EXHIBIT 10.4
GUARANTY
THIS GUARANTY is made and entered into by ORLEANS
HOMEBUILDERS, INC., a Delaware corporation (the "Guarantor"), for the benefit of
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association ("Agent"),
as agent for each of the Lenders that are party to the Loan Agreement referred
to below.
1. OBLIGORS. The "Obligors" means Greenwood Financial, Inc., a Delaware
corporation ("Master Borrower"), and each of the other Borrower entities from
time to time party to that certain Amended and Restated Revolving Credit Loan
Agreement dated as of January 24, 2006, by and among Master Borrower, the
current Borrowers, Agent and Lenders (the "Loan Agreement"). Capitalized terms
used but not defined herein shall have the respective meanings ascribed to them
in the Loan Agreement.
2. OBLIGATIONS. The "Obligations" means all existing and hereafter
incurred or arising indebtedness, obligations and liabilities of the Obligors to
the Lenders, whether absolute or contingent, direct or indirect arising out of
the Loan Agreement, promissory notes made by Borrowers to Lenders (the "Notes")
dated of even date herewith in the aggregate principal amount of $650,000,000,
and all replacements thereof (the "Notes") and the Mortgages referred to
therein, including without limitation all interest, expenses, costs (including
collection costs) and fees (including reasonable attorney's fees and prepayment
fees) incurred, arising or accruing (whether prior or subsequent to the filing
of any bankruptcy petition by or against any Obligor) under or in connection
with any of the foregoing. If the term "Obligor" includes more than one person
or entity, the Obligations shall include all Obligations of any one or more of
such persons or entities, whether such Obligations are individual, joint,
several or joint and several.
3. UNCONDITIONAL GUARANTY. In consideration of the existing
Obligations, Guarantor, intending to be legally bound, absolutely and
unconditionally guaranties to Lenders the payment, performance and satisfaction
when due (whether by stated maturity, demand, acceleration or otherwise) of all
Obligations. The obligations of the Guarantor hereunder shall continue in full
force and effect irrespective of the validity, legality or enforceability of any
agreements, notes or documents pursuant to which any of the Obligations arise,
or the existence, value or condition of any collateral for any of the
Obligations, or of any other guaranty of the Obligations, or any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or guarantor.
4. COST OF ENFORCEMENT. Guarantor agrees to pay Agent and Lenders all
costs and expenses (including reasonable attorney's fees) at any time incurred
by Lenders in the enforcement of this Guaranty against Guarantor.
5. PAYMENT BY GUARANTOR. Payment by Guarantor is due upon demand by
Agent and is payable in immediately available funds in lawful money of the
United States of America.
6. CONTINUING GUARANTY. This Guaranty shall continue in full force and
effect with respect to Guarantor until all Obligations have been paid, performed
and satisfied in full.
7. WAIVERS AND CONSENTS BY GUARANTOR. Guarantor unconditionally
consents to, and waives as a defense to liability hereunder, each of the
following: (a) any waiver, inaction, delay or lack of diligence by Agent or
Lenders in enforcing their rights against any Obligor or in any property, or the
unenforceability of any such rights, including any failure to perfect, protect
or preserve any lien or security interest which may be intended directly or
indirectly to secure any of the Obligations, and the absence of notice thereof
to Guarantor, (b) the absence of any notice of the incurrence or existence of
any Obligation, (c) any action, and the absence of notice thereof to Guarantor,
taken by Agent or Lenders or any Obligor with respect to any of the Obligations,
including any release, subordination or substitution of any collateral or
release, termination, compromise, modification or amendment of any instrument
executed by or applicable to any Obligor or of any claim, right or remedy
against any Obligor or any property, (d) any impairment of Guarantor's right to
reimbursement by way of subrogation, indemnification or contribution, (e) any
other action taken or omitted by Agent and Lenders in good faith with respect to
the Obligations, (f) the absence or inadequacy of any formalities of every kind
in connection with enforcement of the Obligations, including presentment,
demand, notice and protest, and (g) the waiver of any rights of Agent and
Lenders under or any action taken or omitted by Agent or Lenders with respect to
any other guaranty of the Obligations.
8. OTHER AGREEMENTS BY GUARANTOR. Guarantor agrees that there shall be
no requirement that Lenders document their acceptance of this Guaranty, evidence
its reliance thereon, or that Lenders take any action against any person or any
property prior to taking action against Guarantor. Guarantor further agrees that
Lenders' rights and remedies hereunder shall not be impaired or subject to any
stay, suspension or other delay as a result of any Obligor's insolvency or as a
result of any proceeding applicable to any Obligor or any Obligor's property
under any bankruptcy or insolvency law. Guarantor also agrees that payments and
other reductions on the Obligations may be applied to such of the Obligations
and in such order as Lenders may elect.
