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EXHIBIT 10.133
LOAN GUARANTY AGREEMENT
THIS LOAN GUARANTY AGREEMENT (the " Guaranty Agreement
"), is made as of the 29th day of September, 2006, by STANLEY E.
THOMAS and THOMAS ENTERPRISES, INC. (collectively, "
Guarantor ") to IA Orlando Sand, L.L.C., a Delaware limited
liability company (referred to herein as " Lender ").
W I T N E S S E T H:
WHEREAS, Fourth Quarter Properties 124, LLC, a Georgia limited
liability company (the " Borrower "), has requested from
Lender a loan in the principal amount of Forty One Million Four
Hundred Seventy Seven Thousand Sixty Two and 84/100 Dollars
($41,477,062.84) (the " Loan ") for the purpose of providing
acquisition funding for that certain real estate located in the
County of Orange, State of Florida, described on Exhibit "A"
attached hereto and made a part hereof (the " Property "),
and it will be of substantial economic benefit to the Guarantor for
the Borrower to issue the Note and borrow the principal evidenced
thereby, Guarantor expecting to receive, directly or indirectly,
economic benefit from Borrower's acquisition and construction of
the Property; and
WHEREAS, the Loan is to be evidenced by that certain Promissory
Note dated as of even date herewith (the " Note ") in the
principal amount of the Loan executed by Borrower and payable to
the order of Lender and is to be secured by, inter alia, that
certain First Mortgage and Security Agreement (the "
Mortgage ") from Borrower to Lender, as mortgagee, which
will encumber the Property and by certain other documents (the
Note, the Mortgage and such other documents, as the same may from
time to time be amended, being collectively referred to herein as
the " Loan Documents "); and
WHEREAS, Lender is willing to extend the Loan only on the
condition that Guarantor, irrevocably and unconditionally, fully
guarantees to Lender the full and prompt payment when due of all
principal, interest, default interest, late charges, fees, premiums
and all other sums from time to time outstanding under the Loan
Documents and the performance by Borrower of Borrower's obligations
to duly, promptly and completely observe, perform and discharge
each and every obligation, covenant and agreement contained in the
Loan Documents. (All amounts from time to time outstanding
under the Loan Documents, including, without limitation, principal,
interest, default interest, late charges, fees, premiums and all
other sums from time to time outstanding under the Loan Documents,
are sometimes collectively referred to herein as the "
Indebtedness "); and
WHEREAS, Guarantor is willing to irrevocably and
unconditionally, fully guarantee the Indebtedness.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Guarantor hereby
covenants and agrees as follows:
1.
Guarantor hereby irrevocably, absolutely and unconditionally,
fully guarantees to Lender: (a) the full and prompt
payment when due, whether by lapse of time, declaration,
acceleration or otherwise, and at all times thereafter, of
any and all of the Indebtedness and the prompt payment to
Lender of all costs and expenses (including attorneys' fees and
disbursements) incurred by Lender in collection of the Indebtedness
or the enforcement of this Guaranty Agreement against Guarantor;
(b) the performance by Borrower of Borrower's obligation to
duly, promptly and completely observe, perform and discharge each
and every obligation, covenant and agreement contained in the Loan
Documents; (c) any and all claims which may arise related to
environmental issues affecting the Property, whether now existing
or hereafter arising, and whether or not affecting the Property
from adjacent or off-site sources; and (d) any costs, expenses
and/or claims related to the existence of any munitions and/or
ordinance on or about the Property. Guarantor agrees that if
any of the Indebtedness is not paid according to the tenor thereof,
whether by acceleration or otherwise, Guarantor shall immediately
pay all of the Indebtedness as if the Indebtedness constituted the
direct and primary obligation of Guarantor. Guarantor further
agrees that if any obligation, covenant or agreement contained in
any of the Loan Documents is not observed, performed or discharged
as required by such instrument, Guarantor shall, observe, perform
or discharge such obligation, covenant or agreement in like manner
as if the same constituted the direct and primary obligation of
Guarantor. Notwithstanding the satisfaction by Guarantor of
any liability hereunder, Guarantor shall not have any right of
subrogation, reimbursement or indemnity whatsoever or any right of
recourse to or with respect to the assets or property of Borrower
or to any collateral for the Loan unless and until Lender has
received full payment of all principal, interest and other sums
payable under the Loan. Guarantor understands and
acknowledges that by virtue of this Guaranty it has specifically
assumed any and all risks of a bankruptcy or reorganization case or
proceeding affecting Borrower, and, as an example and not by way of
limitation, a subsequent modification of the Note or any of the
other Loan Documents in any reorganization case concerning Borrower
shall not affect the obligations of Guarantor hereunder.
