EXHIBIT 10.19(c)
AMENDED AND RESTATED
GUARANTY
THIS AMENDED AND RESTATED GUARANTY
(this “Guaranty”) is made and entered into by ORLEANS
HOMEBUILDERS, INC., a Delaware corporation
(“Guarantor”), for the benefit of WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association
(“Agent”), as agent for each of the Lenders (as defined
below) that are party to the Loan Agreement referred to and defined
below.
BACKGROUND
A.
Pursuant to that certain Amended and
Restated Revolving Credit Loan Agreement dated as of
December 22, 2004 (the “Original Loan Agreement”),
executed by Greenwood Financial, Inc. (“Master
Borrower”), certain affiliates of Master Borrower as
Borrowers, the Lenders party thereto from time to time
(“Lenders”) and Agent, such Lenders agreed to provide a
credit facility to Borrowers on the terms and conditions contained
in the Original Loan Agreement to finance Borrowers’
acquisition of residential real estate and construction
activities.
B.
In connection with the Original Loan
Agreement Guarantor executed and delivered to Agent that certain
Guaranty dated December 22, 2004, for the benefit of Lenders
(the “Original Guaranty”) guarantying the Obligations
as such term is defined in the Original Guaranty);
C.
Master Borrower, Borrowers, the
Lenders and Agent amended and restated the Original Loan Agreement
pursuant to that certain Amended and Restated Revolving Credit Loan
Agreement dated January 24, 2006 (the “First Amended and
Restated Loan Agreement”);
D.
In connection with the Existing Loan
Agreement, Guarantor executed and delivered that certain Guaranty
dated January 24, 2006, for the benefit of Lenders (as amended
prior to the date hereof, the “January 2006
Guaranty,” and collectively with the Original Guaranty
hereafter referred to as the “Existing Guaranties”)
guarantying the Obligations as such term is defined in the
January 2006 Guaranty;
E.
Master Borrower, Borrowers, the
Lenders and Agent have since amended the First Amended and Restated
Loan Agreement pursuant to that certain First Amendment dated as of
November 11, 2006 (the “First Amendment”), that
certain Second Amendment dated as of February 7, 2007 (the
“Second Amendment”), that certain Third Amendment dated
as of May 8, 2007 (the “Third Amendment”), that
certain Fourth Amendment dated as of September 6, 2007 (the
“Fourth Amendment”), and that certain Fifth Amendment
dated as of December 21, 2007 (the “Fifth
Amendment”);
F.
Collectively, the First Amended and
Restated Loan Agreement, the First Amendment, the Second Amendment,
the Third Amendment, the Fourth Amendment and the Fifth Amendment
are hereafter referred to as the “Existing Loan
Agreement”;
G.
Master Borrower, Borrowers and
Lenders are amending and restating the Existing Loan Agreement on
the terms and conditions set forth in that certain Second Amended
and Restated Revolving Credit Loan Agreement of even date herewith
(the “Second Amended and Restated Loan Agreement,” and
collectively with the Existing Loan Agreement hereafter referred to
as the “Loan Agreement”);
H.
As a condition to Lenders agreeing
to the terms and conditions of the Second Amended and Restated Loan
Agreement, Lenders are requiring Guarantor to execute and deliver
this Guaranty to continue its guaranty of the Obligations (as
hereafter define) and to continue to secure its guaranty thereof
with a first priority lien on all of its deposit accounts held at a
Lender as provided for herein, pursuant to that certain Security
Agreement of even date herewith among Master Borrower, Affiliate
Grantors (as defined therein) and Agent for each of the Lenders and
in the Loan Documents;
NOW, THEREFORE, intending to be
legally bound and primarily liable therefore, and to induce Lenders
to make or continue to make Loans to or for the benefit of Master
Borrower and Borrowers or in respect of which Master Borrower or
Borrower are, may be or may become liable to Lenders under any of
the Loan Documents, Guarantor hereby agrees that the Existing
Guaranties are hereby amended and restated as follows:
1.
OBLIGORS.
The “Obligors” means Master Borrower, and each of the
other Borrower entities from time to time party to the Loan
Agreement. Capitalized terms used but not defined herein
shall have the respective meanings ascribed to them in the Second
Amended and Restated Loan Agreement.
2.
OBLIGATIONS. The
“Obligations” means all existing and hereafter incurred
or arising Indebtedness, whether absolute or contingent, direct or
indirect, 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 and is surety to Lenders for the
payment, performance and satisfaction when due (whether by stated
maturity, demand, acceleration or otherwise) of all
Obligations. The obligations of 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.
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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 not
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