Exhibit 10.17
PERFORMANCE AND COMPLETION GUARANTY
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PROJECT COMMONLY KNOWN AS
"TIERRA DEL SOL PHASE I"
THIS PERFORMANCE AND COMPLETION GUARANTY ("Guaranty") made as of December
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29, 2005, by ▇▇▇▇▇▇▇ ▇. AMERICAN LEISURE HOLDINGS, INC., a Nevada corporation,
and TDS DEVELOPMENT, LLC, a Florida limited liability company (collectively,
"Guarantor"), to and for the benefit of KEYBANK NATIONAL ASSOCIATION, a national
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banking association, its successors and assigns ("Lender").
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R E C I T A L S
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A. On or about the date hereof, TIERRA DEL SOL RESORT (PHASE 1), LTD., a
Florida limited partnership, TDS TOWN HOMES (PHASE 1), LLC, a Florida limited
liability company, ▇▇▇▇▇ ▇▇▇▇▇▇ I REAL ESTATE, LLC, a Florida limited liability
company, TDS AMENITIES, INC., a Florida corporation (jointly and severally
"Borrower"), and Lender entered into that certain Loan Agreement ("Loan
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Agreement") whereby Lender agreed to make a secured revolving loan (the "Loan")
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available to Borrower in the maximum principal amount of FORTY MILLION AND
NO/100 DOLLARS ($40,000,000.00), to finance the development and construction of
a luxury townhome/condominium project to be known as "Tierra del Sol" (the
"Project"). Capitalized terms used and not otherwise defined herein shall have
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the meanings given to them in the Loan Agreement.
B. In connection with the Loan, Borrower has executed and delivered the
Note in favor of Lender of even date herewith in the maximum principal amount of
the Loan, payment of which is secured by (i) a Mortgage made by Borrower in
favor of Lender on the Project, and (ii) the other Loan Documents.
C. Guarantor will derive material financial benefit from the Loan evidenced
and secured by the Note, the Mortgage and the other Loan Documents.
D. Lender has relied on the statements and agreements contained herein in
agreeing to make the Loan. The execution and delivery of this Guaranty by
Guarantor is a condition precedent to the making of the Loan by Lender.
AGREEMENTS
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NOW, THEREFORE, intending to be legally bound, Guarantor, in consideration
of the matters described in the foregoing Recitals, which Recitals are
incorporated herein and made a part hereof, and for other good and valuable
consideration the receipt and sufficiency of which are acknowledged, hereby
covenant and agree for the benefit of Lender and its successors, endorsees,
transferees, participants and assigns as follows:
1. Guarantor, absolutely, unconditionally, and irrevocably guarantees:
(a) the full, complete and punctual observance, performance and
satisfaction of all of the obligations, duties, covenants and agreements of
Borrower under the Loan Agreement and the other Loan Documents with respect
to the Construction and completion of the Project free of any claim for
mechanics', materialmen's or any other liens, and in accordance with (1)
all Laws, (2) the Plans and Specifications and (3) the time periods and
other requirements set forth in the Loan Documents, including, without
limitation, the following:
(i) To perform, complete and pay for (or cause to be performed,
completed and paid for) the Construction and to pay all costs of said
Construction (including any and all cost overruns) and all other costs
associated with the Project (including, without limitation, the costs
of any architects' and engineers' fees), if Borrower shall fail to
perform, complete or pay for such work, including any sums expended in
excess of the amount of indebtedness incurred by Borrower under the
Loan Agreement or with respect to the Loan, whether or not the
Construction is actually completed;
(ii) If Lender exercises its right under Section 20.1(a) of the
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Loan Agreement to take possession of the Project and complete the
Construction, to reimburse Lender for all costs and expenses incurred
by Lender in excess of the applicable Budget Line Items therefor (if
any) in so taking possession of the Project and completing the
Construction pursuant to the Plans and Specifications;
(iii) If any mechanics' or materialmen's liens should be filed,
or should attach, with respect to the Project by reason of the
Construction, to immediately, or within the time period required by
the Loan Documents (if any), cause the removal of such liens, or post
security against the consequences of their possible foreclosure and
procure an endorsement(s) to the title policy insuring Lender against
the consequences of the foreclosure or enforcement of such lien(s);
(iv) If any chattel mortgages, conditional vendor's liens or any
liens, encumbrances or security interests whatsoever should be filed,
or should attach, with respect to the personal property, fixtures,
attachments and equipment delivered upon the Project and owned by
Borrower, attached to the Project or used in connection with the
construction of the Improvements, to immediately cause the removal of
such lien(s) , or within the time period required by the Loan
Documents (if any), cause the removal of such liens, or post security
against the consequences of their possible foreclosure and procure an
endorsement(s) to the title policy insuring Lender against the
consequences of the foreclosure or enforcement of such lien(s); and
(v) To pay the premiums for all policies of insurance required to
be furnished by Borrower pursuant to the Loan Agreement during the
Construction if such premiums are not paid by Borrower;
(b) Borrower's obligation to keep the Loan In Balance (as more
particularly defined and described in Article 11 of the Loan Agreement) and
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the full and prompt payment of all Deficiency Deposits;
(c) the full and prompt payment of any Enforcement Costs (as
hereinafter defined in Section 7 hereof).
