such collateral; (ix)
any payment by Borrowers to the Administrative Agent or any Lender is held to
constitute a preference under the Bankruptcy Code or any another federal, state or
local laws concerning bankruptcy, insolvency, reorganization or relief of debtors,
or for any reason the Administrative Agent or any Lender is required to refund
such payment or pay such amounts to Borrowers or any other Person legally entitled
thereto; and (x) any and all other suretyship or guarantor defenses that may be
available to Guarantors.
(c) Each Guarantor waives: (i) all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, and all other notices of any kind or nature whatsoever with respect to
the Guaranteed Obligations, and notices of acceptance of this Guaranty and of the
existence, creation, or incurring of new or additional Guaranteed Obligations;
(ii) any rights to set-offs, recoupments, claims or counterclaims; and (iii) any
right to revoke or terminate this Guaranty.
(vi) Subordination.
(a) Each Guarantor hereby covenants and agrees that the principal of, or
interest on, all now existing and hereafter arising Indebtedness of Borrowers to
Guarantor (the “Claims”) and all rights and remedies of Guarantors with respect
thereto and any lien securing payment thereof are and shall continue to be
subject, subordinate and rendered junior in the right of payment to all amounts
due and payable in respect of the Guaranteed Obligations, as the same may be
Modified, waived, accelerated or compromised from time to time.
(b) Guarantors represent and warrant to the Administrative Agent that
Guarantors are or will be the sole and absolute owners of the Claims and have not
sold, assigned, transferred or otherwise disposed of any right they may have to
repayment of the Claims or any security therefor. Guarantors hereby further
covenant and agree that upon the occurrence and
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during the continuation of any Potential Default or Event of Default,
until the Guaranteed Obligations are paid and performed in full: (i)
Guarantors will not receive, directly or indirectly, any payment, advance,
credit or further security of any kind whatsoever on account of the Claims;
(ii) Guarantors will not sell, assign, transfer or endorse the Claims or any
part or evidence thereof; (iii) Guarantors will not Modify the Claims or any
part or evidence thereof; and (iv) Guarantors will not take, or permit any
action to be taken, to assert, collect or enforce the Claims or any part
thereof.
(c) Upon any distribution of all of the assets of any Borrower to its
creditors upon the dissolution, winding up, liquidation, arrangement, or
reorganization of any Borrower, whether in any bankruptcy, insolvency,
arrangement, reorganization or receivership proceeding or upon an assignment
for the benefit of creditors or any other marshalling of the assets and
liabilities of any Borrower or otherwise, any payment or distribution of any
kind (whether in cash, property or securities) which is payable or deliverable
upon or with respect to the Claims shall be held in trust for the
Administrative Agent and the Lenders and shall be paid over or delivered to
the Administrative Agent for the benefit of the Lenders to be applied against
the payment or prepayment of the Guaranteed Obligations until the Guaranteed
Obligations shall have been indefeasibly paid in full. If any proceeding
referred to in the preceding sentence is commenced by or against any Borrower:
(i) the Administrative Agent is hereby irrevocably authorized and empowered
(in its own name or in the name of Guarantors or otherwise), but shall have no
obligation, to demand, xxx for, collect and receive every payment or
distribution referred to the preceding sentence and give acquittance therefor
and to file claims and proofs of claim and take such other action (including,
without limitation, voting the Claims or enforcing any security interest or
other lien securing payment of the Claims) as the Administrative Agent may
deem necessary or advisable for the exercise or enforcement of any of the
rights or interests of the Administrative Agent hereunder; and (ii) Guarantors
shall duly and promptly take such action as the Administrative Agent may
reasonably request (A) to collect the Claims for account of the Administrative
Agent and to file appropriate claims or proofs of claim in respect of the
Claims, (B) to execute and deliver to the Administrative Agent such powers of
attorney, assignments, or other instruments as it may reasonably request in
order to enable it to enforce any and all claims with respect to, and any
security interests and other liens securing payment of, the Claims, and (C) to
collect and receive any and all payments or distributions which may be payable
or deliverable upon or with respect to the Claims.