2.
This Guaranty Agreement shall be in full force and effect
continuously from the date hereof to and until the date (the "
Termination Date ") on which the Note is repaid in full and
any continuing liability of Guarantor pursuant to Paragraphs 5 and
29 of this Guaranty Agreement has been satisfied, whereupon this
Guaranty Agreement shall terminate.
3.
Guarantor grants Lender, in Lender's sole and absolute
discretion and without notice to Guarantor, the power and authority
to deal in any lawful manner with the Indebtedness and, without
limiting the generality of the foregoing, further power and
authority, from time to time:
(a)
to renew, compromise, extend, accelerate or otherwise change the
time or place of payment of or to otherwise change the terms of the
Indebtedness or of any document relating thereto;
(b)
to modify or to waive any of the terms of any agreement with
Borrower pertaining to the Indebtedness;
(c)
to take and hold security for the payment of the Indebtedness,
and to exchange, enforce, waive or release any such security;
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(d)
to direct the order or manner of sale of any such security as
Lender in its discretion may determine; and/or
(e)
to grant any indulgence, forbearance, waiver or release to
Borrower.
The liability of Guarantor shall not be terminated, affected,
impaired or reduced in any way by any action taken by Lender under
the foregoing provisions or any other provision hereof or by any
delay, failure or refusal of Lender to exercise any right or remedy
Lender may have against Borrower or any other person, including
other guarantors, if any, liable for all or any part of the
obligations guaranteed herein by Guarantor.
4.
Guarantor shall not have any right of recourse against Lender by
reason of any action Lender may take or omit to take under the
provisions of this Guaranty Agreement or under the provisions of
any of the Loan Documents.
5.
Satisfaction by Guarantor of any liability hereunder incident to
a particular default under the Note or under any of the other Loan
Documents shall not discharge Guarantor except for the default
satisfied, it being the intent hereof that this Guaranty Agreement
and the obligations of Guarantor hereunder shall be continuing and
irrevocable until the Termination Date. Further, if at any
time all or any part of any payment received by Lender from
Guarantor under or with respect to this Guaranty Agreement is or
must be rescinded or returned for any reason whatsoever (including,
but not limited to, the insolvency, bankruptcy or reorganization of
Guarantor), then Guarantor's obligations hereunder shall, to the
extent of the payment rescinded or returned, be deemed to have
continued in existence, notwithstanding such previous receipt of
payment by Lender, and Guarantor's obligations hereunder shall
continue to be effective or be reinstated, as the case may be, as
to such payment, all as though such previous payment to Lender had
never been made.
6.
Guarantor hereby waives notice of acceptance of this Guaranty
Agreement by Lender, and this Guaranty Agreement shall immediately
be binding upon Guarantor.
7.
