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Exhibit 10.5
AMENDED AND RESTATED SUBSIDIARY
GUARANTEE
AMENDED
AND RESTATED SUBSIDIARY GUARANTEE, dated as of August 16, 2007,
made by each of the signatories hereto (together with any other
entity that may become a party hereto as provided herein, the
“ Guarantors ”), in favor of Sheridan Asset
Management LLC (the “ Lender ”) pursuant to
that certain Loan Agreement, dated as of April 6, 2007, between
Universal Property Development and Acquisition Corporation ,
a Nevada corporation (“ UPDA ”) and the Lender
and that certain Loan Agreement dated as of August 16, 2007 between
UPDA, and the Lender.
W I T N E S S E T
H:
WHEREAS, pursuant to
that certain Loan Agreement, dated as April 6, 2007, by and between
UPDA and the Lender (as amended as of August 16, 2007, the “
UPDA First Loan Agreement ”), the Lender has agreed to
make a term loan to UPDA (the “ UPDA First Loan
”) evidenced by UPDA’s Senior Secured Promissory Note,
due April 6, 2008 (as amended, the “ UPDA First Note
”), subject to the terms and conditions set forth
therein;
WHEREAS, pursuant to
that certain Loan Agreement dated as of August 16, 2007, by and
between UPDA and the Lender (the “ UPDA Second Loan
Agreement ”, together with the UPDA First Loan Agreement,
the “ Loan Agreements ”), the Lender agreed to
make another loan to UPDA (the “ UPDA Second Loan
”) evidenced by the UPDA’s Senior Secured Promissory
Note, as amended, due August 16, 2010 (the “ UPDA Second
Note ”, together with the UPDA First Note, the “
Notes ”), subject to the terms and conditions set
forth therein;
WHEREAS, each
Guarantor will directly benefit from the extension of credit to
UPDA represented by the issuance of the Notes; and
NOW,
THEREFORE, in consideration of the premises and to induce the
Lender to enter into the Loan Agreements and to carry out the
transactions contemplated thereby, each Guarantor hereby agrees
with the Lender as follows:
1.
Definitions . Unless otherwise defined herein, terms defined
in the Loan Agreements or the Notes and used herein shall have the
meanings given to them in the Loan Agreements or the Notes, as such
terms relate to such agreements. The words “hereof,”
“herein,” “hereto” and
“hereunder” and words of similar import when used in
this Guarantee shall refer to this Guarantee as a whole and not to
any particular provision of this Guarantee, and Section and
Schedule references are to this Guarantee unless otherwise
specified. The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms. The following terms shall have the following
meanings:
“
Guarantee ” means this Subsidiary Guarantee, as the
same may be amended, supplemented or otherwise modified from time
to time.
“
Obligations ” means the collective reference to all
obligations and undertakings of UPDA of whatever nature, monetary
or otherwise, under the Notes, the Loan Agreements, the Security
Agreement (as defined in the UPDA Second Loan Agreement),
Transaction Documents or any other future agreement or obligations
undertaken by UPDA to the Lender, together with all reasonable
attorneys’ fees, disbursements and all other costs and
expenses of collection incurred by Lender in enforcing any of such
Obligations and/or this Guarantee.
“
Transaction Documents ” means the Loan Agreements, the
Notes, the Security Documents as defined under the UPDA Second Loan
Agreement, the Registration Rights Agreement as defined under the
UPDA Second Loan Agreement, the Registration Rights Agreement dated
as of April 6, 2007 by and between UPDA and the Lender, the Warrant
issued pursuant to the UPDA Second Loan and the Warrant issued
pursuant to the UPDA First Loan, the Subordination Agreement as
defined under the UPDA Second Loan Agreement and any other
documents or agreements executed in connection with the
transactions contemplated hereunder or required to be executed
pursuant to the terms of the UPDA First Loan Agreement or the UPDA
Second Loan Agreement.
2.
Guarantee .
(a) Guarantee.
(i) The
Guarantors hereby, jointly and severally, unconditionally and
irrevocably, guarantee to the Lender and its successors, indorsees,
transferees and assigns, the prompt and complete payment and
performance by UPDA when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
(ii) Anything
herein or in any other Transaction Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder
and under the other Transaction Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor under
applicable federal and state laws, including laws relating to the
insolvency of debtors, fraudulent conveyance or transfer or laws
affecting the rights of creditors generally (after giving effect to
the right of contribution established in Section 2(b)).
(iii) Each
Guarantor agrees that the Obligations may at any time and from time
to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section
2 or affecting the rights and remedies of the Lender
hereunder.
(iv) The
guarantee contained in this Section 2 shall remain in full force
and effect until all the Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall
have been satisfied by payment in full.