(d) All payments or distributions upon or with respect to the Claims
which are received by Guarantor contrary to the provisions of this Guaranty
shall be received in trust for the benefit of the Administrative Agent, shall
be segregated from other funds and property held by Guarantors and shall be
forthwith paid over to the Administrative Agent in the same form as so
received (with any necessary endorsement) to be applied (in the case of cash)
to, or held as collateral (in the case of non-cash property or securities)
for, the payment or prepayment of the Guaranteed Obligations.
(vii) Deferral of Subrogation. Until all of the Guaranteed
Obligations have been paid and performed in full, (i) Guarantors shall not
exercise any rights of subrogation, contribution or reimbursement against any
Borrower or any Other Guarantor of the Guaranteed Obligations, and (ii)
Guarantor shall not exercise any right to enforce any right, power or remedy
which the Administrative Agent or any Lender now has or may in the future have
against Borrowers or any
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Other Guarantor and any benefit of, and any right to participate in, any
security for this Guaranty or for the obligations of Borrowers or any Other
Guarantor now or in the future held by the Administrative Agent or any Lender.
If Guarantor nevertheless receives payment of any amount on account of any
such subrogation, contribution or reimbursement rights or otherwise in respect
of any payment by Guarantor of the Guaranteed Obligations prior to payment and
performance in full of all of the Guaranteed Obligations, such amount shall be
held in trust for the benefit of the Administrative Agent and immediately paid
to the Administrative Agent for application to the Guaranteed Obligations in
such order and manner as the Administrative Agent may determine.
(viii) Condition of Borrowers. Each Guarantor represents and
warrants to the Administrative Agent, for the benefit of the Lenders that: (a)
this Guaranty is executed at the request of Borrowers; (b) such Guarantor has
established adequate means of obtaining from Borrowers on a continuing basis
financial and other information pertaining to the business of each such
Borrower; (c) such Guarantor is now and will continue to be adequately
familiar with the business, operations, condition, and assets of Borrowers;
(d) such Guarantor will receive substantial direct and indirect benefits from
the financing arrangements contemplated by the Loan Documents; and (e) the
agreements, waivers and acknowledgements contained herein are knowingly made
in contemplation of such benefits. Each Guarantor hereby waives and
relinquishes any duty on the part of the Administrative Agent or any Lender to
disclose to such Guarantor any matter, fact or thing relating to the business,
operations, condition, or assets of Borrowers now known or hereafter known by
the Administrative Agent or any Lender during the life of this Guaranty. With
respect to any of Guaranteed Obligations, neither the Administrative Agent nor
any Lender need inquire into the powers of Borrowers or the officers or
employees acting or purporting to act on its behalf, and all Guaranteed
Obligations made or created in good faith reliance upon the professed exercise
of such powers shall be guaranteed hereby.
(ix) Representations and Warranties of Guarantor. Each
Guarantor represents and warrants to the Administrative Agent that all of
representations and warranties relating to such Guarantor contained in the
Loan Agreement are true and correct. Each Guarantor further represents and
warrants to the Administrative Agent that all of the representations and
warranties set forth in Schedule 1 hereto are true and correct as of
the date hereof.
(x) Payments. All payments made by Guarantors to or for the
account of the Administrative Agent or any Lender shall be made without
condition or deduction of any kind, including for any counterclaim, defense,
recoupment of set-off. All payments made by Guarantors hereunder shall be made
free and clear of and without deduction for any present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and all liabilities with respect thereto (collectively,
“Taxes”). Guarantors shall pay such Taxes and shall promptly furnish to the
Administrative Agent copies of any tax receipts or such evidence of payment as
the Administrative Agent or any Lender may reasonably require.
(xi) Costs and Expenses in Enforcement. Each Guarantor agrees
to pay to the Administrative Agent all out of pocket advances, charges, costs,
and expenses, including reasonable attorneys fees, incurred or paid by the
Administrative Agent in exercising any right, power, or remedy conferred by
this Guaranty, or in the enforcement of this Guaranty, whether or not an
action is filed in connection therewith.