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All obligations described in subsections (a) and (b) of this Section 1 are
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referred to herein as the "Obligations."
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2. In the event of any default by Borrower in performance of the
Obligations and the expiration of any applicable cure or grace period, Guarantor
agrees, on demand by Lender or any holder of the Note (which demand may be made
concurrently with notice to Borrower that Borrower is in default of its
obligations), to perform all the Obligations. After and Event of Default and
expiration of applicable cure period, Lender shall have the right, at its
option, either before, during or after commencing foreclosure or sale
proceedings, as the case may be, and before, during or after pursuing any other
right or remedy against Borrower or Guarantor, to perform any and all of the
Obligations by or through any agent, contractor or subcontractor of its
selection, all as Lender in its sole discretion deems proper, and Guarantor
shall indemnify and hold Lender free and harmless from and against any and all
loss, damage, cost, expense, injury, or liability Lender may suffer or incur in
connection with the exercise of its rights under this Guaranty or the
performance of the Obligations. Furthermore, Lender shall not have any
obligation to protect or insure any collateral for the Loan, nor shall Lender
have any obligation to perfect its security interest in any collateral for the
Loan.
During the course of any construction undertaken by Lender or any other
party on behalf of Lender in accordance with the terms of this Guaranty,
Guarantor shall pay on demand any amounts due to contractors, Subcontractors,
and material suppliers and for permits and licenses necessary or desirable in
connection therewith. Guarantor's obligations in connection with such work shall
not be affected by any errors or omissions of the General Contractor, Architect,
Lender's Consultant or any Subcontractor or agent or employee of any of the
foregoing in the design, supervision, and performance of the work; it being
understood that such risk is assumed by Guarantor. Neither the completion of the
Construction nor failure of said party to complete the Construction shall
relieve Guarantor of any liabilities hereunder; rather, such liability shall be
continuing and may be enforced by Lender to the end that the Construction shall
be timely completed, lien-free, without loss, cost, expense, injury or liability
of any kind to Lender.
All of the remedies set forth herein and/or provided for in any of the Loan
Documents or at law or equity shall be available to Lender, and the choice by
Lender of one such alternative over another shall not be subject to question or
challenge by Guarantor or any other person, nor shall any such choice be
asserted as a defense, setoff, or failure to mitigate damages in any action,
proceeding, or counteraction by Lender to recover or seeking any other remedy
under this Guaranty, nor shall such choice preclude Lender from subsequently
electing to exercise a different remedy. The parties have agreed to the
alternative remedies hereinabove specified in part because they recognize that
the choice of remedies in the event of a failure hereunder will necessarily be
and should properly be a matter of good faith business judgment, which the
passage of time and events may or may not prove to have been the best choice to
maximize recovery by Lender at the lowest cost to Borrower and/or Guarantor. It
is the intention of the parties that such good faith choice by Lender be given
conclusive effect regardless of such subsequent developments.
3. Guarantor does hereby (a) waive notice of acceptance of this Guaranty by
Lender and any and all notices and demands of every kind which may be required
to be given by Lender pursuant to any statute, rule or law, (b) agree to refrain
from asserting, until after repayment in full of the Loan, any defense, right of
set-off or other claim which Guarantor may have against Borrower, (c) waive any
defense, right of set-off or other claim which Guarantor or Borrower may have
against Lender, the holder of the Note, (d) waive any and all rights Guarantor
may have under any anti-deficiency statute or other similar protections, (e)
waive presentment for payment, demand for payment, notice of nonpayment or
dishonor, protest and notice of protest, diligence in collection and any and all
formalities which otherwise might be legally required to charge Guarantor with
liability, and (f) waive any failure by Lender to inform Guarantor of any facts
Lender may now or hereafter know about Borrower, the Project, the Loan, or the
transactions contemplated by the Loan Agreement, it being understood and agreed
that Lender has no duty so to inform and that Guarantor is fully responsible for
being and remaining informed by Borrower of all circumstances bearing on the
risk of nonperformance of the Obligations. Credit may be granted or continued
from time to time by Lender to Borrower without notice to or authorization from
Guarantor, regardless of the financial or other condition of Borrower at the
time of any such grant or continuation. Lender shall not have any obligation to
disclose or discuss with Guarantor its assessment of the financial condition of
Borrower. Guarantor acknowledges that no representations of any kind whatsoever
have been made by Lender. No modification or waiver of any of the provisions of
this Guaranty shall be binding upon Lender except as expressly set forth in a
writing duly signed and delivered by Lender.