9. SUBROGATION AND SIMILAR RIGHTS. Guarantor will not exercise any
rights with respect to Lenders or any Obligor related to or acquired in
connection with or as a result of its making of this Guaranty which it may
acquire by way of subrogation, indemnification or contribution, by reason of
payment made by it hereunder or otherwise, until after the date on which all of
the Obligations shall have been satisfied in full, and until such time any such
rights against Borrowers shall be fully subordinate in lien and payment to any
claim in connection with the Obligations which Lenders now or hereafter have
against any Obligor. If any amount shall be paid to Guarantor on account of such
subrogation, indemnification or contribution at any time when all of the
Obligations and all other expenses guaranteed pursuant hereto shall not have
been paid in full, such amount shall be held in trust for the benefit of
Lenders, shall be segregated from the other funds of Guarantor and shall
forthwith be paid over to Agent to be applied in whole or in part by Lenders
against the Obligations, whether matured or unmatured, in such order as the
Lenders shall determine in their discretion pursuant to the Loan Agreement. If
Guarantor shall make payment to Agent or Lenders of all or any portion of the
Obligations and all of the Obligations shall be paid in full, Guarantor's right
of subrogation shall be without recourse to and without any implied warranties
by Agent or Lenders and shall remain fully subject and subordinate to Lenders'
right to collect any other amounts which may thereafter become due to Lenders by
the Borrowers in connection with the Obligations.
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10. REINSTATEMENT OF LIABILITY. If any claim is made upon the Agent or
Lenders for repayment or recovery of any amount or amounts received by Agent or
Lenders in payment or on account of any Obligations and Lenders repay all or
part of said amount by reason of (a) any judgment, decree or order of any court
or administrative body having jurisdiction over the Lenders or any of their
property, or (b) any settlement or compromise in good faith with any such
claimant (including Obligor), then and in such event Guarantor agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon the
Guarantor, notwithstanding any termination hereof or the cancellation of any
note or other instrument evidencing any Obligation, and Guarantor shall remain
liable to the Lenders hereunder for the amount so repaid or recovered to the
same extent as if such amount had never originally been received by Lenders.
11. SECURITY INTEREST. Guarantor hereby assigns to each Lender a
security interest in any balance or assets in any deposit or other account of
Guarantor in or with such Lender whenever and so long as any of the Obligations
shall be outstanding and unpaid and agrees that the security interest hereby
granted shall be independent of the right of setoff, but the application of any
proceeds thereof shall be governed by the Loan Agreement.
12. EFFECT OF OTHER AGREEMENTS. The provisions of this Guaranty are
cumulative and concurrent with Agent's and Lenders' rights and remedies against
Guarantor under any existing or future agreement pertaining to or evidencing any
of the Obligations. No such additional agreement shall be deemed a modification
or waiver hereof unless expressly so agreed by Lenders in writing in accordance
with the Loan Agreement. If Agent or Lenders hold any other guaranty or surety
agreement applicable to any of the Obligations, the liability of Guarantor
hereunder shall be joint and several with each party obligated on such other
guaranty or surety agreement, unless otherwise agreed by Lenders in writing in
accordance with the Loan Agreement.
13. NOTICES. All notices given under this Guaranty shall be given in
the manner to the addresses set forth in the Loan Agreement.
14. MISCELLANEOUS.
14.1 No amendment of any provision of this Guaranty shall be
effective unless it is in writing and signed by Guarantor and Agent and has been
approved by Lenders in accordance with the provisions of the Loan Agreement. No
waiver of any provisions of this Guaranty, and no waiver or consent to any
departure by the Guarantor therefrom, shall be effective unless it is in writing
and signed by Agent after receipt of Lenders' approval in accordance with the
provisions of the Loan Agreement, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
14.2 Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
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14.3 The obligations of Guarantor hereunder shall not be
subject to any counterclaim, setoff, deduction or defense based upon any related
or unrelated claim which Guarantor may now or hereafter have against Agent or
any Lender or any Obligor, except payment of the Obligations, and shall not be
affected by any change in any Obligor's legal status or ownership or by any
change in corporate, partnership or other organizational structure applicable to
any Obligor.
14.4 This Guaranty shall (i) be binding on Guarantor and its
successors and assigns, and (ii) inure, together with all rights and remedies of
Agent and Lenders hereunder, to the benefit of Agent and Lenders and their
respective successors, transferees and assigns. Notwithstanding the foregoing
clause (i), none of the rights or obligations of Guarantor hereunder may be
assigned or otherwise transferred.
14.5 This Guaranty shall be governed by and construed in
accordance with the internal laws, and not the law of conflicts, of the
Commonwealth of Pennsylvania.
15. CONSENT TO JURISDICTION AND VENUE. IN ANY LEGAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS
GUARANTY OR THE RELATIONSHIP EVIDENCED HEREBY, GUARANTOR HEREBY IRREVOCABLY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
IN OR SERVING BUCKS OR PHILADELPHIA COUNTIES IN THE COMMONWEALTH OF PENNSYLVANIA
AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR
MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. GUARANTOR AGREES
THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY
MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO GUARANTOR.
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16. WAIVER OF JURY TRIAL. GUARANTOR HEREBY WAIVES, AND AGENT AND
LENDERS BY THEIR ACCEPTANCE HEREOF HEREBY WAIVE, TRIAL BY JURY IN ANY LEGAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS
GUARANTY OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR AGENT AND LENDERS TO ENTER INTO, ACCEPT OR RELY UPON THIS
GUARANTY.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of this
24th day of January, 2006.
ORLEANS HOMEBUILDERS, INC., a
Delaware corporation
By: Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Chief Financial Officer
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