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(xii) Notices. All notices, requests, demands and other
communications which are required or may be given under this Guaranty shall be
in writing and shall be delivered to the parties hereto in the manner provided
in the Loan Agreement to the following addresses:
To Guarantors:
|
Technical Olympic USA, Inc. | |
| Xxxxx 000-X | ||
| 0000 Xxxxxxxxx Xxxx. | ||
| Xxxxxxxxx, XX 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxxxx X. Xxxxxxxx, Esq. | ||
| c/o TOUSA Homes, L.P. | ||
| c/oTechnical Olympic USA, Inc. | ||
| Xxxxx 000-X | ||
| 0000 Xxxxxxxxx Xxxx. | ||
| Xxxxxxxxx, XX 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxxxx X. Xxxxxxxx, Esq. | ||
with a copy to:
|
Xxxxxxxxx Xxxxxxx P.A. | |
| 0000 Xxxxxxxx Xxxxxx | ||
| Xxxxx, XX 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxx Xxxxxxxxx, Esq. | ||
To Administrative Agent:
|
Deutsche Bank Trust Company Americas | |
| 000 Xxxxxxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxx, Xxxxx 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxx Xxxxxx | ||
With a copy to:
|
Xxxxxx & Xxxxxxx LLP | |
| 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxx Xxxxxxx, Xxxxxxxxxx 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxx X. Xxxxxx, Esq. |
Any party may change the address to which notices are to be sent by notice of such change to each
other party given as provided above.
(xiii) Termination. The guarantees made hereunder (a) shall terminate when all of
the Guaranteed Obligations have been indefeasibly paid and performed in full, and (b) shall
continue to be effective or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any Guaranteed Obligation is rescinded or must otherwise be restored by any Lender or
Guarantor upon the bankruptcy or reorganization of any Borrower, Guarantor or otherwise.
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(xiv) No
Waiver; Cumulative Remedies. The rights, powers and
remedies of the Administrative Agent hereunder and under the other Loan Documents
are cumulative and in addition to all rights, power and remedies provided under
any and all agreements among Guarantors, Borrowers, the Administrative Agent and
the Lenders relating to the Guaranteed Obligations, at law, in equity or
otherwise. Any delay or failure by the Administrative Agent to exercise any right,
power or remedy shall not constitute a waiver thereof by the Administrative Agent
or the Lenders, and no single or partial exercise by the Administrative Agent of
any right, power or remedy shall preclude any other or further exercise thereof or
any exercise of any other rights, powers or remedies. Without limiting the
foregoing, the Administrative Agent on behalf of the Lenders is hereby authorized
to demand specific performance of this Guaranty at any time when Guarantors shall
have failed to comply with any of the provisions of this Guaranty applicable to
it.
(xv) Amendments. Subject to Section 9.2 of the Loan Agreement,
this Guaranty may be Modified only by, and none of the terms hereof may be
waived without, a written instrument executed by each Guarantor and the
Administrative Agent.
(xvi) Waivers. Each Guarantor warrants and agrees that each of the
waivers set forth in this Guaranty are made with such Guarantor’s full knowledge
of their significance and consequences, and that under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any of such
waivers are determined to be contrary to any applicable law or public policy, such
waivers shall be effective only to the maximum extent permitted by law.
(xvii) Binding Agreement. This Guaranty and the terms, covenants, and
conditions hereof shall be binding upon and inure to the benefit of Guarantors,
the Administrative Agent, each Lender, and their respective successors and
assigns; provided, however, that Guarantors shall not be permitted to transfer,
convey, assign or delegate this Guaranty or any interest herein without the prior
written consent of the Administrative Agent and, to the extent required pursuant
to the Loan Agreement, the Lenders. Each Lender may assign its interest hereunder
in whole or in part in connection with an assignment of its interest in the
Guaranteed Obligations pursuant to Section 9.8(1) of the Loan Agreement.
(xviii) GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES.
(xix) JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS GUARANTY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY
OF THIS GUARANTY, EACH GUARANTOR CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH GUARANTOR
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY ACTION
10
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS GUARANTY. EACH GUARANTOR WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NEW YORK LAW.