4. Guarantor further agrees that Guarantor's liability as guarantor shall
not be impaired or affected by any renewals or extensions which may be made from
time to time, with or without the knowledge or consent of Guarantor of the time
for payment of interest or principal under the Note or by any forbearance or
delay in collecting interest or principal under the Note, or by any waiver by
Lender under the Loan Agreement, Mortgage or any other Loan Documents, or by
Lender's failure or election not to pursue any other remedies it may have
against Borrower or Guarantor, or by any change or modification in the Note,
Loan Agreement, Mortgage or any other Loan Document, or by the acceptance by
Lender of any additional security or any increase, substitution or change
therein, or by the release by Lender of any security or any withdrawal thereof
or decrease therein, or by the application of payments received from any source
to the payment of any obligation other than the indebtedness due under the Note
("Indebtedness"), even though Lender might lawfully have elected to apply such
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payments to any part or all of the Indebtedness, it being the intent hereof
that, subject to Lender's compliance with the terms of this Guaranty, Guarantor
shall remain liable for the performance of the Obligations, notwithstanding any
act or thing which might otherwise operate as a legal or equitable discharge of
a surety. Guarantor further understands and agrees that Lender may at any time
enter into agreements with Borrower to amend and modify the Note, Loan
Agreement, Mortgage or other Loan Documents, and may waive or release any
provision or provisions of the Note, Loan Agreement, Mortgage and other Loan
Documents or any thereof, and, with reference to such instruments, may make and
enter into any such agreement or agreements as Lender and Borrower may deem
proper and desirable, without in any manner impairing or affecting this Guaranty
or any of Lender's rights hereunder or Guarantor's obligations hereunder.
5. This is an absolute, present and continuing guaranty of performance and
completion and not of collection. 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 given in connection herewith or with
the Note, Loan Agreement, Mortgage or any of the other Loan Documents through
foreclosure or sale proceedings, as the case may be, under the Mortgage or
otherwise, or resorting to any other guaranties, and Guarantor hereby waives any
right to require Lender to join Borrower in any action brought hereunder or to
commence any action against or obtain any judgment against Borrower or to pursue
any other remedy or enforce any other right. Guarantor further agrees that
nothing contained herein or otherwise shall prevent Lender from pursuing
concurrently or successively all rights and remedies available to it at law
and/or in equity or under the Note, Loan Agreement, Mortgage or any other Loan
Documents, and the exercise of any of its rights or the completion of any of its
remedies shall not constitute a discharge of Guarantor's obligations hereunder,
it being the purpose and intent of Guarantor that the obligations of Guarantor
hereunder shall be absolute, independent and unconditional under any and all
circumstances whatsoever. None of Guarantor's obligations under this Guaranty or
any remedy for the enforcement thereof shall be impaired, modified, changed or
released in any manner whatsoever by any impairment, modification, change,
release or limitation of the liability of Borrower under the Note, Loan
Agreement, Mortgage or other Loan Documents or by reason of the bankruptcy of
Borrower or by reason of any creditor or bankruptcy proceeding instituted by or
against Borrower. This Guaranty shall continue to be effective or be reinstated
(as the case may be) if at any time payment of all or any part of any sum
payable pursuant to the Note, Loan Agreement, Mortgage or any other Loan
Document is rescinded or otherwise required to be returned by Lender upon the
insolvency, bankruptcy, dissolution, liquidation, or reorganization of Borrower,
or upon or as a result of the appointment of a receiver, intervenor, custodian
or conservator of or trustee or similar officer for, Borrower or any substantial
part of its property, or otherwise, all as though such payment to Lender had not
been made, regardless of whether Lender contested the order requiring the return
of such payment.
6. In the event Lender or any holder of the Note shall assign the Note to
any lender or other entity to secure a loan from such Lender or other entity to
Lender or such holder of the Note for an amount not in excess of the amount
which will be due, from time to time, from Borrower to Lender under the Note
with interest not in excess of the rate of interest which is payable by Borrower
to Lender under the Note, Guarantor will accord full recognition thereto and
agree that all rights and remedies of Lender or such holder hereunder shall be
enforceable against Guarantor by such Lender or other entity with the same force
and effect and to the same extent as would have been enforceable by Lender or
such holder but for such assignment; provided, however, that unless Lender shall
otherwise consent in writing, Lender shall have an unimpaired right, prior and
superior to that of its assignee or transferee, to enforce this Guaranty for
Lender's benefit to the extent any portion of the Indebtedness or any interest
therein is not assigned or transferred.