(v) No
payment made by UPDA, any of the Guarantors, any other guarantor or
any other Person or received or collected by the Lender from UPDA,
any of the Guarantors, any other guarantor or any other Person by
virtue of any action or proceeding or any set-off or appropriation
or application at any time or from time to time in reduction of or
in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Obligations or
any payment received or collected from such Guarantor in respect of
the Obligations), remain liable for the Obligations up to the
maximum liability of such Guarantor hereunder until the Obligations
are paid in full.
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(vi) Notwithstanding
anything to the contrary in this Agreement, with respect to any
defaulted non-monetary Obligations the specific performance of
which by the Guarantors is not reasonably possible (e.g. the
issuance of UPDA’s common stock), the Guarantors shall only
be liable for making the Lender whole on a monetary basis for
UPDA’s failure to perform such Obligations in accordance with
the Transaction Documents.
(b)
Right of Contribution . Each Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Guarantor
shall be entitled to seek and receive contribution from and against
any other Guarantor hereunder which has not paid its proportionate
share of such payment. Each Guarantor’s right of contribution
shall be subject to the terms and conditions of Section 2(c). The
provisions of this Section 2(b) shall in no respect limit the
obligations and liabilities of any Guarantor to the Lender, and
each Guarantor shall remain liable to the Lender for the full
amount guaranteed by such Guarantor hereunder.
(c)
No Subrogation . Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any
Guarantor by the Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Lender against UPDA or any
other Guarantor or any collateral security or guarantee or right of
offset held by the Lender for the payment of the Obligations, nor
shall any Guarantor seek or be entitled to seek any contribution or
reimbursement from UPDA or any other Guarantor in respect of
payments made by such Guarantor hereunder, until all amounts owing
to the Lender by UPDA on account of the Obligations are paid in
full. If any amount shall be paid to any Guarantor on account of
such subrogation rights at any time when all of the Obligations
shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Lender, segregated from other funds of
such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Lender in the exact form received
by such Guarantor (duly indorsed by such Guarantor to the Lender if
required), to be applied against the Obligations, whether matured
or unmatured, in such order as the Lender may determine.
(d)
Amendments, Etc. With Respect to the Obligations . Each
Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without
notice to or further assent by any Guarantor, any demand for
payment of any of the Obligations made by the Lender may be
rescinded by the Lender and any of the Obligations continued, and
the Obligations, or the liability of any other Person upon or for
any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the
Lender, and the Loan Agreements and the other Transaction Documents
and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Lender may deem advisable from time to
time, and any collateral security, guarantee or right of offset at
any time held by the Lender for the payment of the Obligations may
be sold, exchanged, waived, surrendered or released. The Lender
shall have no obligation to protect, secure, perfect or insure any
Lien at any time held by them as security for the Obligations or
for the guarantee contained in this Section 2 or any property
subject thereto.
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(e)
Guarantee Absolute and Unconditional . Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual
of any of the Obligations and notice of or proof of reliance by the
Lender upon the guarantee contained in this Section 2 or acceptance
of the guarantee contained in this Section 2; the Obligations, and
any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in
reliance upon the guarantee contained in this Section 2; and all
dealings between UPDA and any of the Guarantors, on the one hand,
and the Lender, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives to the
extent permitted by law diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon UPDA or any
of the Guarantors with respect to the Obligations. Each Guarantor
understands and agrees that the guarantee contained in this Section
2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or
enforceability of the Loan Agreements or any other Transaction
Document, any of the Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at
any time or from time to time held by the Lender, (b) any defense,
set-off or counterclaim (other than a defense of payment or
performance or fraud or misconduct by Lender) which may at any time
be available to or be asserted by UPDA or any other Person against
the Lender, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of UPDA or such Guarantor) which
constitutes, or might be construed to constitute, an equitable or
legal discharge of UPDA for the Obligations, or of such Guarantor
under the guarantee contained in this Section 2, in bankruptcy or
in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any
Guarantor, the Lender may, but shall be under no obligation to,
make a similar demand on or otherwise pursue such rights and
remedies as it may have against UPDA, any other Guarantor or any
other Person or against any collateral security or guarantee for
the Obligations or any right of offset with respect thereto, and
any failure by the Lender to make any such demand, to pursue such
other rights or remedies or to collect any payments from UPDA, any
other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of
offset, or any release of UPDA, any other Guarantor or any other
Person or any such collateral security, guarantee or right of
offset, shall not relieve any Guarantor of any obligation or
liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law,
of the Lender against any Guarantor. For the purposes hereof,
“demand” shall include the commencement and continuance
of any legal proceedings.
(f)
Reinstatement . The guarantee contained in this Section 2
shall continue to be effective, or be reinstated, as the case may
be, if at any time payment, or any part thereof, of any of the
Obligations is rescinded or must otherwise be restored or returned
by the Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of UPDA or any Guarantor, or upon or
as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for UPDA or any
Guarantor or any substantial part of its property, or otherwise,
all as
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