|
Exhibit
10.58
GUARANTY
AGREEMENT
THIS GUARANTY dated
February , 2008 (together with any
amendments or modifications hereto in effect from time to time, the
“ Guaranty ” ), made by COMSTOCK
POTOMAC YARD, L.C. , a Virginia limited liability company
having an address at
( “ Guarantor ” ), in favor of
STONEHENGE FUNDING, LC , having an office at 11465 Sunset
Hills Road, #620, Reston, Virginia 20190 ( “ Lender
” ).
To induce Lender to make
loans, extensions of credit or other financial accommodations to
COMSTOCK HOLDING COMPANIES, INC. ( “
Borrower ” ), now or in the future, to secure the
observance, payment and performance of the Liabilities (as defined
below), and with full knowledge that Lender would not make the said
loans, extensions of credit or financial accommodations without
this Guaranty Agreement, which shall be construed as a contract of
suretyship, Guarantor jointly and severally, and unconditionally
agrees as follows:
1. LIABILITIES
GUARANTEED .
1.1. Guarantor, jointly and
severally, hereby guarantees and becomes surety to Lender for the
full, prompt and unconditional payment of the Liabilities (as
defined below), when and as the same shall become due, whether at
the stated maturity date, by acceleration or otherwise, and the
full, prompt and unconditional performance of each term and
condition to be performed by Borrower under the Loan Documents (as
defined below). This Guaranty is a primary obligation of Guarantor
and shall be a continuing inexhaustible Guaranty. This is a
guaranty of payment and not of collection. Lender may require
Guarantor to pay and perform its liabilities and obligations under
this Guaranty and may proceed immediately against Guarantor without
being required to bring any proceeding or take any action against
Borrower, any other guarantor or any other person, entity or
property prior thereto, the liability of Guarantor hereunder being
joint and several, and independent of and separate from the
liability of Borrower, any other guarantor or person, and the
availability of other collateral security for the Note and the
other Loan Documents.
2. DEFINITIONS
.
2.1. “ Note
” means that certain Promissory Note of even date
herewith in the principal amount of Four Million and 00/100 Dollars
($4,000,000) from Borrower to Lender.
2.2. “ Loan
Documents ” shall have the meaning set forth in the
Note. The terms of the Loan Documents are hereby made a part of
this Guaranty to the same extent and with the same effect as if
fully set forth herein.
2.3 “
Liabilities ” means, collectively: (i) the
repayment of all sums due under the Note (and all extensions,
renewals, replacements and amendments thereof) and the other Loan
Documents; (ii) the performance of all terms, conditions and
covenants set forth in the
Loan Documents; and (iii) all other
obligations or indebtedness of Borrower to Lender whenever borrowed
or incurred, including without limitation, principal, interest,
fees, late charges and expenses, including reasonable
attorneys’ fees.
2.4 All capitalized terms not
otherwise defined herein shall have the meaning ascribed to them in
the Loan Documents.
3. REPRESENTATION AND
WARRANTIES . Guarantor represents and warrants to Lender as
follows:
3.1. Organization,
Powers . Guarantor (i) is a limited liability company
duly formed, validly existing and in good standing under the laws
of the Commonwealth of Virginia ; (ii) has the power
and authority as a limited liability company to own its properties
and assets and to carry on its business as now being conducted and
as now contemplated; and (iii) has the power and authority as
a limited liability company to execute, deliver and perform, and by
all necessary action has authorized the execution, delivery and
performance of, all of its obligations under this Guaranty and any
other Loan Document to which it is a party.
3.2. Execution of
Guaranty . This Guaranty and each other Loan Document to
which Guarantor is a party have been duly executed and delivered by
Guarantor. Execution, delivery and performance of this Guaranty and
each other Loan Document to which Guarantor is a party will not:
(i) violate any provision of law, order of any court, agency
or instrumentality of government, or any provision of any
indenture, agreement or other instrument to which it is a party or
by which it or any of its properties is bound; (ii) result in
the creation or imposition of any lien, charge or encumbrance of
any nature, other than the liens created by the Loan Documents; and
(iii) require any authorization, consent, approval, license,
exemption of, or filing or registration with, any court or
governmental authority.
3.3. Obligations of
Guarantor . This Guaranty and each other Loan Document to
which Guarantor is a party are the legal, valid and binding
obligations of Guarantor, enforceable against it in accordance with
their terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws or equitable principles
relating to or affecting the enforcement of creditors’ rights
generally. The loans or credit accommodations made by Lender to
Borrower and the assumption by Guarantor of its obligations
hereunder and under any other Loan Document to which Guarantor is a
party will result in material benefits to Guarantor. This Guaranty
was entered into by Guarantor for commercial purposes.
