Guaranty Agreement
THIS GUARANTY AGREEMENT
dated January 3,
2006 (the “ Guaranty ”), is
executed by Malcom J. Wright individually and American
Leisure Holdings, Inc., a Nevada Corporation,
(collectively referred to herein as the “
Guarantor ”) and extended to Bankers
Credit Corporation, a Florida Corporation, ( the “
Lender ”) for the benefit of Reedy
Creek Acquisition Company, LLC, a Florida Limited Liability
Company (herein collectively referred to as the “
Borrower ”).
Recitals
:
A
Lender has agreed to make a loan
(the “ Loan ”) to Borrower pursuant to
the terms and conditions of, among other documents, a Promissory
Note of even date executed and delivered by Borrower in favor of
Lender in the original principal amount of Seven Million
and 00/100 dollars ($7,000,000.00) (the “
Note ”) secured by a mortgage on real
property located in Osceola County , Florida (the
“ Mortgage” ), and other documents.
The Note and Mortgage, and the other loan documents executed
contemporaneously therewith, are hereinafter referred to
collectively as the “ Security Documents
” or as the “ Loan Documents
.”
B
Guarantor:
Malcom J. Wright
individually and American Leisure Holdings, Inc., a Nevada
Corporation
C
Without this Guaranty, Lender would
be unwilling to make the Loan to Borrower.
D
Because of the direct benefit to
Guarantor from the Loan to Borrower, and as an inducement to Lender
to make the Loan to Borrower, Guarantor agrees to guarantee to
Lender the obligations of Borrower as set forth herein.
NOW, THEREFORE, in consideration of Lender entering into the
Loan Agreement and making the Loan to Borrower, and for other good
and valuable consideration by Borrower to Guarantor, the receipt
and sufficiency of which is hereby acknowledged by Guarantor,
Guarantor hereby covenants and agrees as follows:
2
Unlimited Guaranty of
Payment .
Guarantor hereby unconditionally guarantees to Lender the payment,
when due, by acceleration or otherwise, of the Loan principal,
together with all interest, costs, expenses, and attorneys’
fees related to the Indebtedness. For the purposes hereof, the term
“ Indebtedness ” shall include any and
all indebtedness and obligations of Borrower to Lender, including
without limitation, the loan principal, together with interest,
fees and expenses, including attorneys’ fees, evidenced by
the Note, the Loan Agreement, the Security Documents or otherwise,
or arising in connection with the Loan, whether existing now or
arising hereafter, as such Indebtedness may be modified, increased,
extended or renewed from time to time. The guaranty of Guarantor as
set forth in this section is a guaranty of payment and not of
collection. The amount of this Guaranty shall not be diminished,
limited, or otherwise affected by payments made under the Loan
except for full and complete satisfaction of the Debt evidenced by
Lender’s execution of a Satisfaction of Mortgage.
3
Subordination . All rights and claims of Guarantor now or
hereafter existing (collectively the “ Guarantor
Claims ”) against Borrower or any of
Borrower’s property which Borrower now owns or shall acquire
in the future or hereafter existing shall be subordinate and
subject in right of payment to the prior payment in full of the
indebtedness to Lender.
Until the indebtedness has been paid in full and
Guarantor shall have performed or satisfied all of its obligations
hereunder, Guarantor shall not receive or collect, directly or
indirectly, from Borrower or any other party any payment upon
Guarantor Claims, nor seek to realize upon any collateral securing
such Guarantor Claims nor claim any offset or other reduction of
Guarantor’s obligations hereunder because of any Guarantor
Claims. Notwithstanding the foregoing, if Guarantor should receive
any such payment, Guarantor agrees to hold same in trust for Lender
and agrees that Guarantor shall have absolutely no rights in or to
or dominion over, such payments except to pay them promptly to
Lender without demand by Lender.
4
Guarantor
Waivers .
Guarantor hereby waives and agrees not to assert or take advantage
of (a) any right or claim of right to cause a
marshaling of any of Borrower’s assets or the assets of any
other party now or hereafter held as security for the indebtedness;
(b) the defense of the statute of limitations in
any action hereunder or for the payment of the indebtedness and
performance of any obligation hereby guaranteed;
(c) any defense that may arise by reason of the
incapacity, lack of authority, death or disability of Guarantor,
any other guarantor of the Loan, or Borrower or any other person or
entity, or the voluntary or involuntary dissolution of Borrower or
Guarantor, or the failure of Lender to file or enforce a claim
against the estate (either in administration, Bankruptcy, or any
other proceeding) of Borrower or any other person or entity;
(d) any defense based on the failure of Lender to
give notice of the existence, creation, or incurring of any new or
additional indebtedness or obligation, or of any action or
nonaction on the part of any other person whomsoever, or any
modification of the terms of the Loan Documents, or the
indebtedness, in connection with any obligation hereby guaranteed;
(e) any defense based upon an election of remedies
by Lender which destroys or otherwise impairs any subrogation
rights of Guarantor or any other guarantor of the Loan or the right
of Guarantor to proceed against Borrower or any other guarantor for
reimbursement, or both; (f) any defense based upon
failure of Lender to commence an action against Borrower;
(g) any defense based upon acceptance of this
Guaranty by Lender; (h) any defense based upon the
invalidity or unenforceability of any of the Loan Documents;
(i) any defense based upon any limitation of
liability contained in any of the Loan Documents;
(j) any defense based upon any transfer by
Borrower of all or any part of the Collateral; (k)
any defense based upon the failure of Lender to perfect any
security or to extend or renew the perfection of any security; and
(l) any other legal or equitable defenses
whatsoever to which Guarantor might otherwise be
entitled.