To the extent permitted by law, Guarantor hereby waives and
agrees not to assert or take advantage of: (a) any right
to require Lender to proceed against Borrower or any other person
or to proceed against or exhaust any security held by Lender at any
time or to pursue any other remedy in Lender's power before
proceeding against Guarantor hereunder; (b) the defense of the
statute of limitations in any action hereunder or in any action for
the collection of the Indebtedness or the performance of any
obligation hereby guaranteed; (c) any defense that may arise
by reason of the incapacity, lack of authority, death or disability
of any other person or persons or the failure of Lender to file or
enforce a claim against the estate (in administration, bankruptcy
or any other proceeding) of any other person or persons;
(d) demand, presentment for payment, notice of non- payment,
protest, notice of protest and all other notices of any kind,
including, without limiting the generality of the foregoing, notice
of the existence, creation or incurring of any new or additional
indebtedness or obligation or of any action or non-action on the
part of Borrower, Lender, any endorser or creditor of Borrower or
of Guarantor or of other guarantors or on the part of any other
person whomsoever under this or any other instrument in connection
with any obligation or evidence of indebtedness held by Lender as
collateral or in connection with the Indebtedness hereby
guaranteed; (e) any defense based upon an election of
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remedies by Lender which destroys or otherwise impairs any or
all of the subrogation rights, if any, of Guarantor, the right of
Guarantor to proceed against Borrower or any other person for
reimbursement, or both; (f) all duty or obligation on Lender's
part to perfect, protect, retain or enforce any security for the
payment of the Indebtedness; (g) any principle or provision of
law, statutory or otherwise, which is or might be in conflict with
the terms and provisions of this Guaranty Agreement; and
(h) any duty on the part of Lender to disclose to Guarantor
any facts Lender may now or hereafter know about Borrower,
regardless of whether or not Lender has reason to believe that any
such facts materially increase the risk beyond that which Guarantor
intends to assume or has reason to believe that such facts are
unknown to Guarantor or has a reasonable opportunity to communicate
such facts to Guarantor, it being understood and agreed that
Guarantor is fully responsible for being and keeping informed of
the financial condition of Borrower and of any and all
circumstances bearing on the risk that liability may be incurred by
Guarantor hereunder.
8.
In addition to all liens and rights of setoff given to Lender by
law against any property of Borrower or of Guarantor, Lender shall
have a general lien on and security interest in and a right of
setoff against all property of Guarantor now or hereafter in the
physical possession of or on deposit with Lender, whether held in a
general or special account, on deposit or for safekeeping or
otherwise. Each such lien, security interest and right of
setoff may be enforced or exercised without demand upon or notice
to Guarantor at any time following the failure of performance by
Guarantor hereunder, shall continue in full force unless
specifically waived or released by Lender in writing and shall not
be deemed waived by any conduct of Lender, by any failure of Lender
to exercise any such right of setoff or to enforce any such lien or
security interest or by any neglect or delay in so doing.
9.
With or without notice to Guarantor, Lender, in Lender's sole
discretion and at any time and from time to time and in such manner
and upon such terms as Lender deems fit, may: (a) apply
any or all payments or recoveries from Borrower or from any other
guarantor or endorser under any other instrument or realized from
any security, in such manner and order of priority as Lender may
determine, to any indebtedness of Borrower to Lender, whether or
not such indebtedness is guaranteed hereby or is otherwise secured
or is due at the time of such application; or (b) refund to
Borrower any payment received by Lender upon the Indebtedness
hereby guaranteed without affecting in any way Guarantor's
obligation or liability hereunder for payment of the Indebtedness.
Any recovery realized from any other guarantor under any
other instrument shall be first credited upon that portion of the
Indebtedness which exceeds the maximum liability of Guarantor, if
any, hereunder.
10.
The amount of Guarantor's liability and all rights, powers and
remedies of Lender hereunder shall be cumulative and not
alternative and such rights, powers and remedies shall be in
addition to all rights, powers and remedies given to Lender by law
or under the Loan Documents. This Guaranty Agreement is in
addition to and separate and apart from the guaranty of any other
guarantor of the Indebtedness or of any other indebtedness or
obligation.
11.
The liability of Guarantor under this Guaranty Agreement shall
be an absolute, direct, immediate and unconditional guarantee of
payment and not of collectibility. The obligations of
Guarantor hereunder are independent of the obligations of Borrower
and, in the event of any default hereunder, a separate action or
actions may be brought and prosecuted
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against Guarantor whether or not Borrower is joined therein or a
separate action or actions are brought against Borrower.
Lender may maintain successive actions for other defaults
continuing beyond any applicable cure period. Lender's rights
hereunder shall not be exhausted by its exercise of any of its
rights or remedies or by any such action or by any number of
successive actions. If Guarantor consists of two or more
persons or entities, the obligations of each person or entity
hereunder are joint and several obligations and Lender may maintain
a separate action or actions against each, prosecute an action or
actions against either or any of them without prosecuting an action
or actions against the other or may prosecute an action or actions
jointly against all persons and entities. The death or
dissolution of any Guarantor shall not terminate this Guaranty
Agreement as to any surviving Guarantor, and shall not terminate
this Guaranty Agreement as to the estate of any deceased
Guarantor.
12.
In the event of the dissolution, liquidation or insolvency
(howsoever evidenced) of, or the institut
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