3.4. Litigation
. There is no action, suit, or proceeding at law or in equity or by
or before any governmental authority, agency or other
instrumentality now pending or, to the knowledge of Guarantor,
threatened against or affecting Guarantor or any of its properties
or rights which, if adversely determined, would materially impair
or affect: (i) the value of any collateral securing the
Liabilities; (ii) Guarantor’s right to carry on its
business substantially as now conducted (and as now contemplated);
(iii) its financial condition; or (iv) its capacity to
consummate and perform its obligations under this Guaranty or any
other Loan Document to which Guarantor is a party.
2
3.5. No
Defaults . Guarantor is not in default in the performance,
observance or fulfillment of any of the obligations, covenants or
conditions contained herein.
3.6. No Untrue
Statements . No Loan Document or other document,
certificate or statement furnished to Lender by or on behalf of
Guarantor contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements
contained herein and therein not misleading. Guarantor acknowledges
that all such statements, representations and warranties shall be
deemed to have been relied upon by Lender as an inducement to make
the Loan to Borrower.
4. NO LIMITATION OF
LIABILITY .
4.1. Without incurring
responsibility to Guarantor, and without impairing or releasing the
obligations of Guarantor to Lender, and without reducing the amount
due under the terms of this Guaranty, Lender may at any time and
from time to time, without the consent of or notice to Guarantor,
upon any terms or conditions, and in whole or in part:
4.1.1. Change the manner,
place or terms of payment of (including, without limitation, the
interest rate and monthly payment amount), and/or change or extend
the time for payment of, or renew or modify, any of the
Liabilities, any security therefor, or any of the Loan Documents
evidencing same, and the Guaranty herein made shall apply to the
Liabilities and the Loan Documents as so changed, extended, renewed
or modified;
4.1.2. Sell, exchange,
release, surrender, realize upon or otherwise deal with in any
manner and in any order, any property securing the
Liabilities;
4.1.3. Exercise or refrain
from exercising any rights against Borrower or other obligated
parties (including Guarantor) or against any security for the
Liabilities;
4.1.4. Settle or compromise
any Liabilities, whether in a proceeding or not, and whether
voluntarily or involuntarily, dispose of any security therefor
(with or without consideration), and subordinate the payment of any
of the Liabilities, whether or not due, to the payment of
liabilities owing to creditors of Borrower other than Lender and
Guarantor;
4.1.5. Apply any sums it
receives, by whomever paid or however realized, to any of the
Liabilities;
4.1.6. Add, release, settle,
modify or discharge the obligation of any maker, endorser,
guarantor, surety, obligor or any other party who is in any way
obligated for any of the Liabilities;
4.1.7. Accept any additional
security for the Liabilities; and/or
3
4.1.8. Take any other action
which might constitute a defense available to, or a discharge of,
Borrower or any other obligated party (including Guarantor) in
respect of the Liabilities.
4.2. The invalidity,
irregularity or unenforceability of all or any part of the
Liabilities or any Loan Document, or the impairment or loss of any
security therefor, whether caused by any action or inaction of
Lender, or otherwise, shall not affect, impair or be a defense to
Guarantor’s obligations under this Guaranty.
5. LIMITATION ON
SUBROGATION. Until such time as the Liabilities are paid in
full, Guarantor waives any present or future right to which
Guarantor is or may become entitled to be subrogated to
Lender’s rights against Borrower or to seek contribution,
reimbursement, indemnification, payment or the like, or
participation in any claim, right or remedy of Lender against
Borrower or any security which Lender now has or hereafter
acquires, whether or not such claim, right or remedy arises under
contract, in equity, by statute, under common law or otherwise. If,
notwithstanding such waiver, any funds or property shall be paid or
transferred to Guarantor on account of such subrogation,
contribution, reimbursement, or indemnification at any time when
all of the Liabilities have not been paid in full, Guarantor shall
hold such funds or property in trust for Lender and shall forthwith
pay over to Lender such funds and/or property to be applied by
Lender to the Liabilities.
6. COVENANTS
.
6.1. Financial
Statements; Compliance Certificate .
6.1.1. Guarantor shall
furnish to Lender the following financial information, in each
instance prepared in accordance with generally accepted accounting
principles consistently applied:
(a) Not later than thirty
(30) days after the filing with the Internal Revenue Service,
a true, complete and signed copy of the federal tax return,
including all schedules, of Guarantor.
(b) Such other information
respecting the financial condition of Guarantor as Lender may from
time to time reasonably request including, but not limited to, a
financial statement.
6.1.2. Guarantor shall
promptly notify Lender of the occurrence of an
|