5
Consent to Lender’s
Actions or Inactions . Guarantor consents that Lender may, at any
time and from time to time, before or after any Default by
Borrower, without affecting the liability of Guarantor hereunder
and with or without further notice to or assent from
Guarantor:
a
either with or without
consideration to Borrower or to any guarantor guaranteeing the
payment of any portion of the indebtedness, or any pledgor or
grantor of any collateral; exchange, release or surrender (in whole
or in part), or fail to protect or to preserve the value of any
collateral now or hereafter held as security for the Loan, or
waive, release or subordinate any lien or security interest (in
whole or in part) in or on any such collateral;
b
waive or delay the exercise of any
of its rights or remedies against Borrower or any other person or
entity, including without limitation, any guarantor guaranteeing
any portion of the indebtedness; notwithstanding any waiver or
delay, Lender shall not be precluded from further exercise of any
of its rights, powers or privileges expressly provided for herein
or otherwise available, it being understood that all such rights
and remedies are cumulative;
c
waive or extend the time of
Borrower’s or any other guarantor’s performance of any
and all terms, provisions and conditions set forth in the Loan
Documents;
d
release Borrower or any other
person or entity, including without limitation, any other guarantor
guaranteeing payment of any portion of the indebtedness, from their
obligations to complete the Project and/or from their obligations
to repay all or any portion of the indebtedness;
e
proceed against Guarantor without
first proceeding against or joining Borrower or any other guarantor
guaranteeing payment of any portion of the indebtedness or any
endorser of the Note, or any property securing the payment of the
indebtedness;
f
renew, extend or modify the terms
of the Loan or any instrument or agreement evidencing, securing, or
relating to the Loan;
g
generally deal with Borrower or
other person or party or any Collateral as Lender may see fit;
and
Guarantor shall remain bound under this Guaranty
notwithstanding any such exchange, release, surrender,
subordination, waiver (whether or not such waiver is oral or
written), delay, proceeding, renewal, extension, modification, act
or failure to act, or other dealings described in Subsections 5(a)
through 5(h) above, inclusive, even though done without notice to
or consent from Guarantor.
6
Waiver of
Notice .
Guarantor waives all notices whatsoever with respect to the Loan
Documents, including without limitation, this Guaranty, and with
respect to the Loan, including but not limited to, notice
of:
a
Lender’s acceptance of this
Guaranty or its intention to act, or its action, in reliance
hereon;
b
the making of the Loan by Lender to
Borrower;
c
presentment and demand for payment
of the Loan or any portion thereof;
d
protest and notice of dishonor or
non-payment with respect to the Loan or any portion
thereof;
e
any Default by Borrower or any
pledgor, grantor of security, or any other guarantor guaranteeing
payment of any portion of the indebtedness;
f any
other notices to which Guarantor may otherwise be entitled;
and
g
any demand for payment under this
Guaranty.
7
Primary Liability of
Guarantor .
Guarantor agrees that this Guaranty may be enforced by Lender
without the necessity at any time of resorting to or exhausting any
other security or collateral and without the necessity at any time
of having resorted to recourse to the Note or the Collateral
through foreclosure proceedings under the Security Documents or
otherwise, and Guarantor hereby waives any rights to require Lender
to proceed against Borrower or any other guarantor or to require
Lender to pursue any other remedy or enforce any other right.
Guarantor further agrees that Guarantor shall have no right of
subrogation, reimbursement or indemnity whatsoever, nor any right
of recourse to security for the indebtedness of Borrower to Lender,
unless and until all of the indebtedness of Borrower to Lender has
been paid in full. Guarantor further agrees that nothing contained
herein shall prevent Lender from suing on the Note or foreclosing
the Mortgage or from exercising any other rights available to it
under any other Loan Documents, or any other instrument of security
if neither Borrower nor Guarantor timely performs the obligations
of Borrower thereunder, and the exercise of any of the aforesaid
rights and the completion of any foreclosure proceedings shall not
constitute a discharge of any of Guarantor’s obligations
hereunder; it being the purpose and intent of Guarantor that
Guarantor’s obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances.
Neither Guarantor’s obligations under this Guaranty nor any
remedy for the enforcement thereof shall be impaired, modified,
changed or released in any manner whatsoever by an impairment,
modification, change, release or limitation of the liability of
Borrower or any other guarantor or by reason of Borrower’s or
any other guarantor’s Bankruptcy, insolvency, death, or
dissolution. At any time Lender is entitled to exercise its
remedies hereunder, it may in its discretion elect to demand
payment or performance. In the even
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