7. If: (a) this Guaranty is placed in the hands of an attorney for
collection or is collected through any legal proceeding; (b) an attorney is
retained to represent Lender in any bankruptcy, reorganization, receivership, or
other proceedings affecting creditors' rights and involving a claim under this
Guaranty; (c) an attorney is retained to provide advice or other representation
with respect to this Guaranty; or (d) an attorney is retained to represent
Lender in any proceedings whatsoever in connection with this Guaranty and Lender
prevails in any such proceedings, then Guarantor shall pay to Lender upon demand
all reasonable attorney's fees, costs and expenses incurred in connection
therewith (all of which are referred to herein as "Enforcement Costs"), in
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addition to all other amounts due hereunder, regardless of whether all or a
portion of such Enforcement Costs are incurred in a single proceeding brought to
enforce this Guaranty as well as the other Loan Documents.
8. The parties hereto intend and believe that each provision in this
Guaranty comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of law to be in
violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of this Guaranty to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force to the fullest possible extent that they are legal, valid and enforceable,
that the remainder of this Guaranty shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions were
not contained therein, and that the rights, obligations and interest of Lender
or the holder of the Note under the remainder of this Guaranty shall continue in
full force and effect.
9. TO THE GREATEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY WAIVES ANY AND
ALL RIGHTS TO REQUIRE MARSHALLING OF ASSETS BY LENDER. WITH RESPECT TO ANY SUIT,
ACTION OR PROCEEDINGS RELATING TO THIS GUARANTY (EACH, A "PROCEEDING"), LENDER
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AND GUARANTOR IRREVOCABLY: (A) SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE
STATE AND FEDERAL COURTS HAVING JURISDICTION IN ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇; (B) WAIVE ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF
VENUE OF ANY PROCEEDING BROUGHT IN ANY SUCH COURT; (C) WAIVE ANY CLAIM THAT ANY
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM; AND (D) FURTHER WAIVE THE
RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDING, THAT SUCH COURT DOES NOT HAVE
JURISDICTION OVER SUCH PARTY. NOTHING IN THIS GUARANTY SHALL PRECLUDE LENDER
FROM BRINGING A PROCEEDING IN ANY OTHER JURISDICTION NOR WILL THE BRINGING OF A
PROCEEDING IN ANY ONE OR MORE JURISDICTIONS PRECLUDE THE BRINGING OF A
PROCEEDING IN ANY OTHER JURISDICTION. LENDER AND GUARANTOR FURTHER AGREE AND
CONSENT THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR
UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY PROCEEDING IN ANY STATE OR
UNITED STATES COURT SITTING IN THE CITY OF ORLANDO AND MAY BE MADE BY CERTIFIED
OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE APPLICABLE PARTY
AT THE ADDRESS INDICATED BELOW, AND SERVICE SO MADE SHALL BE COMPLETE UPON
RECEIPT; EXCEPT THAT IF SUCH PARTY SHALL REFUSE TO ACCEPT DELIVERY, SERVICE
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SHALL BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED.
10. Any indebtedness of Borrower to Guarantor now or hereafter existing is
hereby subordinated to the performance of the Obligations. Guarantor agrees
that, until the entire Indebtedness has been paid in full, Guarantor will not
seek, accept, or retain for its own account, any payment from Borrower on
account of such subordinated debt. Any payments to Guarantor on account of such
subordinated debt shall be collected and received by Guarantor in trust for
Lender and shall be paid over to Lender on account of the Indebtedness without
impairing or releasing the obligations of Guarantor hereunder.
11. Any amounts received by Lender from any source on account of the Loan
may be utilized by Lender for the performance of the Obligations and in such
order as Lender may from time to time elect.
12. GUARANTOR AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT
UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING
FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND AGREE
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
13. Any notice, demand, request or other communication which any party
hereto may be required or may desire to give hereunder shall be in writing and
shall be deemed to have been properly given (a) if hand delivered, when
delivered; (b) if mailed by United States Certified Mail (postage prepaid,
return receipt requested), three Business Days after mailing (c) if by Federal
Express or other reliable overnight courier service, on the next Business Day
after delivered to such courier service or (d) if by telecopier on the day of
transmission so long as copy is sent on the same day by overnight courier as set
forth below:
GUARANTOR: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
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Facsimile:
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American Leisure Holdings, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone:
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Facsimile:
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TDS Development, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone:
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Facsimile:
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with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
LENDER: KeyBank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Real
Estate Department
Telephone: 407/▇▇▇-▇▇▇▇
Facsimile: 407/241-3749
with a copy to: ▇▇▇▇▇ & Lardner LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., Esq.