(xx) WAIVER OF JURY TRIAL. EACH GUARANTOR, AND BY ACCEPTANCE OF THIS GUARANTY, THE
ADMINISTRATIVE AGENT AND EACH OF THE LENDERS, WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF
THE PARTIES TO THE LOAN AGREEMENT AGAINST ANY OTHER PARTY OR ANY PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. GUARANTOR, AND BY ACCEPTANCE OF THIS
GUARANTY, THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS, AGREES THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, GUARANTOR,
AND BY ACCEPTANCE OF THIS GUARANTY, THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS, FURTHER
AGREES THAT ITS RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS GUARANTY OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY.
(xxi) Severability. In case any one or more of the provisions contained in this
Guaranty should be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular provision hereof in a
particular jurisdiction shall not in and of itself affect the validity of such provision in any
other jurisdiction). The parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.
(xxii) Miscellaneous. All words used herein in the plural shall be deemed to have been
used in the singular, and all words used herein in the singular shall be deemed to have been used
in the plural, where the context and construction so require. Section headings in this Guaranty are
included for convenience of reference only and are not a part of this Guaranty for any other
purpose.
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IN WITNESS WHEREOF, each Guarantor has caused
this Guaranty to be duly executed as of the date first
written above.
| GUARANTORS: | ||||||
| TECHNICAL OLYMPIC USA, INC. | ||||||
| By: | /s/ Xxxxx XxXxxx | |||||
| Name: Xxxxx XxXxxx | ||||||
| Title: Executive Vice President | ||||||
| TOUSA HOMES, L.P. | ||||||
| By: | /s/ Xxxxx XxXxxx | |||||
| Name: Xxxxx XxXxxx | ||||||
| Title: Executive Vice President | ||||||
Signature
page to Completion Guaranty
Schedule 1
Representations and Warranties of Each Guarantor
1. Organization;
Requisite Power and Authority; Qualification.
| (a) | Such Guarantor (A) is either a corporation, a limited partnership or a limited liability company duly incorporated, formed or organized, validly existing, and in good standing under the laws of the state of its incorporation, organization and/or formation, (B) is duly qualified to do business and is in good standing under the laws of each jurisdiction in which the failure to be so qualified and in good standing will have or is reasonably expected to have a Material Adverse Effect, and (C) has all requisite corporate, partnership or limited liability company power and authority to own, operate and encumber its Property and to conduct its business as presently conducted and as proposed to be conducted in connection with and following the consummation of the transactions contemplated by this Agreement. Such Guarantor is a single member limited liability company for purposes of federal income taxation and for purposes of the tax laws of any state or locality in which it is subject to taxation based on its income. | |
| (b) | True, correct and complete copies of the Organizational Documents of such Guarantor have been delivered to the Administrative Agent and have not been Modified except to the extent indicated therein. All of the Organization Documents are in full force and effect, and there are no defaults under such Organizational Documents (including with respect to any restrictions on Indebtedness contained therein), and no events which, with the passage of time or giving of notice or both, would constitute a default under such Organizational Documents (including with respect to any restrictions on Indebtedness contained therein). | |
| (c) | Such Guarantor has the requisite power and authority to execute, deliver and perform this Agreement and each of the other Loan Documents which are required to be executed on its behalf. The execution, delivery and performance of each of the Loan Documents which must be executed in connection with this Agreement by such Guarantor and to which such Guarantor is a party and the consummation of the transactions contemplated thereby are within such Guarantor’s partnership, company, or corporate powers, have been duly authorized by all necessary partnership, company, or corporate action and such authorization has not been rescinded. No other partnership, company, or corporate action or proceedings on the part of such Guarantor is necessary to consummate such transactions. | |
| (d) | Each of the Loan Documents to which such Guarantor is a party has been duly executed and delivered on behalf of such Guarantor and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms (subject to bankruptcy, insolvency, reorganization, or other laws affecting creditors’ rights generally and to principles of equity, regardless of whether considered in a proceeding in equity or at law), is in full force and effect and all the terms, provisions, agreements and conditions set forth therein and required to be performed or complied |