Telephone: 407/▇▇▇-▇▇▇▇
Facsimile: 407/248-1743
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
14. In order to induce Lender to make the Loan, Guarantor makes the
following representations and warranties to Lender set forth in this Section.
Guarantor acknowledges that but for the truth and accuracy of the matters
covered by the following representations and warranties, Lender would not have
agreed to make the Loan.
(a) Guarantor is duly formed, validly existing and in good standing in
its state of organization and has qualified to do business and is in good
standing in any state in which it is necessary in the conduct of its
business.
(b) Guarantor maintains an office at the address set forth for such
party in Section 13.
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(c) Any and all balance sheets, net worth statements, and other
financial data with respect to Guarantor which have heretofore been given
to Lender by or on behalf of Guarantor fairly and accurately present the
financial condition of Guarantor as of the respective dates thereof.
(d) The execution, delivery, and performance by Guarantor of this
Guaranty does not and will not contravene or conflict with (i) any Laws,
order, rule, regulation, writ, injunction or decree now in effect of any
Government Authority, or court having jurisdiction over Guarantor, (ii) any
contractual restriction binding on or affecting Guarantor or Guarantor's
property or assets which may adversely affect Guarantor's ability to
fulfill its obligations under this Guaranty, (iii) the instruments creating
any trust holding title to any assets included in Guarantor's financial
statements, or (iv) the organizational or other documents of Guarantor.
(e) This Guaranty creates legal, valid, and binding obligations of
Guarantor enforceable in accordance with its terms.
(f) Except as disclosed in writing to Lender, there is no action,
proceeding, or investigation pending or, to the knowledge of Guarantor,
threatened or affecting Guarantor, which may adversely affect Guarantor's
ability to fulfill his obligations under this Guaranty. There are no
judgments or orders for the payment of money rendered against Guarantor for
an amount in excess of $100,000 which have been undischarged for a period
of ten (10) or more consecutive days and the enforcement of which is not
stayed by reason of a pending appeal or otherwise. Guarantor is not in
default under any agreements which may adversely affect Guarantor's ability
to fulfill its obligations under this Guaranty.
(g) All statements set forth in the Recitals are true and correct.
All of the foregoing representations and warranties shall be deemed
remade on the date of the first disbursement of Loan proceeds, on the date
of each advance of Loan proceeds, and upon any extension of the Loan
pursuant to the Loan Agreement. Guarantor hereby agrees to indemnify and
hold Lender free and harmless from and against all loss, cost, liability,
damage, and expense, including attorney's fees and costs, which Lender may
sustain by reason of the inaccuracy or breach of any of the foregoing
representations and warranties as of the date the foregoing representations
and warranties are made and are remade.
15. Guarantor shall deliver or cause to be delivered to Lender all of the
Guarantor financial statements to be delivered in accordance with the terms of
the Loan Agreement.
16. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Guarantor and shall not be
discharged in whole or in part by the death or the dissolution of any principal
in Guarantor. If more than one party executes this Guaranty, the liability of
all such parties shall be joint and several.
17. THIS GUARANTY, THE NOTE, AND ALL OTHER INSTRUMENTS EVIDENCING AND
SECURING THE LOAN SECURED HEREBY WERE NEGOTIATED IN THE STATE OF FLORIDA, AND
DELIVERED BY GUARANTOR OR BORROWER, AS APPLICABLE, AND ACCEPTED BY LENDER IN THE
STATE OF FLORIDA, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP
TO THE PARTIES AND THE UNDERLYING TRANSACTIONS EMBODIED HEREBY. IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITATION, MATTERS OF CONSTRUCTION OF THE IMPROVEMENTS AND
PERFORMANCE OF THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER, THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN
SUCH STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
18. Lender shall be entitled to honor any request for Loan proceeds made by
Borrower and shall have no obligation to see to the proper disposition of such
advances. Guarantor agrees that his obligations hereunder shall not be released
or affected by reason of any improper disposition by Borrower of such Loan
proceeds.
19. This Guaranty may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty in the State of
Florida as of the date first written above.
"GUARANTOR":
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
AMERICAN LEISURE HOLDINGS, INC., a
Nevada corporation
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
TDS DEVELOPMENT, LLC, a Florida limited
liability company
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Manager